Under existing law, known as the public trust doctrine, the state has title as trustee to all tidelands and navigable lakes and streams and is charged with preserving these waterways for navigation, commerce, and fishing, as well as for scientific study, recreation, and as an open space and habitat for birds and marine life. Existing law establishes the State Lands Commission in the Natural Resources Agency. Existing law provides that the commission has exclusive jurisdiction over all ungranted tidelands and submerged lands owned by the state. Existing law authorizes the commission to enter into an exchange, with any person or any private or public entity, of filled or reclaimed tidelands and submerged lands or beds of navigable waterways, or interests in these lands, that are subject to the public trust for commerce, navigation, and fisheries, for other lands or interests in lands, if the commission finds that specified conditions are met.

This bill would authorize the commission to convey to the City of Alameda, in trust, as defined, and the bill would authorize the city to accept, any lands to be exchanged into the trust pursuant to an exchange agreement, as defined, to which the city is a party, as provided. The bill would grant the Encinal Terminals public trust lands, as defined, to the city, in accordance with the terms and conditions of the Encinal Terminals exchange agreement, as defined, to be held by the city subject to the terms and conditions of the granting act, as defined, and the public trust, as defined. By adding to the duties of the city with respect to the use and management of trust lands, this bill would impose a state-mandated local program.

The bill would require the commission to notify the appropriate committees of the Legislature if the conveyances authorized in the Encinal Terminals exchange agreement have not been completed within the terms of the agreement, as provided.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Alameda.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Under existing law, known as the public trust doctrine, the state has title as trustee to all tidelands and navigable lakes and streams and is charged with preserving these waterways for navigation, commerce, and fishing, as well as for scientific study, recreation, and as an open space and habitat for birds and marine life. Existing law establishes the State Lands Commission in the Natural Resources Agency. Existing law provides that the commission has exclusive jurisdiction over all ungranted tidelands and submerged lands owned by the state. Existing law authorizes the commission to enter into an exchange, with any person or any private or public entity, of filled or reclaimed tidelands and submerged lands or beds of navigable waterways, or interests in these lands, that are subject to the public trust for commerce, navigation, and fisheries, for other lands or interests in lands, if the commission finds that specified conditions are met.

This bill would authorize the commission to convey to the City of Alameda, in trust, as defined, and the bill would authorize the city to accept, any lands to be exchanged into the trust pursuant to an exchange agreement, as defined, to which the city is a party, as provided. The bill would grant the Encinal Terminals public trust lands, as defined, to the city, in accordance with the terms and conditions of the Encinal Terminals exchange agreement, as defined, to be held by the city subject to the terms and conditions of the granting act, as defined, and the public trust, as defined. By adding to the duties of the city with respect to the use and management of trust lands, this bill would impose a state-mandated local program.

The bill would require the commission to notify the appropriate committees of the Legislature if the conveyances authorized in the Encinal Terminals exchange agreement have not been completed within the terms of the agreement, as provided.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Alameda.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Under existing law, known as the public trust doctrine, the state has title as trustee to all tidelands and navigable lakes and streams and is charged with preserving these waterways for navigation, commerce, and fishing, as well as for scientific study, recreation, and as an open space and habitat for birds and marine life. Existing law establishes the State Lands Commission in the Natural Resources Agency. Existing law provides that the commission has exclusive jurisdiction over all ungranted tidelands and submerged lands owned by the state. Existing law authorizes the commission to enter into an exchange, with any person or any private or public entity, of filled or reclaimed tidelands and submerged lands or beds of navigable waterways, or interests in these lands, that are subject to the public trust for commerce, navigation, and fisheries, for other lands or interests in lands, if the commission finds that specified conditions are met.

This bill would authorize the commission to convey to the City of Alameda, in trust, as defined, and the bill would authorize the city to accept, any lands to be exchanged into the trust pursuant to an exchange agreement, as defined, to which the city is a party, as provided. The bill would grant the Encinal Terminals public trust lands, as defined, to the city, in accordance with the terms and conditions of the Encinal Terminals exchange agreement, as defined, to be held by the city subject to the terms and conditions of the granting act, as defined, and the public trust doctrine, trust, as defined. By adding to the duties of the city with respect to the use and management of trust lands, this bill would impose a state-mandated local program.

