BILL NUMBER: AB 2649 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 2, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 24, 2012
An act to add Section 3.3 to the Statutes of
Chapter 1333 of the Statutes of 1968, relating to local government.
LEGISLATIVE COUNSEL'S DIGEST
AB 2649, as amended, Ammiano. Tidelands and submerged lands: City
and County of San Francisco: seawall lots.
Existing law grants to the City and County of San Francisco the
right, title, and interest of the State of California in and to
certain tidelands and submerged lands in trust for certain purposes.
Under existing law, the Burton Act and the Burton Act transfer
agreement, the interest of the state in and to the Harbor of San
Francisco was transferred in trust to the City and County of San
Francisco. The State Lands Commission has jurisdiction over tidelands
and submerged lands of the state.
Existing law declares, until January 1, 2094, that certain parcels
of real property denominated as the designated seawall lots are free
from the use requirements of the public trust, the Burton Act trust,
and the Burton Act transfer agreement. With respect to those lands,
the San Francisco Port Commission is authorized to lease all or a
portion of the designated seawall lots if specified conditions are
met.
This bill would, similarly, declare that , upon the State
Lands Commission making specified findings, seawall lot 322-1
is free from the use requirements of the public trust, the Burton Act
trust, and the Burton Act transfer agreement, and would authorize
the port to lease seawall lot 322-1, subject to certain requirements
and conditions. This bill would authorize the port to provide a rent
credit or other waiver or deferral of rent in connection with either
a nontrust lease of seawall lot 322-1, or, with the approval of the
State Lands Commission, a lease of any other designated seawall lot
or other port property that is not subject to the use
restrictions of the public trust or ,
the Burton Act trust use restrictions
, or the Burton Act transfer agreement , that
results in an effective rent to the port for below fair market value,
if the State Lands Commission finds that certain conditions are met.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. For the purposes of this act the following terms have
the following meanings:
(a) "Affordable housing" means housing for very low, low-, or
moderate-income households as defined in paragraph (3) of subdivision
(h) of Section 65589.5 of the Government Code.
(b) "Burton Act" means Chapter 1333 of the Statutes of 1968, as
amended.
(c) "Burton Act transfer agreement" means that certain agreement
dated January 24, 1969, between the state and the city, relating to
the transfer of the Port of San Francisco from the state to the city,
and any amendments to that agreement in accordance with its terms.
(d) "Burton Act trust" means the statutory trust imposed by the
Burton Act, by which the state conveyed to the city, in trust and
subject to certain terms, conditions, and reservations, the state's
interest in certain tidelands, including filled lands, and lands
dedicated or acquired by the city as assets of the trust.
(e) "Chapter 660" means Chapter 660 of Statutes of 2007, as
amended.
(e)
(f) "City" means the City and County of San Francisco,
a charter city and county, and includes the port.
(f)
(g) "Commission" means the State Lands Commission.
(g)
(h) "Designated seawall lot" or "designated seawall
lots" means any or all of the parcels of real property situated in
the city and commonly known as seawall lots 328, 330, 337, 347S, and
322-1, including a portion of Mission Rock Street, as shown on that
certain map entitled "revised map of designated seawall lots," which
is reproduced in Section 8 of this act and is on file with the
commission and the port.
(i) "Historic pier" means any pier, marginal wharf, pier shed,
bulkhead building, and any other building or structure in the San
Francisco waterfront between and including Pier 48 and Pier 45 that
has been included in the Port of San Francisco Embarcadero Historic
District and that is either individually listed or eligible for
listing on the National Register of Historic Places or has been
designated as, or meets the standards for, resources contributing to
the historic significance of the Port of San Francisco Embarcadero
Historic District under federal law.
(j) "Historic structure" means any building, structure, or other
facility, including a historic pier, that is located on port property
and either is individually listed or eligible for listing on the
National Register of Historic Places, or has been designated as, or
meets the standards for, a resource contributing to the historic
significance of a national register listed historic district, the
proposed Pier 70 Historic District, or a district eligible for
listing as a historic district under federal law.
(h)
(k) "Lease" means a ground lease or space lease of real
property, license agreement for use of real property, temporary
easement, right-of-way agreement, development agreement, or any other
agreement granting to any person any right to use, occupy, or
improve real property under the jurisdiction of the port.
(i)
(l) "Nontrust lease" means a lease of all or any
portion of the designated seawall lots free from the use requirements
established by the public trust, the Burton Act trust, and the
Burton Act transfer agreement.
(j)
(m) "Person" means an individual, corporation, limited
liability company, partnership, joint venture, business entity,
business trust, association or other private organization or private
entity, or any governmental entity or agency.
(k)
(n) "Pier 70 area" means the Pier 70 area as defined in
subdivision (s) of Section 1 of Chapter 477 of the Statutes of 2011.
