Amended in Assembly June 15, 2016

Senate BillNo. 1172


Introduced by Senator Hancock

February 18, 2016


An act to repeal Chapter 211 of the Statutes of 1919, relating to tidelands and submerged lands in the Bay of San Francisco, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

SB 1172, as amended, Hancock. Tidelands and submerged lands: City of Albany.

Existing law grants in trust to the City of Albany certain designated tidelands and submerged lands, both filled and unfilled, for specified uses. The grant, among other things, requires that those lands be used in conformity with the Albany Waterfront Plan and be improved in accordance with the plan on or before January 1, 1988, or title therein shall revert to the state. Existing law imposes various requirements regarding public rights in the granted lands, leasing of lands by the city, management and disposition of revenues from the lands, and the determination of boundaries of the lands granted that are subject to the jurisdiction of the San Francisco Bay Conservation and Development Commission. Existing law requires 85% of excess trust revenues, as specified, to be transmitted to the Treasurer and deposited in the General Fund.

This bill would delete those provisions and instead require that, on and after January 1, 2022, the use of those trust lands, as described, conform to an approved trust lands use plan, prescribed by the bill, and all leases or agreements proposed or entered into by the City of Albany, as trustee of those lands, also be consistent with the public trust doctrine, as defined, and conform to the plan. The bill would require the trustee, on or before September 30, 2022, and on or before September 30 of every succeeding 5th year thereafter, to submit a report to the State Lands Commission. By imposing new duties on a local government with regard to providing for the use and management of those trust lands, the bill would impose a state-mandated local program.

Existing law, the Kapiloff Land Bank Act, creates the Land Bank Fund and continuously appropriates money in the fund, subject to a statutory trust, to thebegin delete commission,end deletebegin insert State Lands Commission,end insert acting as the Land Bank Trustee, to acquire real property or any interest in real property for the purposes of public trust settlements.

The bill would require on June 30, 2021, and at the end of every fiscal year thereafter, that 20% of all gross revenue generated from thebegin insert City of Albanyend insert trust lands be transmitted to the commission and, of this amount transmitted, would require the commission to allocate 80% to the Treasurer for deposit in the General Fund and 20% for deposit in the Land Bank Fund for expenditure by the commission pursuant to the act, thereby making an appropriation.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: 23. Appropriation: yes. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Chapter 211 of the Statutes of 1919, as amended
2by Chapter 1223 of the Statutes of 1977, is repealed.

3

SEC. 2.  

(a) For the purposes of this act, the following
4definitions shall apply:

5(1) “Act” means Sections 2 to 10, inclusive, of the act enacting
6this section.

7(2) “Commission” means the State Lands Commission.

8(3) “Public trust doctrine” means the common law doctrine, as
9enunciated by the court in National Audubon Society v. Superior
10Court (1983) 33 Cal.3d 419 and other relevant judicial decisions,
11specifying the state’s authority as sovereign to exercise a
12continuous supervision and control over the navigable waters of
P3    1the state, the lands underlying those waters, and nonnavigable
2tributaries to navigable waters, including the maritime or water
3dependent commerce, navigation, and fisheries, and the
4preservation of lands in their natural state for scientific study, open
5space, wildlife habitat, and water-oriented recreation.

6(4) “State” means the State of California.

7(5) “Trustee” means the City of Albany, a municipal corporation.

8(6) “Trust lands” means Parcel 1, Parcel 2, and Parcel 3, as
9described in Section 10 of this act, situated in the County of
10Alameda.

11(7) “Trust revenues” means all revenues received from trust
12lands and trust assets.

13(8) “Trust lands use plan” or “plan” means the trust lands use
14plan required to be submitted by the trustee to the commission
15pursuant to Section 4 of this act.

16(9) “Trust lands use report” means the report of the trustee’s
17utilization of the trust lands required to be submitted by the trustee
18pursuant to Section 5 of this act.

19(b) There is hereby granted in trust to the City of Albany, and
20to its successors, all of the rights, title, and interest of the state,
21held by the state by virtue of its sovereignty, in and to three parcels
22of land situated in the County of Alameda as described in Section
2310 of this act.

24

SEC. 3.  