The bill would require the commission to notify the appropriate committees of the Legislature if the conveyances authorized in the Encinal Terminals exchange agreement have not been completed within the terms of the agreement, as provided.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Alameda.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Under existing law, known as the public trust doctrine, the state has title as trustee to all tidelands and navigable lakes and streams and is charged with preserving these waterways for navigation, commerce, and fishing, as well as for scientific study, recreation, and as an open space and habitat for birds and marine life. Existing law establishes the State Lands Commission in the Natural Resources Agency. Existing law provides that the commission has exclusive jurisdiction over all ungranted tidelands and submerged lands owned by the state. Existing law authorizes the commission to enter into an exchange, with any person or any private or public entity, of filled or reclaimed tide and submerged lands or beds of navigable waterways, or interests in these lands, that are subject to the public trust for commerce, navigation, and fisheries, for other lands or interests in lands, if the commission finds that specified conditions are met.

This bill would provide that it is the intent of the Legislature to enact future legislation that would authorize the commission to transfer specific public trust lands to the City of Alameda.

 CONSENT  

Bill No: AB 1706

Author: Bonta (D), et al.

Amended: 3/30/23 in Assembly

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 11-0, 6/22/23

AYES: Min, Seyarto, Allen, Dahle, Grove, Hurtado, Laird, Limón, McGuire, Padilla, Stern

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 75-0, 5/4/23 (Consent) - See last page for vote

SUBJECT: Public trust lands: Encinal Terminals public trust lands: City of Alameda

SOURCE: California State Lands Commission

City of Alameda

DIGEST:

This bill grants public trust lands at the Encinal Terminals to the City of Alameda in trust, effective upon their conveyance to the city pursuant to this bill’s authorization and in accordance with the Encinal Terminals exchange agreement.

ANALYSIS:

Existing law:

1. Defines the “public trust doctrine” to mean the common law doctrine, as enunciated by the court in National Audubon Soc. v. Superior Court (1983) 33 Cal.3d 419, and other relevant judicial decisions, specifying the state’s authority as sovereign to exercise continuous supervision and control over the navigable waters of the state, the lands underlying those waters, and nonnavigable tributaries to navigable waters, including the protection of maritime or water-dependent commerce, navigation, and fisheries, and the preservation of the lands in their natural state for scientific study, open space, wildlife habitat, and water-oriented recreation.
2. Establishes the State Lands Commission (SLC) in the California Natural Resources Agency (CNRA) and grants SLC exclusive jurisdiction over all ungranted tidelands and submerged lands owned by the state, including public trust lands. Provides SLC with oversight authority over public trust lands granted by the Legislature to local public agencies (granted lands). Public Resources Code (PRC) §§6009, 6101 and 6301.
3. Authorizes SLC to enter into an exchange, with any person or any private or public entity, of filled or reclaimed tide and submerged lands or beds of navigable waterways, or interests in these lands, that are subject to the public trust for commerce, navigation, and fisheries, for other lands or interests in lands, if specified conditions are met. PRC §6307.
4. Grants to the City of Alameda (city or trustee) the salt marsh, tide and submerged lands of the State of California, including the right to wharf out therefrom to the City of Alameda, and regulating the management, use, and control thereof. Chapter 348, Statutes of 1913, as amended.

This bill grants public trust lands at the Encinal Terminals to the City of Alameda in trust, effective upon their conveyance to the city pursuant to this bill’s authorization and in accordance with the Encinal Terminals exchange agreement. Specifically, this bill:

1. Grants the Encinal Terminals public trust lands to the City of Alameda in trust, effective upon their conveyance to the city, as specified, to be held by the city subject to the terms and conditions of the granting act and the public trust.
   1. Requires SLC to notify the appropriate committees of the Legislature if the conveyances authorized in the Encinal Terminals exchange agreement have not been completed within the term of that agreement and explain why the conveyances did not proceed. Further, requires SLC to post this information on its internet website.
2. Authorizes SLC to convey to the City of Alameda, in trust, any lands to be exchanged into the trust pursuant to an exchange agreement, as defined. Further:
   1. Authorizes the city to accept the conveyance of lands, as specified.
   2. Provides that, upon conveyance of these lands to the city in accordance with the exchange agreement, as specified, the lands shall be deemed included in the state’s grant of lands to the city (the granting act), and shall be held by the city in trust, subject to the terms and conditions of the grant and the common law public trust.
3. Provides that an exchange agreement shall be conclusively presumed to be valid unless held to be invalid in an appropriate proceeding in a court of competent jurisdiction, as specified.
4. Provides that a quiet title action may be brought to establish title to any lands conveyed pursuant an exchange agreement and to confirm the validity of the agreement, as specified.
5. Provides a diagram that shows the proposed exchange areas (note this diagram is visible in the pdf version of the bill).
6. Defines terms, including “Encinal Terminals exchange agreement.
7. Makes various findings and declarations.