(l)
(o) "Port of San Francisco" or "port" means the city
acting by and through the San Francisco Port Commission.
(p) "Preservation" means the rehabilitation, restoration, or
preservation of historic piers or other historic structures in
accordance with the Secretary of Interior's Standards for the
Treatment of Historic Properties. Preservation includes seismic
retrofitting, substructure repair, and other structural and
life-safety improvements, provided that the improvement is necessary
for, and in furtherance of, the preservation of historic piers or
other historic structures.
(m)
(q) "Public trust" or "trust" means the common law
public trust for commerce, navigation, and fisheries.
(n)
(r) "Seawall lot 322-1" means that parcel of real
property situated in the city commonly known as seawall lot 322-1, as
shown on that certain map entitled "revised map of designated
seawall lots," which is reproduced in Section 8 and is on file with
the commission and the port.
(o) "Chapter 660" means Chapter 660 of the Statutes of 2007, as
amended.
(p)
(s) "Tidelands" means the lands lying below the
elevation of ordinary high water, whether filled or unfilled, and
includes submerged lands.
(t) "Transferable development rights" means transferable
development rights as that term is defined in the city's planning
code, as may be amended from time to time.
SEC. 2. The Legislature finds and declares all of the following:
(a) The San Francisco waterfront is a valuable public trust asset
of the state that provides special maritime, navigational,
recreational, cultural, and historical benefits to the people of the
region and the state.
(b) The lands comprising the San Francisco waterfront consist
primarily of sovereign tidelands granted to the city by the state
pursuant to the Burton Act. Under the city's charter, the granted
lands are held and managed by the port. The Burton Act authorizes the
port to use, conduct, operate, maintain, manage, regulate, improve,
and control the San Francisco waterfront consistent with the public
trust and the Burton Act trust.
(c) A unique attribute of the port is the numerous historic
maritime resources present on port property, many of which are in
need of major structural repairs and are not currently available for
the use and enjoyment of the public. The Legislature has
previously found that rectifying the deteriorating conditions along
the San Francisco waterfront, the preservation of the numerous
historic piers and other historic structures on port land, and the
construction of waterfront plazas and open space, are matters of
statewide importance that will further the purposes of the public
trust and the Burton Act trust. The Legislature has also found that
revitalization of the Pier 70 area and the restoration of its unique
collection of historic maritime industrial buildings is of particular
importance. As the port strives to make productive use of the Pier
70 area and other lands under its jurisdiction, it faces numerous
obstacles related to the high costs of waterfront development,
including costs associated with seismic safety improvements, historic
rehabilitation, hazardous materials remediation, and providing
public access to the waterfront. The success of the port's efforts to
revitalize the waterfront depends in part on strategies for
increasing revenues from port lands and for reducing the costs of
beneficial development projects.
(d) The seawall lots are tidelands that were filled and cut off
from the waterfront by the construction of the great seawall (now
occupied by the Embarcadero roadway) in the late 19th and early 20th
centuries. Over time, certain of the seawall lots or portions
thereof, including the designated seawall lots, have ceased to be
useful for the promotion of the public trust and the Burton Act
trust, except for the production of revenue to support the purposes
of the Burton Act trust. The designated seawall lots are presently
either vacant or leased on an interim basis, primarily for commuter
parking.
(e) The Legislature, in Chapter 660 of the Statutes of
2007 , found that most of the designated seawall lots are
no longer necessary for the purposes of the public trust or Burton
Act trust. The Legislature also found that future revenues from the
development and leasing of the designated seawall lots are an
essential source of funds to preserve the port's numerous historic
piers and historic structures, construct and maintain
waterfront plazas and open space, and improve public access to the
waterfront. Chapter 660 lifted the use restrictions of the public
trust and Burton Act trust from those designated seawall lots and
authorized the port to enter into nontrust leases of the lands,
subject to certain conditions, and subject to the requirement that
the lease revenues be used for specified trust purposes.
(f) Seawall lot 322-1 is presently used for surface parking
primarily serving commuters. The lot was not included in Chapter 660,
but like the other designated seawall lots, seawall lot 322-1 was
filled and reclaimed as part of a highly beneficial plan of harbor
development, has ceased to be tidelands, is cut off from the water,
constitutes a relatively small portion of the tidelands granted to
the city, and is no longer necessary
not currently being used, and is not anticipated in
the foreseeable future to be used, for public trust
or Burton Act trust purposes. It is the intent of the Legislature
that , conditioned on the approval by the commission,
seawall lot 322-1 be freed of the use requirements of the public
trust, the Burton Act trust, and the Burton Act transfer agreement in
the same manner and subject to the same requirements as the
designated seawall lots under Chapter 660, subject to the additional
provisions of this act.
