Memorandum. California public trust law governs the administration of tidelands and submerged lands in several ways:

Transcription

1 Memorandum To: Piers Citizen s Advisory Committee ( CAC ) Land Use Subcommittee From: Brad Benson and Diane Oshima Date: January 10, 2013 Re: Public Trust Doctrine and BCDC The purpose of this memo is to provide a briefing on the Public Trust Doctrine and the San Francisco Bay Conservation and Development Commission (BCDC) and information about principles and policies that would apply to those agency reviews for the Golden State Warriors project at Piers Public Trust Doctrine With respect to the Public Trust Doctrine, this memo provides the following: (1) references and links to documents for CAC reference with further detail and information on the public trust and Burton Act; (2) the processes by public trust consistency issues in connection with the proposed Piers development may be considered and addressed by the State, and (3) discussion of the manner in which the Port may lease Seawall Lot 330 for non-trust uses or sell the property free of the trust. Title to most of the Port of San Francisco s property was transferred by the State to the City via the 1968 Burton Act and the accompanying Burton Act Transfer Agreement. The City, acting through its Port, holds such property in trust for the people of California. Port lands are subject to the terms and conditions of the Burton Act ( Burton Act trust ), the common law public trust for commerce, navigation and fisheries ( public trust ), and state constitutional limitations placed on trust lands. The California State Lands Commission ( SLC ) administers public trust lands not granted to local agencies and oversees the activities of local grantees such as the Port. California public trust law governs the administration of tidelands and submerged lands in several ways: The California Constitution, Article X, Section 3 prohibits the sale to private interests of all tidelands fronting on a waterway used for navigation and within 2 miles of an incorporated city. The Legislature may authorize a local grantee to sell lands reserved solely for street purposes if they are no longer needed for navigation. The Legislature may also terminate the public trust in tidelands and lift the prohibition of Article X, Section 3 if it finds that the subject property is has been filled as part of a highly beneficial program of harbor development, is no longer needed for trust purposes, and constitutes a relatively small portion of the lands granted to the local agency. Legislative trust grants to local grantees (such as the Burton Act) often restrict the uses to which granted lands may be put and/or how such lands should be administered. Common law, as reflected in California court decisions, places certain limits on the permissible uses of trust property. Legal opinion letters drafted by the California Attorney General and advice PORT OF SAN FRANCISCO TEL TTY Pier 1, The Embarcadero FAX San Francisco, CA 94111

2 Page 2 of 5 letters from and resolutions adopted by the SLC and its staff provide guidance in the interpretation of the common law trust restrictions. The California legislature, in the exercise of its trust authority, may prohibit or allow certain uses on trust lands. According to the SLC: Uses of trust lands, whether granted to a local agency or administered by the State directly, are generally limited to those that are water dependent or related, and include commerce, fisheries and navigation, environmental preservation and recreation. Public trust uses include, among others, ports, marinas, docks and wharves, buoys, hunting, commercial and sport fishing, bathing, swimming and boating. Public trust lands may also be kept in their natural state for habitat, wildlife refuges, scientific study, or open space. Ancillary or incidental uses, that is, uses that directly promote trust uses, are directly supportive and necessary for trust uses, or that accommodate the public s enjoyment of trust lands, are also permitted. Since trust lands are held in trust for the people of California, trust law recognizes restaurants, hotels, and visitor-serving retail as appropriate ancillary uses that further public enjoyment of waterfront areas. Generally, local-serving uses (such as a grocery store) that do not require a waterfront location and private uses such as housing are prohibited on public trust property. Public Trust Resources Port staff published an informational presentation to the Port Commission on August 8, 2006, a copy of which can be found at: ndscommission.pdf A fuller discussion of the Public Trust Doctrine, known as SLC Policy 88 (adopted by SLC on 8/29/01) is available at: State Consideration of Public Trust Consistency Issues The issue of trust consistency often arises when a proposed use of trust lands does not fit into the traditional categories of permitted or prohibited trust uses, such as the proposed Piers Multi- Purpose Venue. There are various ways in which this issue may be considered and addressed by the State: 1. The Port may consult with SLC staff and the Attorney General s Office regarding the design and uses proposed as part of the project. The SLC Executive Director may issue a letter advising that the project is (or is not) consistent with the public trust. This has been done for a number of Port projects, including the Ferry Building, Pier 1, Piers 1 ½- 5, and the Exploratorium. A November 18, 2008 staff report to the Port Commission includes an Exhibit C summarizing several trust consistency determination letters issued for Port projects (Ferry Building, Pier 1, Piers ) %20Leasing%20Policy%20in%20Historic%20Structures.pdf