Background

The Public Trust Doctrine. In general, the public trust doctrine provides that filled and unfilled tide and submerged lands and the beds of lakes, streams, and other navigable waterways (i.e. public trust lands) are to be held in trust by the state for the benefit of the people of California. The public trust doctrine began as an ancient common law doctrine and exists today as a robust and vital common law doctrine that protects the public’s right to use California’s waterways and waterfronts.

The California Legislature is the ultimate trustee of public trust lands in the state and provides direction on permissible uses of trust property in legislative grants. SLC is the steward and manager of the state’s public trust lands. SLC has direct administrative control over the state’s public trust lands and oversight authority over public trust lands granted by the Legislature to over 70 local public trust agencies.

City of Alameda - Granted Lands. In 1913, the Legislature granted to the City of Alameda, via Chapter 348 of the Statutes of 1913, all of the state’s right, title, and interest in the trust lands within the boundaries of the city. As such, the city is trustee of over 7,700 acres of legislatively-granted public trust lands on the Oakland-Alameda Estuary. The granting act requires the city to hold and manage the granted lands as trustee on behalf of the people of the state, subject to the trust and the terms and conditions of the granting act.

Over time, the Alameda shoreline has been altered numerous times by artificial dredging and filling activity. As a result, certain lands along the city’s shoreline and underlying adjacent waters are privately owned and claimed to be free of the trust, while certain granted trust lands have been filled and are cut off from the water and not useful for trust purposes. In addition, the precise boundaries between the granted lands and adjacent private lands is often uncertain. This has led to the inability to develop private lands for housing and other uses, made portions of the city’s waterfront inaccessible to the public, and caused certain portions of the city’s granted trust lands to remain vacant and unused for their intended public purposes.

City of Alameda - Granted Lands - Encinal Terminals. One of the largest areas of unused granted lands in the City of Alameda is the Encinal Terminals site, comprising approximately 32 acres across four parcels on the city’s northern waterfront. The site contains substantial dredged and filled lands that supported major port operations in the first half of the 20th century, but those operations ceased by the late 1980s. The city used the site for container storage until about 2010. The land has been vacant since. The area now consists of a few vacant warehouses and shed buildings amid asphalt and concrete paving. The waterfront wharves are in disrepair and require seismic upgrading and/or demolition. There is no public access to the site.

Figure 1 below shows the current configuration of the Encinal Terminals property, where most of the waterfront is privately owned and not publicly accessible. Specifically, parcels 1, 2, and 3, comprising of 20.42 acres of land and 5.48 acres of submerged land, are privately owned by the North Waterfront Cove LLC, identified on the map as “NWC” parcels. The City of Alameda owns the other, landlocked parcel, titled “City Tidelands,” comprising of 6.4 acres.

Figure 1. Ownership Map of the Encinal Terminals Property

Providing public access and utilities to the City Tidelands site would require crossing the adjacent private lands owned by the North Waterfront Cove LLC. Additionally, the true boundary between the city’s parcel and the North Waterfront Cove LLC’s private property cannot be ascertained with certainty.

Encinal Terminals exchange agreement. In August 2022, SLC approved a Land Exchange and Title Settlement Agreement that would resolve the boundary disputes and reconfigure the public trust lands at the Encinal Terminals through a series of conveyances between the city, North Waterfront Cove LLC, and the state. The agreement also would facilitate the mixed-use development at the waterfront site, which includes residential uses, a bay-trail waterfront promenade, park, and plazas. The conveyances proposed in the agreement require the Legislature’s approval to grant the lands that are conveyed into the public trust back to the city, in trust. With legislative approval, those lands, once conveyed, would fall under SLC’s control and management.

Comments

The Agreements. In 2022, the City of Alameda approved a number of agreements with the owner-developer (North Waterfront Cove LLC) of the private lands at the Encinal Terminals site, including the Encinal Terminals exchange agreement between the city, SLC, and the developer.

