BILL ANALYSIS                                                                                                                                                                                                    



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          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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