3 Page 3 of 5 2. The California State Lands Commission itself may hold hearings and adopt a resolution finding a project to be consistent with the public trust. This occurred in connection with the Giants baseball stadium, and with the proposed Piers Mills Mixed Use Recreation Project (a project which was not approved locally). 3. The California Legislature may enact legislation finding that a project meeting certain criteria would further the purposes of the public trust, which occurred with AB 1389 which authorized the Port to proceed with a mixed use cruise terminal, office and retail project at Piers (a project which was approved locally, but was not constructed due to higher than expected substructure costs). Both the California Attorney General and SLC may issue letters advising that projects proposed for trust property are not consistent with the public trust. Lease or Sale of Seawall Lot 330 Free of Trust Use Restrictions In AB 1389 (2001), the Legislature found that a portion of Seawall Lot 330 that had been reserved for street purposes was no longer needed for trust purposes and authorized the sale of the street free of the trust, in conjunction with a simultaneous exchange or other disposition of Seawall Lot 330 free of the trust as may be authorized by SLC or the Legislature. In 2004, SLC approved an exchange of a portion of Seawall Lot 330 (now the site of the Watermark) for other lands added to the trust, but the exchange did not include the reserved street. In Senate Bill 815 (2007), the Legislature found that certain lands within Port jurisdiction, including Seawall Lot 330, have been cut off from San Francisco Bay by the Embarcadero roadway, 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, are leased on an interim basis for commuter parking or are vacant land, and constitute in the aggregate approximately 4 percent of the lands granted to the city under the Burton Act, not including lands currently subject to tidal action. Based on those findings, the Legislature concluded that Seawall Lot 330 was filled and reclaimed as part of a highly beneficial plan of harbor development (construction of the City s seawall), has ceased to be tidelands, constitutes a relatively small portion of the tidelands granted to the city, and is not necessary for public trust or Burton Act trust purposes. Accordingly, the Legislature freed Seawall Lot 330 from the use requirements of the public trust and the Burton Act trust through the year The Legislature further authorized the Port to enter into non-trust leases for Seawall Lot 330 for periods up to 75 years. In AB 418 (2011), the Legislature authorized the Port to sell Seawall Lot 330 free of the public trust, subject to the following conditions: BCDC The 34 th America s Cup happens in San Francisco Bay by December 31, 2013; The property is sold for fair market value and SLC reviews and approves the evidence of fair market value; The Port must identify two acres of property along San Francisco Bay to transfer into the trust, approved by SLC; and The proceeds from the fair market sale of Seawall Lot 330 must be used for trust purposes. BCDC is a state agency, created by the McAteer-Petris Act of 1965, with permit authority over San Francisco Bay and development in and along the shoreline. BCDC regulates filling, dredging and