(g) The lack of affordable housing is a critical problem that
threatens the economic, environmental, and social quality of life in
California, and is a matter of statewide concern. The Legislature has
previously found that attainment of the state's housing goals
requires the cooperative participation of government and the private
sector in an effort to expand housing opportunities and accommodate
the housing needs of Californians of all economic levels. The
Legislature has also found that the provision of housing affordable
to low- and moderate-income households requires the cooperation of
all levels of government, and that local and state governments have a
responsibility to use the powers vested in them to facilitate the
improvement and development of housing to make adequate
provision provisions for the housing needs of
all economic segments of the community. The Legislature has also
recognized that local jurisdictions should encourage, to the maximum
extent practicable, infilling existing urban areas.
(h) Some of the port's designated seawall lots, including seawall
lot 322-1, are well-suited to support infill affordable housing
development. Development of affordable housing typically requires a
ground lease at rents that are below market. However, Chapter 660
requires the port to receive fair market value for nontrust leases of
designated seawall lots.
(i) The city has implemented a number of local programs designed
to encourage the development of affordable housing, including
programs that impose fees, exactions or other obligations on new
development. For example, the city's jobs-housing linkage program
imposes fees on most types of commercial development to offset the
demand for affordable housing generated by new employment.
(j) Private commercial development on port property is subject to
the city's jobs-housing linkage program fees. These fees increase the
already high costs associated with development and revitalization of
port property. The project development costs for port property would
be reduced if the jobs-housing linkage fees that would otherwise be
imposed on development projects on port property could be reduced or
waived in exchange for an equivalent amount of rent credits or
similar incentives provided by the port to encourage affordable
housing development on other port property.
(k) A purpose of this act is to reduce the costs associated with
development that will revitalize the waterfront , facilitate the
preservation of historic piers and structures, and benefit the
public trust, while also encouraging affordable housing development
on port lands no longer needed for trust purposes, by authorizing the
port , subject to commission approval, to grant rent
credits or similar incentives for affordable housing development on
seawall lot 322-1 or other port property where housing is permitted,
provided the port can apply those credits to reduce the affordable
housing fees or other obligations imposed on development within the
Pier 70 area or on other port lands and subject to the conditions set
forth in this act.
(l) Seawall lot 322-1 is located in the city's Northeast
Waterfront Historic District. This act includes conditions to ensure
that any development of seawall lot 322-1 for nontrust use is
compatible with the historic and architectural maritime character of
the district.
(m) The preservation of the port's historic finger
piers and other historic resources
structures is critical for the preservation of the city's rich
maritime history, furthers trust purposes , and is
of statewide benefit. The city has adopted programs to encourage the
preservation of historic resources, including a transferable
development rights program. This act amends the Burton Act to clarify
that the port may sell transfer
transferable development rights to preserve historic
resources piers and structures on port property,
to the extent authorized under local law and subject to certain
limitations.
SEC. 3. (a) Seawall lot 322-1 shall be free from
remain subject to the use requirements of the
public trust, the Burton Act trust, and the Burton Act transfer
agreement for until the commission finds both
of the following:
(1) Seawall lot 322-1 is no longer
necessary for public trust or Burton Act trust purposes.
(2) Lifting the use requirement of the
public trust, the Burton Act trust, and the Burton Act
transfer agreement until January 1, 2094, is in the best interest of
the state.
(b) Upon the commission making the
findings identified in subdivision (a), seawall lot 322-1 shall be
free from the use requirements of the public trust, the Burton Act
trust, and the Burton Act transfer agreement for the period
between the effective date of this act and January 1, 2094, and shall
be treated as a designated seawall lot for purposes of the authority
granted to the port under Chapter 660. The port may enter into a
nontrust lease for all or any portion of seawall lot 322-1, subject
to the requirements of Section 4 of Chapter 660 and this act. Section
6 of Chapter 660 shall not apply to seawall lot 322-1.
(b)
( c) As a condition for commencing vertical
construction on seawall lot 322-1 for a nontrust use pursuant to
subdivision (a) (b) , the port shall
obtain a certificate of appropriateness or a comparable determination
of compatibility of the development with the historic character of
the surrounding area, as may be provided under the city's planning
code. For purposes of effectuating this section, the port is
authorized to submit to the procedures set forth in the city's
planning code for obtaining a certificate of appropriateness or
comparable determination.
SEC. 4. (a) Notwithstanding subdivision (c) of Section 4 of
Chapter 660 of the Statutes of 2007 , the port may ,
conditioned on the approval of the commission, provide a rent
credit or other waiver or deferral of rent in connection with either
a nontrust lease of seawall lot 322-1, or , with the
approval of the commission, a nontrust lease of
any other designated seawall lot or other port property that is not
subject to the use restrictions of the public trust
or , the Burton Act trust use
restrictions , or the Burton Act transfer agreement
, that results in an effective rent to the port below fair
market value, if the commission finds that both of the following
conditions are met:
(1) The nontrust lease is for affordable housing. The lease may
allow other uses, including, but not limited to, commercial uses and
market rate housing, provided that no portion of the rent credit,
waiver, or deferral is applied to the rent for those other uses.
