BILL ANALYSIS Ó
AB 1273
Page 1
ASSEMBLY THIRD READING
AB 1273 (Ting)
As Amended April 24, 2013
Majority vote
NATURAL RESOURCES 7-2 LOCAL GOVERNMENT 9-0
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|Ayes:|Chesbro, Grove, Bigelow, |Ayes:|Achadjian, Levine, Alejo, |
| |Garcia, Muratsuchi, | |Bradford, Gordon, |
| |Patterson, Williams | |Melendez, Mullin, |
| | | |Waldron, Frazier |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Skinner, Stone | | |
| | | | |
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APPROPRIATIONS 15-1
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|Ayes:|Gatto, Harkey, Bigelow, | | |
| |Bocanegra, Bradford, Ian | | |
| |Calderon, Campos, | | |
| |Donnelly, Eggman, Gomez, | | |
| |Hall, Linder, Pan, | | |
| |Wagner, Weber | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Ammiano | | |
| | | | |
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SUMMARY : Authorizes the San Francisco Port Commission (Port) to
approve a multi-use development on public trust lands (Pier
30-32) that includes a multipurpose venue (for Golden State
Warriors basketball games, at least three public trust
consistent events a year, and other events), if the Port finds
that certain conditions are met. Specifically, this bill :
1)Authorizes the Port to approve a development on the San
Francisco waterfront at Pier 30-32, that includes a
multipurpose venue if the Port finds that all of the following
conditions are met:
a) The development is designed to attract people to the
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waterfront, increase public enjoyment of the San Francisco
Bay, encourage public trust activities, and enhance public
use of trust assets and resources on the waterfront;
b) The development is designed to provide multiple
significant views of the Bay Bridge and the San Francisco
Bay from a variety of elevations and vantage points,
including significant views of the Bay Bridge and the San
Francisco Bay from the interior concourses of the
multipurpose venue and views of the Bay Bridge from certain
seating areas within the multipurpose venue;
c) The multipurpose venue facility is located to minimize
interference with public views of San Francisco Bay to the
extent feasible;
d) The multipurpose venue facility provides free public
access to patrons and nonpatrons alike to exterior portions
of the building from which the public can view the San
Francisco Bay, subject to reasonable limitations based on
security. In addition, to encourage the public to come to
the bay's edge, the design of the multipurpose venue shall
provide significant free public views of the inside of the
multipurpose venue from the outside, and the operator of
the multipurpose venue shall be required to allow the
public to view the inside of the multipurpose venue from
the outside during events whenever feasible;
e) The development is designed to achieve and enhance
maximum feasible public access to and minimum fill in the
bay in a manner that is consistent, as determined by Bay
Conservation and Development Commission (BCDC) in its
separate permit process, with the Special Area Plan, the
McAteer-Petris Act, and the Bay Plan;
f) The development includes significant public plazas open
to the public on a substantially permanent basis that can
be accessed via public pedestrian promenades at the site
that encourage public use of the site and provide a variety
of views of the San Francisco Bay and the San Francisco
cityscape;
g) The development includes continuous public access around
the perimeter of Pier 30-32 open to the public year round,
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with limited exceptions for temporary safety-, security-
and maritime-based interruptions, and includes an
interpretive program to enhance the public's enjoyment of
the site;
h) The development includes a significant and appropriate
maritime program as specified.
i) Any nonmaritime office space on Pier 30-32 is limited as
specified;
j) All retail venues on Pier 30-32 are limited to
venue-supporting or trust-retail uses;
aa) Any parking included on Pier 30-32 is limited as
specified;
bb) Public trust-consistent events, uses, and programming
are offered regularly at the site of the development. The
site shall be made available to the Port or its designee
for those events on at least 15 days per year, including at
least three days on which the multipurpose venue shall be
made available to the Port or its designee for those
events. These events shall include free and low-cost
visitor-serving events;
cc) A public community room is available at the site for
free or low-cost use by members of the public statewide,
without preference to local residents or organizations;
dd) The development of the site is required to be consistent
with a plan to address anticipated sea-level rise through
year 2050; and
ee) The development approved for Seawall Lot 330 (which is
across the Embarcadero from Pier 30-32) includes a hotel or
other visitor-serving uses that the Port finds will
materially enhance public trust uses on Pier 30-32 and the
San Francisco waterfront.
EXISTING LAW :
1)Protects, pursuant to the common law doctrine of the public
trust (Public Trust Doctrine), the public's right to use
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California's waterways for commerce, navigation, fishing,
boating, natural habitat protection, and other water oriented
activities. The public trust doctrine provides that filled
and unfilled tide and submerged lands and the beds of lakes,
streams, and other navigable waterways (i.e., public trust
lands) are to be held in trust by the state for the benefit of
the people of California.
2)Grants, in trust, state public trust lands to over 80 local
public agencies to be managed for the benefit of all the
people of the state and pursuant to the Public Trust Doctrine
and terms of the applicable granting statutes.