The trust grant specified in subdivision (b) of Section
252 of this act is subject to all of the following express conditions:

26(a) The trust lands shall be held by the trustee in trust for the
27benefit of all the people of the state for purposes consistent with
28the public trust doctrine, including, but not limited to, maritime
29or water-dependent commerce, navigation, and fisheries,
30preservation of the lands in their natural state for scientific study,
31open space, wildlife habitat, and water-oriented recreation.

32(b) On and after January 1, 2022, the use of the trust lands shall
33conform to an approved trust lands use plan, as required by Section
344 of this act.

35(c) The trustee shall not, at any time, grant, convey, give, or
36otherwise alienate or hypothecate the trust lands, or any part of
37the trust lands, to any person, firm, entity, or corporation for any
38purposes whatsoever.

39(d) The trustee may lease the trust lands, or any part of the trust
40lands, for limited periods, not exceeding 49 years, for purposes
P4    1consistent with the trust upon which those lands are held, as
2specified in subdivision (a). The trustee may collect and retain
3rents and other trust revenues from those leases, under rules and
4regulations adopted in accordance with subdivision (d) of Section
54 of this act, and in accordance with all of the following
6requirements:

7(1) On and after January 1, 2022, all leases or agreements
8proposed or entered into by the trustee shall be consistent with the
9trust lands use plan approved by the commission, as required by
10Section 4 of this act. Any leases entered into prior to January 1,
112022, shall be consistent with the public trust doctrine and the
12terms of subdivision (a).

13(2) The lease rental rates shall be for a fair annual rent.

14(3) The lease shall be in the best interest of the state.

15(e) When managing, conducting, operating, or controlling the
16trust lands or an improvement, betterment, or structure on the trust
17lands, the trustee or his or her successor shall not discriminate in
18rates, tolls, or charges for any use or service in connection with
19those actions and shall not discriminate against or unlawfully
20segregate any person or group of persons because of race, religious
21creed, color, national origin, ancestry, physical disability, mental
22disability, medical condition, genetic information, marital status,
23sex, gender, genderbegin delete identify,end deletebegin insert identity,end insert gender expression, age,
24sexual orientation, or military and veteran status, in accordance
25with Article 1 (commencing with Section 12940) of Chapter 6 of
26Part 2.8 of Division 3 of Title 2 of the Government Code and other
27state antidiscrimination laws, for any use or service in connection
28with those actions.

29(f) The state shall have the right to use, without charge, a
30transportation, landing, or storage improvement, betterment, or
31structure constructed upon the trust lands for a vessel or other
32watercraft or railroad owned or operated by, or under contract to,
33the state.

34(g) The trust lands are subject to the express reservation and
35condition that the state may, at any time in the future, use those
36lands or any portion of those lands for highway purposes without
37compensation to the trustee or a person, firm, or public or private
38corporation claiming a right to those lands, except, if improvements
39have been placed with legal authority upon the property taken by
40the state for highway purposes, compensation shall be made to the
P5    1person entitled to the value of the interest in the improvements
2taken or the damages to that interest.

3(h) There is reserved to the people of the state the right to fish
4in the waters over the trust lands, with the right of convenient
5access to those waters over the trust lands for this purpose.

6(i) There is excepted and reserved to the state all remains or
7artifacts of archaeological or historical significance and all deposits
8of minerals in the trust lands, including, but not limited to, all
9substances specified in Section 6407 of the Public Resources Code,
10and the right to prospect for, mine, and remove those deposits from
11the lands.

12(j) Prior to entering into a lease, franchise, or agreement
13concerning the trust lands, the governing body of the trustee shall
14first adopt a resolution declaring its intention to take that action.
15The resolution shall describe the lands or improvements that are
16the subject of the lease, franchise, or agreement in such a manner
17as to identify them accurately and shall specify the minimum rental
18or other consideration and the other terms and conditions of the
19lease, franchise, or agreement. The resolution shall be submitted
20to the commission prior to entering into a lease, franchise, or
21agreement.

22(k) The trustee shall reimburse the commission for all expenses
23incurred in the administration of this act, including periodic audits
24or investigations.

25

SEC. 4.  

