BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2649|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 2649
Author: Ammiano (D)
Amended: 8/22/12 in Senate
Vote: 21
SENATE NATURAL RESOURCES AND WATER COMM. : 9-0, 6/26/12
AYES: Pavley, La Malfa, Cannella, Evans, Fuller, Kehoe,
Padilla, Simitian, Wolk
SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/16/12
AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price,
Steinberg
ASSEMBLY FLOOR : 70-0, 5/25/12 (Consent) - See last page
for vote
SUBJECT : Tidelands and submerged lands: City and
County of San Francisco: seawall lots
SOURCE : Port of San Francisco
DIGEST : This bill declares that, upon the State Lands
Commission (Commission) making certain findings, seawall
lot 322-1 is free from public trust use requirements and
authorizes the Port of San Francisco to lease the lot for a
nontrust use.
ANALYSIS : 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
CONTINUED
AB 2649
Page
2
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 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 (Act) trust, and the Act
transfer agreement. With respect to those lands, the San
Francisco Port Commission (Port) is authorized to lease all
or a portion of the designated seawall lots if specified
conditions are met.
This bill:
1. Defines certain terms including "seawall lot 322-1,"
located in the city's Northeast Waterfront Historic
District (on the edge of the North Beach District), and
"Pier 70", located on the waterfront approximately
mid-way between China Basin (i.e. AT&T Park) and
Hunter's Point to the south.
2. Declares numerous legislative findings regarding the
Act, San Francisco's historic maritime resources and
their need of repair, the statewide interest in that
repair, the historic and public trust value of Pier 70,
the challenges to the development of Pier 70 including
its public trust purposes, the need for the Port to
reduce development costs and increase revenues in order
to revitalize the waterfront while encouraging
affordable housing development on port lands no longer
needed for trust purposes and still providing overall
public trust benefits of statewide value, San
Francisco's commitment to promote affordable housing and
its programs to do so, and the role of "transferable
development rights" in encouraging the preservation of
historic resources, among others.
3. Requires that seawall lot 322-1 remains subject to the
public trust, the Act trust and the Act transfer
agreement until the Commission finds that (a) it is no
CONTINUED
AB 2649
Page
3
longer necessary for public trust purposes and (b)
lifting the use requirements until January 1, 2094 is in
the best interest of the state. The Port may then enter
into a non-trust lease for all or any portion of seawall
lot 322-1 subject to specified conditions (e.g. fair
market value, allowable expenditures of funds for public
trust purposes). Development must be demonstrably
consistent with the historic neighborhood
4. Allows the Port to provide - conditioned on approval of
the Commission - a rent credit or other waiver or
deferral of rent in connection with a non-trust lease of
seawall lot 322-1 or any other designated seawall lot or
other port property not subject to the use restrictions
of the public trust, the Act trust or the Act transfer
agreement if the Commission finds that (a) the non-trust
lease is for affordable housing and - if other leasing
occurs - no rent credit is applied for the other uses,
and (b) the Port can apply the rent credit as an offset
of fees that would otherwise be levied by the city for
Pier 70 or other specified development projects.
5. Requires the Port to provide the Commission with
appropriate documentation, as specified, in order for
the Commission to make informed decisions.
6. Allows the Port to provide other credits, waivers or
deferrals under a non-trust lease in exchange for other
valuable considerations that meet the fair market value
requirement of SB 815 (Migden), Chapter 660, Statutes of
2007, and not limit the Port's authority over the
designated seawall lots under the Act, as specified.
7. Provides that on January 1, 2094, the sea wall lots and
buildings thereon shall be modified, restored and
remediated, as necessary, to facilitate public trust
uses when the sea wall lots are returned to the public
trust.
8. Amends the Act to permit the transfer by the Port
commission of the Port's transferable development
rights, as defined by the city's planning code, in
connection with the preservation of a historic pier or
structure under the Port's jurisdiction if there are no
CONTINUED
AB 2649
Page
4
foreseeable public trust needs for the development
rights, and subject to other specified restrictions.
The proceeds may only be used for the purposes of the
Act including the preservation of historic piers and
structures.
9. Finds that a special law is necessary given the unique
circumstances and provide for the severability of this
bill's provisions.