Under the Encinal Terminals exchange agreement, private lands along the waterfront and adjacent submerged lands will be exchanged into the trust, and certain city lands cut off from the water and no longer useful for the public trust will be exchanged out of the trust and into private ownership. The city’s ownership of the trust lands would increase from 6.4 acres to 20.75 acres and the developer’s ownership of private lands would decrease from 26.15 acres to 11.8 acres of land. Figure 2 on the following page shows which lands will be exchanged under the agreement.

The Encinal Terminals exchange agreement provides that the state shall hold title to the lands exchanged into the trust until the Legislature has authorized a grant of those lands to the city. This bill accomplishes that by authorizing, subject to specified terms and conditions, conveyance of the lands in trust from the state to the city. Thus, the city would ultimately hold title to and manage the waterfront park and other Encinal Terminals trust lands following passage of this bill and the exchange.

Figure 2. Pre- and Post- Exchange Configurations of the Encinal Terminals

Pre-Exchange Configuration Post-Exchange Configuration

The agreement authorizes the land exchange to be implemented in four phases. Each phase of the exchange is conditioned on the developer’s completion of public improvements for that phase, at the developer’s sole cost. In other words, the lands would not transfer ownership until the developer has completed the various improvements at each stage. Further, if the Encinal Terminals project does not commence, no transfers would occur. Under the agreement, the developer must fund and construct:

• Sea level rise protection and environmental remediation for private and public trust lands.
• All new infrastructure, including sewer, storm, power, roads, etc. for private and public trust lands.
• All waterfront amenities located on public trust lands, including the Bay Trail, parks, roads, promenades, etc.
• 589 housing units, of which 80 would be deed-restricted for very low-, low- and moderate-income households and ten would be income-restricted for sale units. These units would be located on private lands.

Ultimately, the exchange would expand public access, enjoyment, and ownership of waterfront lands at no cost to state or City of Alameda.

Related/Prior Legislation

SB 2049 (Perata, Chapter 734, Statutes of 2000) enacted the Naval Air Station Alameda Pubic Trust Exchange Act and authorized SLC to carry out an exchange of public trust lands within the Naval Air Station property.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 7/3/23)

California State Lands Commission (co-source)

City of Alameda (co-source)

Alameda Chamber & Economic Alliance

Alameda Point Collaborative

Bike Walk Alameda

East Bay YIMBY

North Waterfront Cove, LLC

OPPOSITION: (Verified 7/3/23)

None received

ARGUMENTS IN SUPPORT: According to the author, “The Encinal Terminals property is a 32-acre site located in the City of Alameda. It consists of four parcels, three of which are privately owned and a 6.4-acre tideland parcel that is publicly owned. Ten years ago, the City of Alameda re-zoned the property for housing but due to the intersection of the private and public land, has not been able to begin any development. Currently, the publicly owned parcel is inaccessible to the public because the parcel is land-locked with no access to water, no utilities, and no public access. The City of Alameda has approved a plan to build 589 housing units, provide access to more than 4 acres of waterfront parks, and turn 13 acres of submerged lands into a marina. Additionally, the City of Alameda, the private property owner, and the State Lands Commission entered into an exchange agreement to reconfigure the property lines for the benefit of the public, facilitating the construction of housing on the property. However, existing law prohibits the State Lands Commission from transferring state public trust lands without legislative authorization. AB 1706 is needed to allow for the land to be redeveloped and used for housing and public shoreline open space.”

ASSEMBLY FLOOR: 75-0, 5/4/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Ward, Weber, Wilson, Wood, Zbur, Rendon

NO VOTE RECORDED: Flora, McKinnor, Muratsuchi, Wallis, Wicks

Prepared by: Catherine Baxter / N.R. & W. / (916) 651-4116

7/5/23 14:50:40

**** END ****

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB 1706 Hearing Date: June 22, 2023

Subject: Public trust lands: Encinal Terminals public trust lands: City of Alameda

BACKGROUND AND EXISTING LAW

Existing law:

1. Defines the “public trust doctrine” to mean the common law doctrine, as enunciated by the court in National Audubon Soc. v. Superior Court (1983) 33 Cal.3d 419, and other relevant judicial decisions, specifying the state’s authority as sovereign to exercise continuous supervision and control over the navigable waters of the state, the lands underlying those waters, and nonnavigable tributaries to navigable waters, including the protection of maritime or water-dependent commerce, navigation, and fisheries, and the preservation of the lands in their natural state for scientific study, open space, wildlife habitat, and water-oriented recreation.
2. Establishes the State Lands Commission (SLC) in the California Natural Resources Agency (CNRA) and grants SLC exclusive jurisdiction over all ungranted tidelands and submerged lands owned by the state, including public trust lands. Provides SLC with oversight authority over public trust lands granted by the Legislature to local public agencies (granted lands). Public Resources Code (PRC) §§6009, 6101 and 6301.
3. Authorizes SLC to enter into an exchange, with any person or any private or public entity, of filled or reclaimed tide and submerged lands or beds of navigable waterways, or interests in these lands, that are subject to the public trust for commerce, navigation, and fisheries, for other lands or interests in lands, if specified conditions are met. PRC §6307.
4. Grants to the City of Alameda (city or trustee) the salt marsh, tide and submerged lands of the State of California, including the right to wharf out therefrom to the City of Alameda, and regulating the management, use, and control thereof. Chapter 348, Statutes of 1913, as amended.

Background:

The Public Trust Doctrine. In general, the public trust doctrine provides that filled and unfilled tide and submerged lands and the beds of lakes, streams, and other navigable waterways (i.e. public trust lands) are to be held in trust by the state for the benefit of the people of California. The public trust doctrine began as an ancient common law doctrine and exists today as a robust and vital common law doctrine that protects the public’s right to use California’s waterways and waterfronts.

The California Legislature is the ultimate trustee of public trust lands in the state and provides direction on permissible uses of trust property in legislative grants. SLC is the steward and manager of the state’s public trust lands. SLC has direct administrative control over the state’s public trust lands and oversight authority over public trust lands granted by the Legislature to over 70 local public trust agencies.

City of Alameda - Granted Lands. In 1913, the Legislature granted to the City of Alameda, via Chapter 348 of the Statutes of 1913, all of the state’s right, title, and interest in the trust lands within the boundaries of the city. As such, the city is trustee of over 7,700 acres of legislatively-granted public trust lands on the Oakland-Alameda Estuary. The granting act requires the city to hold and manage the granted lands as trustee on behalf of the people of the state, subject to the trust and the terms and conditions of the granting act.

Over time, the Alameda shoreline has been altered numerous times by artificial dredging and filling activity. As a result, certain lands along the city’s shoreline and underlying adjacent waters are privately owned and claimed to be free of the trust, while certain granted trust lands have been filled and are cut off from the water and not useful for trust purposes. In addition, the precise boundaries between the granted lands and adjacent private lands is often uncertain. This has led to the inability to develop private lands for housing and other uses, made portions of the city’s waterfront inaccessible to the public, and caused certain portions of the city’s granted trust lands to remain vacant and unused for their intended public purposes.

City of Alameda - Granted Lands - Encinal Terminals. One of the largest areas of unused granted lands in the City of Alameda is the Encinal Terminals site, comprising approximately 32 acres across four parcels on the city’s northern waterfront. The site contains substantial dredged and filled lands that supported major port operations in the first half of the 20th century, but those operations ceased by the late 1980s. The city used the site for container storage until about 2010. The land has been vacant since. The area now consists of a few vacant warehouses and shed buildings amid asphalt and concrete paving. The waterfront wharves are in disrepair and require seismic upgrading and/or demolition. There is no public access to the site.

Figure 1 below shows the current configuration of the Encinal Terminals property, where most of the waterfront is privately owned and not publicly accessible. Specifically, parcels 1, 2, and 3, comprising of 20.42 acres of land and 5.48 acres of submerged land, are privately owned by the North Waterfront Cove LLC, identified on the map as “NWC” parcels. The City of Alameda owns the other, landlocked parcel, titled “City Tidelands,” comprising of 6.4 acres.

Figure 1. Ownership Map of the Encinal Terminals Property

Providing public access and utilities to the City Tidelands site would require crossing the adjacent private lands owned by the North Waterfront Cove LLC. Additionally, the true boundary between the city’s parcel and the North Waterfront Cove LLC’s private property cannot be ascertained with certainty.

Encinal Terminals exchange agreement. In August 2022, SLC approved a Land Exchange and Title Settlement Agreement that would resolve the boundary disputes and reconfigure the public trust lands at the Encinal Terminals through a series of conveyances between the city, North Waterfront Cove LLC, and the state. The agreement also would facilitate the mixed-use development at the waterfront site, which includes residential uses, a bay-trail waterfront promenade, park, and plazas. The conveyances proposed in the agreement require the Legislature’s approval to grant the lands that are conveyed into the public trust back to the city, in trust. With Legislative approval, those lands, once conveyed, would fall under SLC’s control and management.