4 Page 4 of 5 changes in use in San Francisco Bay, and requires the provision of maximum feasible public access for shoreline development projects within 100 feet of the mean high tide line (the Shoreline Band ). The BCDC is a 27-member commission with appointed representatives from the Boards of Supervisors of each Bay Area county, state and resource agencies, the State Legislature and Governor. The BCDC Chair is appointed by the Governor. Any development construction or other projects that involve installations in or over the Bay and the Shoreline Band require a permit from BCDC. The framework for BCDC s regulatory authority is set forth in the San Francisco Bay Plan, which establishes requirements to guide the protection and use of the Bay and its shoreline. In collaboration with the City and County of San Francisco, in 1975 BCDC adopted a San Francisco Waterfront Special Area Plan (SAP). The BCDC SAP provides more site-specific direction of the Bay Plan regarding uses, fill, public access and design for piers and shoreline areas from Fisherman s Wharf to India Basin. The SAP has been updated periodically. In 2000, BCDC approved a major package of amendments to the SAP in concert with Port Commission approval of amendments to the Waterfront Land Use Plan to align policies for the Northeastern Waterfront area, between Pier 35 and China Basin Channel. These amendments enabled the waterfront development projects approved, including Piers 1-5, Exploratorium, and the Bryant Street Pier Mixed Use Cruise Terminal project at Piers The SAP amendments set forth new policies for: 1. repair, seismic upgrades and development on certain existing piers, consistent with the public trust; 2. public access on piers; 3. replacing prior fill removal rules with new requirements for the removal of specified piers to created four designated Open Water Basins ; 4. creating two major new waterfront public parks, one of which is the Brannan Street Wharf; and 5. funding and timeline requirements for implementing fill removal and public plazas, linked to new development on piers. The SAP contains extensive and detailed descriptions and requirements for development and public access in the Northeastern Waterfront area. The SAP requirements as they apply to pier development and public access applicable to Piers 30-32, and design criteria for public access and public views are provided in an appendix to this memorandum. These define the regulatory framework for BCDC permit review process for the Warriors project, including the criteria for determining that it provides maximum feasible public access. The appendix also includes SAP excerpts pertaining to the Brannan Street Open Water Basin, which was created through the removal of Piers 34 and 36, and the construction of the Brannan Street Wharf park now under construction and due to be completed this summer. Both improvements are major elements of the package of public benefits that enabled the SAP amendments to be approved by BCDC in The review of the Piers project will be reviewed by BCDC in the context of its regulations and SAP requirements for Piers and the Brannan Street Open Water Basin and Brannan Street Wharf. BCDC Process for Consideration of the Proposed Piers Multi-Purpose Venue The Golden State Warriors, acting through its GSW Arena LLC, will jointly apply with the Port to BCDC for a Major Permit for the proposed project.

5 Page 5 of 5 In voting to approve any Major Permit in the Northeastern Waterfront area designated by the SAP, the BCDC Commission will typically have to find the project is 1) consistent with the public trust, 2) is consistent with the policies set forth in the SAP for mixed use development on the Piers site, and 3) provides maximum feasible dedicated public access. In the case of Piers 30-32, the SAP requires that at least 35% of any proposed mixed-use development on the piers be dedicated open space and full perimeter public access around the piers. The SAP also articulates the need to preserve specific public views, including views of the Bay Bridge from public rights-of-way in the area. As part of this process, BCDC staff will typically engage in detailed review of the proposed project and its design to suggest potential changes to the design that improve the public s use and enjoyment of the proposed project. Suggested changes are often proposed in order to improve public access, preserve important public views, minimize or eliminate proposed fill, enhance recreational maritime opportunities, and minimize conflicts between users (such as pedestrian versus vehicle access). Subsequent to staff review, proposed projects requiring a BCDC Major Permit are subject to design review by a joint committee of the BCDC Design Review Board ( DRB ) and the City s Waterfront Design Advisory Committee ( WDAC ). DRB is a public design review body that provides comments on the proposed design approach to public access, open space, views from public areas, and transportation access, with an emphasis on pedestrian enjoyment of Herb Caen Way. For a project of this scale, DRB typically schedules several public design review meetings which provide an opportunity for the public to provide input to the DRB and the project sponsor. In addition, this project will be reviewed by BCDC s Engineering Criteria Review Board, to evaluate project structural engineering design plans. After DRB is complete, BCDC staff will typically make a recommendation to the BCDC Commission as to whether to approve the Major Permit application, and the Commission will subsequently vote whether to issue the Major Permit. As a regulatory permit, the conditions of the permit are legally binding on the project sponsor and the Port