BILL ANALYSIS �
Bill No: SB
152
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2011-2012 Regular Session
Bill Analysis
SB 152 Author: Pavley
Amended: April 25, 2011
Hearing Date: April 26, 2011
Consultant: Paul Donahue
SUBJECT : Public Lands: Private Recreational Piers
SUMMARY : Repeals a law that prohibits the State Lands
Commission from charging rent for specified private
recreational piers constructed for the use of an owner of
land adjacent to the shoreline of a lake, river or stream.
Existing law :
1) Grants the State Lands Commission (SLC) the authority to
fix the rental or other consideration for non-extractive
leases and permits on state lands under its jurisdiction.
2) Prohibits the SLC from charging rent for private
recreational piers constructed on state lands for the use
of an owner of property located adjacent to a state
waterway.
3) Requires a littoral residential landowner to pay the
expenses incurred by the SLC in issuing a permit for a
recreational pier located on private residential property.
4) Defines "littoral landowner" as (A) a person who owns
littoral land �directly adjacent to state waterways] used
solely for a single-family dwelling, or (B) any association
of persons or a nonprofit corporation that owns parcels of
land, each of which is zoned or used solely for
single-family dwellings.
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5) Defines a "recreational pier" as any fixed facility for
the docking or mooring of boats that is constructed for the
use of the littoral landowner.
6) Contains legislative findings and declarations that
substantial public benefit is derived from the construction
and maintenance of private recreational piers on the
waterways of the state, including safe harbor for disabled
vessels, safe anchorage during sever weather conditions,
elimination or retardation of erosion along the shorelines
of rivers.
7) Declares that, in providing for rent-free private
recreational piers, it is the intent of the Legislature to
encourage members of the public to construct the piers, at
no cost to the state, upon the navigable lakes, rivers and
streams of the state.<1>
This bill :
1) Repeals the law prohibiting SLC from charging rent to
homeowners for residential piers, and the associated
legislative findings and declarations supporting the
policy.
2) Adopts new legislative findings and declarations that:
a) As provided by existing law,<2> the SLC may lease
state lands to private individuals and properties for
various purposes, including for the construction of a
private recreational pier when the SLC determines the
use is consistent with public trust needs and is in
the best interests of the state.
b) The use of state lands for a private recreational
pier is not a property right for littoral or riparian
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<1> In addition, the intent language provides that the
statements are declaratory of existing law. (Section 2 of
Chap. 4331, Stats. 1977)
<2> Pub. Res. Code � 6501.1 authorizes the SLC to lease
state lands "for such purpose or purposes as the commission
deems advisable." Pub. Res. Code � 6005 states that any
permissive authority or discretion vested in a public
officer or body is "subject to the condition that it be
exercised in the best interests of the state."
SB 152 (Pavley)
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landowners, but a privilege granted by the SLC on
behalf of the state.
c) It is the intent of the Legislature to allow the
SLC to charge fair annual rent for the use of state
lands for private recreational piers, consistent with
existing regulations.<3>
3) Requires the SLC to charge rent for a private
recreational pier constructed on state lands, consistent
with the process in existing law and regulations.<4>
4) Specifies that rent shall be based on local conditions
and local fair annual rental values.
5) Provides that the imposition of rent shall not apply to
any lease in effect on January 1, 2012, for the term of
that lease, but that when the residential pier lease
expires or is otherwise terminated, the SLC is required to
add fair annual rent provisions to the new lease contract.
COMMENTS :
1) Purpose of the bill : The author has introduced this
measure to require owners of private recreational piers
that extend out onto state lands to pay a fair rent for
that privilege. The author notes that all commercial uses
of state lands, such as marinas, commercial piers or
floating restaurants presently pay rent for the use of
state lands. The author states that the rent-free
provisions of existing law that this bill seeks to repeal
create an arbitrary and unfair policy favoring residential
recreational piers.
The author states that this law should be repealed because
it is an unconstitutional gift of public land that
additionally contributes significant value to the
residential landowner's property, with no monetary benefit
to the state, and is a benefit bestowed on a special
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<3> See, e.g., 2 C.C.R. � 2003. Rental.
<4> Pub. Resources Code � 6503 provides that, "upon receipt
of an application to lease lands under this chapter, the
commission shall appraise the lands and fix the annual rent
or other consideration therefor."
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category of private recreational pier owners.
2) State Lands Commission's viewpoint : The SLC writes that
rent equity has long been an issue of concern to the
Commission, which takes seriously its responsibility to
protect the public's interest by assessing appropriate
rents for all private and commercial use of state lands to
ensure a fair and equitable return to the General Fund on
private use of state trust property. The SLC objects to the
prohibition in existing law on charging rent for leases
issued for private recreational piers that benefit only an
arbitrary special class - the owners of single-family
dwellings.
The SLC notes that in 1976 the Attorney General opined that
issuance of rent-free lease for a private recreational pier
was an unconstitutional gift of public funds. "While the
Legislature responded to this opinion by adopting findings
to establish a public benefit, the Commission does not
believe that these findings have materialized to an extent
to justify the exclusive use of state property by private
parties for no consideration. The Committee should note
that these piers not only offer a recreational benefit to
the landowner, but the presence of these piers
significantly add to the upland property's real estate
value, without providing any commensurate benefit to the
state."