PROPOSED LAW

This bill would grant public trust lands at the Encinal Terminals to the City of Alameda in trust, effective upon their conveyance to the city pursuant to the bill’s authorization and in accordance with the Encinal Terminals exchange agreement. Specifically, this bill would:

1. Grant the Encinal Terminals public trust lands to the City of Alameda in trust, effective upon their conveyance to the city, as specified, to be held by the city subject to the terms and conditions of the granting act and the public trust.
   1. Require SLC to notify the appropriate committees of the Legislature if the conveyances authorized in the Encinal Terminals exchange agreement have not been completed within the term of that agreement and explain why the conveyances did not proceed. Further, require SLC to post this information on its internet website.
2. Authorize SLC to convey to the City of Alameda, in trust, any lands to be exchanged into the trust pursuant to an exchange agreement, as defined. Further:
   1. Authorize the city to accept the conveyance of lands, as specified.
   2. Provide that, upon conveyance of these lands to the city in accordance with the exchange agreement, as specified, the lands shall be deemed included in the state’s grant of lands to the city (the granting act), and shall be held by the city in trust, subject to the terms and conditions of the grant and the common law public trust.
3. Provide that an exchange agreement shall be conclusively presumed to be valid unless held to be invalid in an appropriate proceeding in a court of competent jurisdiction, as specified.
4. Provide that a quiet title action may be brought to establish title to any lands conveyed pursuant an exchange agreement and to confirm the validity of the agreement, as specified.
5. Provide the following diagram within the bill (note this diagram is visible in the pdf version of the bill):

1. Define terms, including “Encinal Terminals exchange agreement.
2. Make various findings and declarations, including:
   1. The purpose of the bill to facilitate the productive reuse of former tidelands within the City of Alameda for much needed housing and other economic uses while improving the configuration of trust lands to ensure public access to and enjoyment of the waterfront and the San Francisco Bay.
   2. The history of the Encinal Terminals and associated agreements, including a short summary of the exchange agreement and what it requires.
   3. The need for a special statute.
   4. That no reimbursement is required for the reasons provided.

ARGUMENTS IN SUPPORT

According to the author, “The Encinal Terminals property is a 32-acre site located in the City of Alameda. It consists of four parcels, three of which are privately owned and a 6.4-acre tideland parcel that is publicly owned. Ten years ago, the City of Alameda re-zoned the property for housing but due to the intersection of the private and public land, has not been able to begin any development. Currently, the publicly owned parcel is inaccessible to the public because the parcel is land-locked with no access to water, no utilities, and no public access. The City of Alameda has approved a plan to build 589 housing units, provide access to more than 4 acres of waterfront parks, and turn 13 acres of submerged lands into a marina. Additionally, the City of Alameda, the private property owner, and the State Lands Commission entered into an exchange agreement to reconfigure the property lines for the benefit of the public, facilitating the construction of housing on the property. However, existing law prohibits the State Lands Commission from transferring state public trust lands without legislative authorization. AB 1706 is needed to allow for the land to be redeveloped and used for housing and public shoreline open space.”

ARGUMENTS IN OPPOSITION

None received.

COMMENTS

The Agreements. In 2022, the City of Alameda approved a number of agreements with the owner-developer (North Waterfront Cove LLC) of the private lands at the Encinal Terminals site, including the Encinal Terminals exchange agreement between the city, SLC, and the developer.

Under the Encinal Terminals exchange agreement, private lands along the waterfront and adjacent submerged lands will be exchanged into the trust, and certain city lands cut off from the water and no longer useful for the public trust will be exchanged out of the trust and into private ownership. The city’s ownership of the trust lands would increase from 6.4 acres to 20.75 acres and the developer’s ownership of private lands would decrease from 26.15 acres to 11.8 acres of land. Figure 2 on the following page shows which lands will be exchanged under the agreement.

The Encinal Terminals exchange agreement provides that the state shall hold title to the lands exchanged into the trust until the Legislature has authorized a grant of those lands to the city. This bill would accomplish that by authorizing, subject to specified terms and conditions, conveyance of the lands in trust from the state to the city. Thus, the city would ultimately hold title to and manage the waterfront park and other Encinal Terminals trust lands following passage of this bill and the exchange.