Background
The Commission was created in 1938 and is the steward and
manager of the state's public trust lands. Public trust
lands are filled and unfilled tide and submerged lands and
the beds of lakes, streams, and other navigable waterways
that are held in trust by the state for the benefit of the
people of California. The common law doctrine of the
public trust requires that the public's right to use
California's waterways for commerce, navigation, fishing,
boating, natural habitat protection and other
water-oriented activities must be protected. The
Commission has administrative control over the public trust
lands and oversight authority over public trust lands
granted by the Legislature to local public agencies. The
Commission also has the authority to lease trust lands,
enter into boundary line agreements, and, in limited
circumstances, exchange public trust lands for non-trust
lands. In general, tidelands within two miles of any
incorporated city, city and county, or town and fronting
the water of any harbor, estuary, bay or inlet used for
navigation cannot be granted or sold to a private entity
unless certain conditions are met. These include: the
Legislature finds that they are valueless for trust
purposes, the Legislature frees them from the public trust,
the lands have been reclaimed during the course of a highly
beneficial public program of harbor development, and the
lands constitute a minor fraction of the total public trust
acreage. Case law (Illinois Central RR Co v. Illinois
(1892) 146 US 387) also holds that sovereign public trust
lands cannot be lost from the public trust unless they "can
be disposed of without any substantial impairment of the
public interest in the lands and waters remaining."
CONTINUED
AB 2649
Page
5
The Burton Act (Chapter 1333, Statutes of 1968) granted in
trust to the Port administrative control over 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. The Act has
been amended several times since.
SB 815 (Migden) made several changes affecting public trust
lands in the City and County of San Francisco. Several
seawall lots (i.e. parcels of filled tidelands identified
as seawall lots 328, 330, 337 and 347S including a portion
of Mission Rock Street) were freed from the use
requirements of the public trust and act until January 1,
2094 as they had ceased to be useful to the promotion of
the public trust. The Port was authorized to lease all or
part of the designated seawall lots free from the use
requirements of the public trust, the Act trust and the Act
transfer agreement, provided specified conditions were met.
Revenues from these "non-trust leases" must be deposited
in a separate account in the harbor fund and used for the
preservation of historic piers and structures or for the
construction and maintenance of waterfront plazas and open
space, as specified. Before using any revenues for any
pier or structure subject to public trust restrictions, the
Commission's executive officer is required to approve the
proposed uses. There are other requirements including that
the non-trust lease must be for fair market value, subject
to the Commission's approval, and is in the best interest
of the state, among others. The Port is also authorized to
use part of the non-trust lease revenues, as specified, for
any purpose consistent with the public trust and the act.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee, major
loss of a public trust resource through 2094.
There is no fair market value appraisal of seawall lot
322-1.
SUPPORT : (Verified 8/22/12)
Port of San Francisco (source)
CONTINUED
AB 2649
Page
6
City and County of San Francisco
ARGUMENTS IN SUPPORT : According to the City and County
of San Francisco, this bill authorizes them "to build
affordable housing at several sites that are no longer
needed for trust property, subject to approval by the
�commission]. The port anticipates using seawall lot 322-1
for affordable housing partnering with the Mayor's Office
of Housing."
"In SB 815, the state legislature authorized leasing of
port seawall lots at fair market value for non-trust
purposes for periods of up to 75 years, with net proceeds
dedicated to trust uses and specifically, to historic
rehabilitation of the port's finger piers and construction
of parks."
"Under AB 2649, the port would receive fair market value
for its site through a credit toward local affordable
housing fees arising from the redevelopment of Pier 70.
The port's Pier 70 Master Plan �?] calls for retention of
the ship repair use at Pier 70, environmental remediation
of the site, 6,000 - 8,000 new jobs, approximately 20 acres
of parks and open space, development of more than 3 million
square feet of new commercial uses, and the listing of Pier
70's numerous historic buildings as a district to the
National Register of Historic Places."
ASSEMBLY FLOOR : 70-0, 5/25/12
AYES: Achadjian, Alejo, Allen, Ammiano, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng,
Feuer, Fong, Furutani, Beth Gaines, Galgiani, Garrick,
Gatto, Gordon, Gorell, Hagman, Halderman, Harkey,
Hayashi, Roger Hern�ndez, Hill, Huber, Hueso, Huffman,
Jeffries, Jones, Lara, Logue, Bonnie Lowenthal, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nestande,
Nielsen, Norby, Olsen, Pan, V. Manuel P�rez, Portantino,
Skinner, Smyth, Solorio, Swanson, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Atkins, Bill Berryhill, Fletcher,
Fuentes, Grove, Hall, Knight, Ma, Perea, Silva
CONTINUED
AB 2649
Page
7
CTW:k 8/22/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED