BILL NUMBER: AB 2649 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 22, 2012
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 Chapter the
Burton Act (Chapter 1333 of the Statutes of 1968
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
certain seawall lots are 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 these lots , subject
to certain requirements and conditions. This
The 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 these 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, the Burton Act trust, or
the Burton Act transfer agreement, lots that
results result 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.
(f) "City" means the City and County of San Francisco, a charter
city and county, and includes the port.
(g) "Commission" means the State Lands Commission.
(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 9 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
nationally registered historic district, the proposed Pier 70
Historic District, or a district eligible for listing as a historic
district under federal law.
(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.
(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.
(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.
(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.
(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.
(q) "Public trust" or "trust" means the common law public trust
for commerce, navigation, and fisheries.
(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 9 and
is on file with the commission and the port.
(s) "Seawall lot 337" means that parcel of real property situated
in the city commonly known as seawall lot 337, as shown on that
certain map entitled "revised map of designated seawall lots," which
is reproduced in Section 9 of this act and is on file with the
commission and the port.
(s)
(t) "Tidelands" means the lands lying below the
elevation of ordinary high water, whether filled or unfilled, and
includes submerged lands.
(t)
(u) "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, 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, is 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 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 and portions of seawall lot 337 , 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
, and portions of seawall lot 337, 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 , seawall lot
337, 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 piers and other
historic 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
transfer transferable development rights to preserve historic 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 remain subject to the use
requirements of the public trust, the Burton Act trust, and the
Burton Act transfer agreement 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 If the
commission making makes 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.
(c) As a condition for commencing vertical construction on seawall
lot 322-1 for a nontrust use pursuant to subdivision (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 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, the Burton Act trust, 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 of rents in connection with a nontrust lease
of seawall lot 322-1 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) Notwithstanding subdivision (c) of Section 4 and Section 6 of
Chapter 660, the port may, conditioned on the approval of the
commission, provide a rent credit or other waiver or deferral of rent
in connection with a nontrust lease of seawall lot 337 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 of rent in connection with a nontrust lease of
seawall lot 337 as an offset against fees or other exactions or
obligations that would otherwise be levied or imposed by the city on
any other development project located on seawall lot 337, if approved
by the commission in accordance with this subdivision, relating to
the other project's impact on, or demand for, affordable housing,
including, but not limited to, fees imposed pursuant to the city's
jobs-housing linkage program.
(b)
(c) The port shall provide the commission with
documentation necessary to support the findings required by Section 3
of this act and subdivision (a) or (b) 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)
(d) 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)
(e) 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. If the port constructs structures other
than affordable housing on seawall lot 322-1, the port shall acquire,
subject to the approval of the commission and in consultation with
the California Coastal Conservancy, land of equal monetary value to
seawall lot 322-1 that is adjacent to the water and promotes the
public trust in exchange for permanently lifting the trust use
restrictions at seawall lot 322-1. If the port is unable to find
available and suitable land to acquire, the port shall make a deposit
of an amount that is equal to the value of seawall lot 322-1 to the
Kapiloff Land Bank Fund pursuant to the Kapiloff Land Bank
Act (Division 7 (commencing with Section 8600) of the Public
Resources Code).
SEC. 5. SEC. 6. Sections 3
and 4 to 5, inclusive, 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 the 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. SEC. 7. Section 3.3 is added
to Chapter 1333 of the Statutes of 1968, the
Burton Act (Ch apter 1333 of the Statutes of
1968), to read:
Sec. 3.3. 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 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 transfer development rights
associated with a historic pier or historic 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 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. SEC. 8. 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. SEC. 9. The following map is
a part of this act: GRAPHIC INSERT HERE: SEE PRINTED VERSION OF THE
BILL]
SEC. 9. SEC. 10. Notwithstanding any
other law, for purposes of Chapter 660 and the Burton Act, the terms
"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. 10. SEC. 11. 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. 11. SEC. 12. 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.
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