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 ----------------------------------------------------------------- |Ayes:|Chesbro, Grove, Bigelow, |Ayes:|Achadjian, Levine, Alejo, | | |Garcia, Muratsuchi, | |Bradford, Gordon, | | |Patterson, Williams | |Melendez, Mullin, | | | | |Waldron, Frazier | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Skinner, Stone | | | | | | | | ----------------------------------------------------------------- APPROPRIATIONS 15-1 ----------------------------------------------------------------- |Ayes:|Gatto, Harkey, Bigelow, | | | | |Bocanegra, Bradford, Ian | | | | |Calderon, Campos, | | | | |Donnelly, Eggman, Gomez, | | | | |Hall, Linder, Pan, | | | | |Wagner, Weber | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Ammiano | | | | | | | | ----------------------------------------------------------------- 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 AB 1273 Page 2 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, AB 1273 Page 3 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 AB 1273 Page 4 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 AB 1273 Page 5 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 AB 1273 Page 6 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 AB 1273 Page 7 FN: 0000957