(2) The port is entitled to apply the value of the rent credit,
waiver, or deferral as an offset against fees or other exactions or
obligations that would otherwise be levied or imposed by the city on
development projects located on Pier 70, or on other lands under the
port's jurisdiction, if approved by the commission in accordance
with this paragraph , relating to the projects' impacts on or
demand for affordable housing, including, but not limited to, fees
imposed pursuant to the city's jobs-housing linkage program. If
the development project benefiting from the offset is not located on
Pier 70, the commission shall not make an approval under this
paragraph unless the project is located on the designated seawall lot
on which the affordable housing is located, or the commission finds
that the development project includes investment in the preservation
of a historic pier or historic structure in an amount equal to or
greater than the amount of the offset.
(b) The port shall provide the commission with documentation
necessary to support the findings required by Section 3 of this
act and subdivision (a) of this section at or prior to
the time the port submits the proposed nontrust lease and other
documentation required under subdivision (c) of Section 4 of Chapter
660.
(c) Nothing in this section shall be construed as limiting the
port's authority to provide rent credits, waivers, or deferrals under
a nontrust lease in exchange for other valuable consideration
provided by the lessee that meets the fair market value requirement
of Chapter 660.
(d) Nothing in this section shall be construed as limiting the
port's authority under the Burton Act to use or lease the designated
seawall lots for uses permitted by the Burton Act, subject to any
applicable limitations of state law.
SEC. 5. Sections 3 and 4 of this act shall be inoperative on
January 1, 2094, after which date the use of the designated seawall
lots shall be consistent with the public trust, the Burton Act trust,
and the Burton Act transfer agreement. No later than January 1,
2094, all structures, buildings, and appurtenances on the designated
seawall lots not consistent with the purposes of the public trust,
the Burton Act trust, and Burton Act transfer agreement shall be
removed or modified, including any necessary restoration or
remediation of the seawall lots, to facilitate public trust uses.
SEC. 6. Section 3.3 is added to Chapter 1333 of the Statutes of
1968, to read:
SEC. 3.3. The For purposes of subdivision
(e) of Section 3, the preservation or restoration of marine
resources consistent with the primary mission of the San Francisco
Harbor may include the sale or transfer by the
City and County of San Francisco, acting by and through its Port
Commission (port), of the port's transferable development rights, as
defined in the city's planning code, as may be amended from time
to time, in connection with the preservation of a historic
pier or historic structure under port jurisdiction. To the extent
authorized by the planning code and upon a determination by the
port commission that there are no foreseeable public trust needs for
the development rights , the port may sell or
transfer development rights associated with a historic pier
or historic resource structure on port
property, provided that if the affected port property is subject to
the public trust and the Burton Act trust , the
restriction on the port's development rights following transfer shall
be for a period not exceeding 66 years. The port shall use the
proceeds from a transfer of development rights solely for the
furtherance of the purposes specified by this act, which include
, without limitation, reimbursement of the costs of
rehabilitation of a historic pier or historic resource undertaken by
any individual, corporation, limited liability company, partnership,
joint venture, business entity, business trust, association, or other
private organization or private entity the
preservation of a historic pier or historic structure . For
purposes of effectuating this section, the port is authorized to
submit to the procedures for transfer of development rights set forth
in the city's planning code.
SEC. 7. The Legislature finds and declares that unique
circumstances exist at the San Francisco waterfront as described in
Section 2 of this act, and that therefore this act sets no precedent
for any other location or project in the state.
SEC. 8. The following map is a part of this act:
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED
GRAPHIC INSERT HERE: SEE PRINTED VERSION OF THE BILL]
SEC. 9. Notwithstanding any other law, for
purposes of Chapter 660 and the Burton Act, the term
s "historic pier," "historic structure," and "preservation"
shall have the same meaning as those terms are defined in Section 1
of the act adding this section.
SEC. 9. SEC. 10. The Legislature
finds and declares that, because of the unique circumstances
applicable only to the lands described in this act, a statute of
general applicability cannot be enacted within the meaning of
subdivision (b) of Section 16 of Article IV of the California
Constitution. Therefore, this special statute is necessary.
SEC. 10. SEC. 11. If any provision
of this act, or its application to any person, property, or
circumstance, is held invalid by any court, the invalidity or
inapplicability of such provision shall not affect any other
provision of this act or the application of that provision to any
other person, property, or circumstance, and the remaining portions
of this act shall continue in full force and effect, unless
enforcement of this act as so modified by and in response to that
invalidation would be grossly inequitable under all of the
circumstances, or would frustrate the fundamental purposes of this
act.