(a) On or before January 1, 2022, the trustee shall
26submit to the commission a trust lands use plan describing any
27proposed development, preservation, or other use of the trust lands.
28The trustee shall thereafter submit to the commission for approval
29all changes or amendments to, or extensions of, the trust lands use
30plan. The trustee may apply to the commission for, and the
31commission may approve, reasonable extensions of time to meet
32this deadline.

33(b) The commission shall review with reasonable promptness
34the trust lands use plan submitted by the trustee and any changes
35or amendments to determine whether they are consistent with the
36public trust doctrine and the requirements of this act. Based upon
37its review, the commission shall either approve or disapprove the
38plan. If the commission disapproves the plan, the commission shall
39notify the trustee and the trustee shall submit a revised plan to the
40commission no later than 180 days after the date of notice of
P6    1disapproval. If the commission determines the revised plan is
2inconsistent with the public trust doctrine or the requirements of
3this act, all rights, title, and interest of the trustee in and to the trust
4lands and improvements on the trust lands shall revert to the state.

5(c) The trust lands use plan shall consist of a plan, program, or
6other document that includes all of the following:

7(1) A general description of the type of uses planned or proposed
8for the trust lands. The location of these land uses shall be shown
9on a map or aerial photograph.

10(2) The projected statewide benefit to be derived from the
11planned or proposed uses of the trust lands, including, but not
12limited to, financial benefit.

13(3) The proposed method of financing the planned or proposed
14uses of the trust lands, including estimated capital costs, annual
15operating costs, and anticipated annual trust revenues.

16(4) An estimated timetable forbegin insert theend insert implementation of the trust
17lands use plan or each phase of the plan.

18(5) A description of how the trustee proposes to protect and
19preserve natural and manmade resources and facilities located on
20trust lands and operated in connection with the use of the trust
21lands, including, but not limited to, addressing impacts from sea
22level rise.

23(d) The governing body of the trustee shall also submit to the
24 commission, as part of the trust lands use plan, for itsbegin delete approval,end delete
25begin insert approvalend insert procedures, rules, and regulations to govern the use of
26or development of the trust lands. These rules and regulations shall
27include, but are not limited to, lease rates, the basis upon which
28the rates are established, lease terms and conditions, provisions
29for renegotiation of rates and terms and assignments, and any other
30information as may be required by the commission.

31(e) Upon request, the trustee shall submit to the commission a
32copy of all leases and agreements entered into, renewed, or
33renegotiated.

34

SEC. 5.  

(a) On or before September 30, 2022, and on or before
35September 30 of every succeeding fifth year, the trustee shall
36submit a report of its utilization of the trust lands for each
37immediately preceding five-calendar-year period ending with June
3830 of the calendar year in which the report is required to be
39submitted.

P7    1(b) The report required by this section shall include all of the
2following:

3(1) A general description of the uses to which the trust lands
4have been placed during the period covered by the report.

5(2) A list of the holders of leases or permits that have been
6granted or issued by thebegin delete trustee, whichend deletebegin insert trustee. Theend insert list shall specify
7all of the following, as to each holder:

8(A) The use to which the trust lands have been placed by the
9owner or holder.

10(B) The consideration provided for in each lease or permit and
11the consideration actually received by the trustee for the lease or
12permit granted or issued.

13(C) An enumeration of the restrictions that the trustee has placed
14on the use of the trust lands, and each area of the trust lands, for
15the period covered by the report.

16(c) A report shall not be required if the utilization of the trust
17lands within the immediately preceding five-calendar-year period
18is identical to the utilization of the trust lands as stated in a
19previously submitted report. If a new report is not submitted, the
20trustee shall submit a letter to the commission stating that its
21utilization of the trust lands has not changed during the immediately
22preceding five-calendar-year period. The letter required in this
23section shall also include the name and date of the utilization report
24that contains the applicable uses of the trust lands.

25

SEC. 6.  

(a) The trustee shall demonstrate good faith in carrying
26out the provisions of its trust lands use plan and amending it when
27necessary in accordance with subdivision (a) of Section 4 of this
28act.

29(b) If the commission determines that the trustee has
30substantially failed to improve, restore, preserve, or maintain the
31trust lands, as required by the trust lands use plan, or has
32unreasonably delayed implementation of the trust lands use plan,
33all rights, title, and interest of the trustee in and to the trust lands
34and improvements on the trust lands shall revert to the state.