Figure 2. Pre- and Post- Exchange Configurations of the Encinal Terminals

Pre-Exchange Configuration Post-Exchange Configuration

The agreement authorizes the land exchange to be implemented in four phases. Each phase of the exchange is conditioned on the developer’s completion of public improvements for that phase, at the developer’s sole cost. In other words, the lands would not transfer ownership until the developer has completed the various improvements at each stage. Further, if the Encinal Terminals project does not commence, no transfers would occur. Under the agreement, the developer must fund and construct:

• Sea level rise protection and environmental remediation for private and public trust lands.
• All new infrastructure, including sewer, storm, power, roads, etc. for private and public trust lands.
• All waterfront amenities located on public trust lands, including the Bay Trail, parks, roads, promenades, etc.
• 589 housing units, of which 80 would be deed-restricted for very low-, low- and moderate-income households and ten would be income-restricted for sale units. These units would be located on private lands.

Ultimately, the exchange would expand public access, enjoyment, and ownership of waterfront lands at no cost to state or City of Alameda.

Quiet Title Action. This bill also provides a procedure for confirming the validity of exchange agreements to provide certainty about title and boundary matters and facilitate financing for the development contemplated by those agreements. This validation language requires that any challenge to the validity of such exchange agreement be brought within one year of the agreement's recording, or if it was recorded more than 10 months before the act's effective date, then 60 days after that effective date. If such action is not brought within the required period, the agreement is presumed valid.

The most immediate purpose of this section of the bill is to address exchanges at the Naval Air Station in the City of Alameda that were previously authorized in the Naval Air Station Alameda Public Trust Exchange Act (Chapter 734, Statutes of 2000). Similar provisions already apply to exchange agreements entered into pursuant to SLC’s general trust exchange statute (PRC §6307), and are found in most statutes authorizing specific trust exchanges. However, a similar provision was not included in the Naval Air Station Alameda Public Trust Exchange Act, which authorized an exchange at Alameda Point. According to SLC, the validation language in this bill is necessary to ensure that no title insurance problems arise in connection with Alameda Point trust exchanges.

Previous legislation.

SB 2049 (Perata, Chapter 734, Statutes of 2000) enacted the Naval Air Station Alameda Pubic Trust Exchange Act and authorized SLC to carry out an exchange of public trust lands within the Naval Air Station property.

SUPPORT

California State Lands Commission (cosponsor)

City of Alameda (cosponsor)

Alameda Chamber & Economic Alliance

Alameda Point Collaborative

Bike Walk Alameda

East Bay YIMBY

North Waterfront Cove, LLC

OPPOSITION

None received

-- END --

Date of Hearing: April 26, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1706

Author:(Bonta) – As Amended Ver:March 30, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This act authorizes the State Lands Commission (SLC) to convey to the City of Alameda (city) lands that are exchanged into the public trust pursuant to an exchange agreement, including the Encinal Terminals exchange agreement, and grants those lands to the city subject to the trust and the terms and conditions of the city’s statutory trust grant.

Specifically, this bill:

1. Authorizes SLC to convey to the city, in trust, and authorizes the city to accept, any lands to be exchanged into the trust pursuant to an exchange agreement to which the city is a party. Upon conveyance of any such lands to the city in accordance with the exchange agreement, this bill provides the lands shall be deemed included in the grant described in the granting act and shall be held by the city in trust, subject to the terms and conditions of the granting act and the common law public trust.
2. Grants the Encinal Terminals public trust lands to the city in trust, effective upon their conveyance to the city in accordance with the terms and conditions of the Encinal Terminals exchange agreement, to be held by the city subject to the terms and conditions of the granting act and the public trust.
3. Requires SLC, if the conveyances authorized in the Encinal Terminals exchange agreement have not been completed within the term of the agreement, to notify the Legislature, explain why the conveyances did not proceed, and post that information on its website.
4. Requires an exchange agreement to be conclusively presumed to be valid unless held to be invalid in an appropriate proceeding in a court of competent jurisdiction to determine the validity of such agreement commenced within one year after the recording of the exchange agreement, or, if the exchange agreement was recorded more than 10 months before January 1, 2024, within 60 days after January 1, 2024.
5. Provides that an action may be brought under current law to establish title to any lands conveyed pursuant to an exchange agreement and to confirm the validity of the agreement. Provides that notwithstanding current law, if the exchange agreement was authorized by the granting act, the statement of decision in the action shall include a recitation of the underlying facts and a determination as to whether the conveyance or agreement meets the requirements of the granting act, the California Constitution, if applicable, and any other law applicable to the validity of the agreement.