3)Grants, pursuant to the Burton Act, to the Port, in trust, the
public trust lands in the harbor of San Francisco for purposes
of commerce, navigation, and fisheries and subject to other
terms and conditions specified in the act.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, negligible costs to the State Lands Commission and
San Francisco Bay Conservation Development Commission.
COMMENTS : The primary purpose of this bill is to have the
Legislature authorize a mix-use development project, which
includes the Golden State Warriors' basketball arena, on a pier
located on tide and submerged lands (i.e., public trust lands)
in San Francisco. The bill asserts that the project is
consistent with the common law public trust. The challenge with
this assertion is that the common law Public Trust Doctrine, as
interpreted by the U.S. Supreme Court, places limitations on the
Legislature's authority to use trust lands for nontrust
purposes. A basketball arena, which is a major feature of the
project, is not a traditional public trust use-it does not
involve water related commerce, navigation, or fishing.
However, there are examples of nontrust uses on public trust
lands that have been deemed legitimate by the courts because
they are incidental to and accommodate other trust uses.
Additionally, the courts have recognized that the public trust
doctrine is flexible to address changing public needs related to
public trust lands.
The Public Trust Doctrine and Trust Uses . As stated above, the
Public Trust Doctrine in California is a common law doctrine
that protects the public's right to use the state's waterways
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for commerce, navigation, fishing, boating, natural habitat
protection, and other water oriented activities. This doctrine
applies to filled and unfilled tide and submerged lands and the
beds of lakes, streams, and other navigable waterways, otherwise
known as public trust lands.
The origins of the Public Trust Doctrine are in ancient Roman
law, which held that "by the law of nature these things are
common to mankind - the air, running water, the sea and
consequently the shores of the sea." From this, the English
common law evolved the concept of the public trust, under which
the king, in his sovereign capacity, owns all of the navigable
waterways and the lands lying beneath them "as trustee of a
public trust for the benefit of the people." According to the
U.S. Supreme Court in 1842, "[w]hen the American Revolution took
place, the people of each state became themselves sovereign; and
in that character held the absolute right to all their navigable
waters, and the soils under them, for their own common use..."
Under the equal footing doctrine of the U.S. Constitution,
states admitted to the Union after the Revolution were entitled
to the lands beneath their navigable waters subject to the same
trust, irrespective of the ownership of the adjacent lands. As
such, when California joined the Union on September 9, 1850, it
acquired in trust for the benefit of the people of California,
all tide and submerged lands and the beds of lakes, streams, and
other navigable waterways located within its boundaries.
As articulated by the U.S. Supreme Court in 1892, public trust
lands are held "in trust for the people of the state, [so] that
they may enjoy the navigation of the waters, carry on commerce
over them, and have liberty of fishing therein, freed from the
obstruction or interference of private parties." (These uses
are commonly referred to as "traditional public trust uses.")
Subsequent state court cases held that theses traditional public
trust uses include the right to fish, hunt, bathe, swim, to use
for boating and general recreation purposes the navigable waters
of the state, and to use the bottom of navigable waters for
anchoring, standing, or other purposes.
As public needs related to the waterways changed, so did the
court's interpretation of valid public trust uses. This was
made clear in 1971, when the Supreme Court of California held
that "[t]he public uses to which tidelands are subject are
sufficiently flexible to encompass changing public needs. In
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administering the trust the state is not burdened with an
outmoded classification favoring one mode of utilization over
another. There is a growing public recognition that one of the
most important public uses of tidelands - a use encompassed
within the tidelands trust - is the preservation of those lands
in their natural state, so that they may serve as ecological
units for scientific study, as open space, and as environments
which provide food and habitat for birds and marine life, and
which favorably affect scenery and climate of the area."
In addition to recognizing the flexibility of the Public Trust
Doctrine, the courts have upheld projects devoted to purposes
unrelated to the trust when such purposes were incidental to and
accommodated actual trust uses. These projects include 1) a
convention and banquet building on Port of Oakland lands that
gives trade, shipping, and commercial associations a place to
meet or hold conventions and exhibitions, 2) a Y.M.C.A. for the
use of "seaman, naval officers and enlisted men, and other
persons engaged in and about the harbor and commerce, fishery,
and navigation," and 3) a restaurant, bar, motel, swimming pool,
shops, and a parking area catering to, and serving, yachtsmen,
boat owners and others using the waters adjacent thereto.
In another line of cases, the courts have struck down
legislative actions that authorized the use of public trust
assets for municipal purposes. The courts have held that since
public trust assets are held in trust for the benefit of the
people of the state, it is not appropriate to dedicate these
assets to municipal purposes unconnected with the general
purposes of the trust.
Considering the land use restrictions of the Public Trust
Doctrine and the limitations the courts have placed on the
Legislature regarding this issue, the Legislature should
seriously consider the details of the basketball arena and the
Pier 30-32 development project to determine if it is a legal use
of public trust lands. As indicated above in the summary,
several conditions have been placed on the development to ensure
public trust related benefits.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
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FN: 0000957