35

SEC. 7.  

(a) (1) The trustee shall establish and maintain
36accounting procedures, in accordance with generally accepted
37accounting principles, providing accurate records of all revenues
38received from the trust lands and trust assets and of all expenditures
39of those revenues.

P8    1(2) All trust revenues received from trust lands and trust assets
2shall be expended only for those uses and purposes consistent with
3this act. The trustee shall provide for the segregation ofbegin delete fundsend deletebegin insert the
4 revenuesend insert
derived from the use of the trust lands by the trustee from
5other city municipal funds, so as to ensure that trust revenues are
6only expended to enhance or maintain the trust lands in accordance
7with the uses and purposes for which the trust lands are held.

8(3) Trust revenues may be expended to acquire appropriate
9upland properties to benefit and enhance the trust, subject to a
10determination by the commission that this acquisition is consistent
11with this act and in the best interests of the state. Property acquired
12with these trust revenues shall be considered an asset of the trust
13and subject to the terms and conditions of this act.

14(b) The trustee shall comply with Section 6306 of the Public
15Resources Code.

16(c) (1) Before expending trust revenues for any single capital
17improvement on the trust lands involving an amount in excess of
18two hundred fifty thousand dollars ($250,000) in the aggregate,
19the trustee shall file with the commission a detailed description of
20the capital improvement not less than 120 days prior to the time
21of any disbursement of trust revenues for, or in connection with,
22that capital improvement.

23(2) Within 120 days after the time of a filing specified in
24paragraph (1), the commission shall determine whether the capital
25improvement is in the statewide interest and benefit and, if the
26filing is made on or before December 1, 2021, whether it is
27consistent with subdivision (a) of Section 3 of this act or, if the
28filing is made on or after January 1, 2022, whether it is consistent
29with the trust lands use plan. The commission may request the
30opinion of the Attorney General on the matter, and if the
31commission makes this request, the Attorney General shall deliver
32a copy of the opinion to the trustee with the notice of its
33determination.

34(3) If the commission notifies the trustee that the capital
35improvement is not authorized, the trustee shall not disburse any
36trust revenues for, or in connection with, the capital improvement,
37unless it is determined to be authorized by a final order or judgment
38of a court of competent jurisdiction.

39(4) The trustee may bring suit against the statebegin delete for the purpose
40of securingend delete
begin insert to secureend insert an order or judgment for purposes of
P9    1paragraphbegin delete (3), whichend deletebegin insert (3). Theend insert suit shall have priority over all other
2civil matters. Service shall be made upon the executive officer of
3the commission and the Attorney General, and the Attorney
4General shall defend the state in that suit. If judgment is given
5against the state in the suit, no costs may be recovered.

6(d) On June 30, 2021, and at the end of every fiscal year
7thereafter, 20 percent of all gross revenue generated from the trust
8lands shall be transmitted to the commission. Of this amount
9transmitted, the commission shall allocate 80 percent to the
10Treasurer for deposit in the General Fund and 20 percent to the
11 Treasurer for deposit in the Land Bankbegin delete Fundend deletebegin insert Fund, created
12pursuant to Section 8610 of the Public Resources Code,end insert
for
13expenditure pursuant tobegin delete Divisionend deletebegin insert the Kapiloff Land Bank Act
14(Divisionend insert
7 (commencing with Section 8600) of the Public
15Resourcesbegin delete Codeend deletebegin insert Code)end insert for management of the commission’s
16granted lands program.

17(e) The commission may, from time to time, institute a formal
18inquiry to determine that the terms and conditions of this act, and
19amendments to this act, have been complied with and that all other
20applicable provisions of law concerning the trust lands are being
21complied with in good faith.

22(f) The commission shall approve in advance of expenditure
23any reimbursement for expenditures of nontrust revenues for
24improvements made to the trust or, if not approved, those
25expenditures shall be deemed a gift to the trust.

26

SEC. 8.  

(a) If the commission finds that the trustee has violated
27or is about to violate the terms of its trust grant or any other
28principle of law relating to its obligation under the public trust
29doctrine or under this act, the commission shall notify the trustee
30of the violation.