3) Tide and submerged lands : The state owns tide and
submerged lands for purposes of commerce, navigation,
recreation, fisheries, and the protection of natural
resources. These lands are held in public trust for the
benefit of the people of the state. Littoral land is land
located directly adjacent to state waterways, such as
streams, rivers and lakes.
4) Rights and privileges of owners of land adjacent to
waterways : The rights of littoral landowners are
subordinate to the rights of the SLC, which exercises trust
powers over navigable waters.<5> Although the littoral
landowner has a right of access to the shore from every
part of his or her frontage across the shore,<6> locating a
residential (or commercial) pier on state submerged lands
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<5> Marks v. Whitney (1971) 6 Cal.3d 1951.
<6> Kendall v. Walker (2010) 181 Cal.App.4th 584
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is a privilege, rather than a right.
5) Changes to the status quo : Since 1955, state law has
allowed owners of single family residences to keep and
maintain a residential pier or buoy on state submerged
lands without paying rent. This bill continues to
authorize the SLC to lease state lands to private
individuals for construction of private recreational piers,
but will require the SLC to collect rent from the
property owner for this privilege. According to the SLC,
most of the recreational pier permits have been granted in
3 general areas - Lake Tahoe/Donner, the Sacramento River
Delta, and Huntington Harbor in Orange County.
In 1977 the Legislature adopted findings articulating the
public benefit derived from construction and maintenance of
private recreational piers, and declared legislative intent
to provide for rent-free private recreational piers to
encourage their construction. This bill repeals these
findings, and instead authorizes the SLC to lease state
lands for purposes of constructing the piers, but requires
the SLC to collect rents for granting this privilege.
6) Proposed rental plan : The SLC states there are about
1250 recreational piers, buoys, and other mooring
structures that may be affected by passage of the bill.
The SLC estimated that it plans to charge about $1700
annually for each pier, buoy or mooring structure located
on or adjacent to residential lands; however, this bill now
specifies that the SLC shall base the rent on "local
conditions and local fair market values," and states
further that rent cannot be imposed on any lease in effect
on January 1, 2012, but only when a residential pier lease
expires. <7>
7) Clarification of legislative findings and declarations :
At the outset, the legislative findings and declarations in
this bill incorporate by reference existing laws that
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<7> Recreational pier permits are 10 years in duration.
Starting in 2008, the SLC began inserting a clause into new
and renewed leases that reserves SLC's right to charge rent
during the lease period if the Legislature passed a bill
repealing the rent-free recreational permit law. Recent
amendments to this bill would make this lease provision
unenforceable.
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authorize the SLC to lease state lands "for such purpose or
purposes as the commission deems advisable,"<8> but the
discretion given to the SLC is "subject to the condition
that it be exercised in the best interests of the
state."<9>
In addition to the above, the findings and declarations add
a provision further stating that state that the SLC has
authority to lease state lands "when the use is consistent
with public trust needs?" This goes beyond the standards
articulated in existing law, and could be construed to mean
that the SLC must determine if the use of state lands for
new or existing residential piers must also be consistent
with "public trust needs" in addition to being in the "best
interests of the state." It is unclear that these terms
are synonymous.
It is quite conceivable that the SLC might interpret this
statement to mean that all 1250 existing residential piers
must be examined to determine if their continued existence
is consistent with public trust needs. This is
particularly true when viewed in light of the legislative
declaration that follows, declaring that the "use of
state-owned lands for a private recreational pier is not a
property right for littoral or riparian landowners, but a
privilege granted by the State Lands Commission on behalf
of the state."
The author and the committee may wish to clarify
legislative intent in this regard. A possible option
follows:
"As provided by existing law, including Sections
6005 and 6501.1 of the Public Resources Code, the
commission may lease state lands to private
individuals and others for various purposes,
including the construction of a private
recreational pier when the State Lands Commission
determines the use is consistent with public
trust needs and is in the best interests of the
state ."
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<8> Pub. Res. Code � 6501.1
<9> Pub. Res. Code � 6005
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8) Related legislation :
AB 1490 (Speier, 1991) . Would have required owners of
recreational piers to pay a fair market rental fee and the
SLC's expenses in issuing a lease. It also prohibited
transfers of leases of state tide and submerged lands for
private recreational piers. (Hearing in Senate Governmental
Organization Committee cancelled by the author)
SB 1017 (Sieroty, 1981 ). Would have required owners of
state lands on which private piers had been constructed to
pay rent to the State Lands Commission. (Failed passage in
Senate Governmental Organization Committee)
SB 349 (Nejedly, 1977) . Adopted legislative findings and
declarations that establish the public benefits derived
from private recreational piers. (Chap. 431, Stats. 1977)
SUPPORT: State Lands Commission (source)
OPPOSE: None on file
FISCAL COMMITTEE: Yes
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