31(b) The trustee shall have 30 days frombegin insert theend insert receipt of a notice
32of violation to conform to the terms of its grant and the principles
33of law under the public trust doctrine. If the trustee fails or refuses
34to take those actions, the commission may bring an action to
35enforce the rights of the state and people as settlor beneficiary of
36the public trust doctrine.

37(c) The Attorney General shall represent the statebegin delete and peopleend delete
38 in all actions or proceedings taken pursuant to this section. If the
39judgment is given against the state in the action or proceeding, no
40costs shall be recovered from the state and people.

begin delete
P10   1

SEC. 9.  

(a) On or before January 1, 2019, the commission
2shall survey, monument, and record a plat and a metes and bounds
3description of the trust lands in the office of the county recorder
4in the County of Alameda. Upon recordation, the survey,
5monuments, plat, and metes and bounds description shall be
6binding upon the state, the trustee, and its successors in interest.

7(b) The cost of the survey and recordation shall be paid by the
8trustee.

9(c) 

end delete
10begin insert

begin insertSEC. 9.end insert  

end insert

The requirements of Section 6359 of the Public
11Resources Code do not apply to the trust lands granted pursuant
12to this act.

13

SEC. 10.  

The trust lands granted in Section 3 are three parcels
14of tide and submerged lands situated in and adjacent to the bed of
15San Francisco Bay, Alameda County, State of California, more
16particularly described as follows:

17PARCEL 1

18COMMENCING at point “A” as shown on the Map of the Grant
19to the City of Albany, recorded July 24, 1963, in Book 43 of Maps,
20page 12A, Alameda County Records, said point “A” having
21California Zone 2 coordinates of x = 1,469,703.82 feet and y =
22511,851.40 feet, thence along the northerly boundary of said Grant
23S 74° 21’ 53” E, 2573.92 feet to point “B” as shown on said map
24and being the TRUE POINT OF BEGINNING, thence continuing
25along the boundary of said grant the following tenbegin delete courses.end deletebegin insert courses:end insert

26(1) N 01° 08’ 07” E, 661.08 feet;

27(2) S 88° 51’ 53” E, 661.58 feet;

28(3) N 01° 08’ 07” E, 876.29 feet;

29(4) N 75° 19’ 34” E, 1636.95 feet;

30(5) S 88° 51’ 53” E, 409.57 feet;

31(6) S 01° 08’ 07” W, 1321.66 feet;

32(7) N 88° 51’ 53” W, 661.05 feet;

33(8) S 01° 08’ 07” W, 1322.17 feet;

34(9) N 88° 51’ 53” W, 1550.05 feet;

35(10) S 32° 12’ 53” E, 1582.80 feet;

36thence N 88° 51’ 53” W, 1305.22 feet; thence N 01° 08’ 07” E,
371983.26 feet to the True Point of Beginning.

38Coordinates, bearings, and distances used in the above
39description are based on the California Coordinate System, Zone
402.

P11   1PARCEL 2

2BEGINNING at Point “J” as shown on said Map of Grant to
3begin delete Theend deletebegin insert theend insert City of Albany, recorded July 24, 1963, said point “J”
4having California Zone 2 coordinates of x = 1,474,154.14 feet and
5y = 510,458.00 feet, thence along the boundary of said grant the
6following twobegin delete course:end deletebegin insert courses:end insert

7(1) N 88° 51’ 53” W, 1550.05 feet;

8(2) S 32° 12’ 53” E, 1582.80 feet;

9thence N 28°begin delete 20end deletebegin insert 20end insertbegin insertend insert 17” E, 1487.26 feet to the point of
10beginning. Coordinates, bearings, and distances used in the above
11description are based on the California Coordinate System, Zone
122.

13PARCEL 3

14All of that certain parcel of land described as Parcel 1 in deed
15to the City of Albany, recorded January 15, 1942, in Liber 4159,
16page 296, Alameda County Records.

17

SEC. 11.  

No reimbursement is required by this act pursuant to
18Section 6 of Article XIII B of the California Constitution because
19the only costs that may be incurred by a local agency or school
20district are the result of a program for which legislative authority
21was requested by that local agency or school district, within the
22meaning of Section 17556 of the Government Code and Section
236 of Article XIII B of the California Constitution.



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