FISCAL EFFECT:

SLC anticipates no costs as a result of this public trust land exchange. As required by law and as confirmed by SLC, the monetary value of the lands or interests in lands received by the public trust in exchange is equal to or greater than that of the lands or interests in land given by the trust in exchange.

COMMENTS:

1) Purpose. According to the author:

The Encinal Terminals property is a 32-acre site located in the City of Alameda. It consists of four parcels, three of which are privately owned and a 6.4-acre tideland parcel that is publicly owned. Ten years ago, the City of Alameda re-zoned the property for housing but due to the intersection of the private and public land, has not been able to begin any development. Currently, the publicly owned parcel is inaccessible to the public because the parcel is land-locked with no access to water, no utilities, and no public access. The City of Alameda has approved a plan to build 589 housing units, provide access to more than 4 acres of waterfront parks, and turn 13 acres of submerged lands into a marina. Additionally, the City of Alameda, the private property owner, and the State Lands Commission entered into an exchange agreement to reconfigure the property lines for the benefit of the public, facilitating the construction of housing on the property.

However, existing law prohibits the State Lands Commission from transferring state public trust lands without legislative authorization. AB 1706 is needed to allow for the land to be redeveloped and used for housing and public shoreline open space.

2) Background. According to SLC, for more than 100 years, the Legislature has enacted more than 300 statutes granting sovereign public trust lands to over 80 local municipalities (referred to as grantees or trustees) so the lands can be managed locally for the benefit of the people of California. While these trust lands are managed locally, SLC has oversight authority to ensure local trustees are complying with the Public Trust Doctrine and the applicable granting statutes.

Revenues generated by a trustee arising out of the use or operation of their granted lands are state trust assets and must be reinvested back into the trust. These revenues must be kept separate from the local entity’s general fund and may not be used for any municipal purpose, or any purpose unconnected with the trust. Expenditures of trust funds by a trustee must be consistent with the Public Trust Doctrine and the statutory trust grant.

The City of Alameda is the trustee of more than 7,700 acres of legislatively granted public trust lands on the Oakland-Alameda Estuary. One of the largest areas of unused granted lands in the city is the Encinal Terminals site, comprising approximately 32 acres. Encinal Terminals was built in 1925 on the city’s northern waterfront. In the 1950s, Encinal Terminals was a major port for various goods and, in 1959, the first high-speed container-handling gantry crane in the United States was installed at the site. By the 1980s, the larger container ports such as in Oakland and Long Beach had taken the lead and Encinal Terminals could not compete as a shipping terminal. The gantry cranes were disassembled later that decade and the Encinal Terminals ceased port operations. The city used the site for container storage until about 2010. Portions of the land have been vacant since then. The area now consists of a few vacant warehouses and shed buildings amid asphalt and concrete paving. The waterfront wharves are in disrepair and require seismic upgrading or demolition. There is no public access to the site.

Over the last century and a half, the Alameda shoreline has been altered numerous times by artificial dredging and filling activity. As a result of these modifications, certain lands along the city’s shoreline and underlying adjacent waters are privately owned and are claimed to be free of the trust, while certain granted trust lands have been filled and are cut off from the water and not useful for trust purposes. In addition, the precise boundaries between the granted lands and adjacent private lands are often uncertain. This has led to the city’s inability to develop private lands for housing and other uses, made portions of the city’s waterfront inaccessible to the public, and caused certain of the city’s granted trust lands to remain vacant and unused for their intended public purposes.

In 2022, the city approved a number of agreements with the developer-owner of the private lands at the Encinal Terminals site, including the Encinal exchange agreement between the city, SLC, and developer, which authorizes a land exchange to be implemented in four phases over the next 5 to 15 years.

Under the Encinal land exchange agreement, private lands along the waterfront and adjacent submerged lands will be exchanged into the trust, and certain city lands cut off from the water and no longer useful for the trust will be exchanged out of the trust. The agreements permit development of 589 units of housing on the lands removed from the trust, including 80 affordable units, which are critical for the city to meet its regional housing needs. The agreements require the developer to construct a waterfront park and other infrastructure improvements at the developer’s sole cost, and condition each phase of the exchange on the completion of designated public improvements. Lands will not transfer to the developer until it has completed site-wide stabilization, constructed a temporary Bay Trail, and provided vehicle access to the city’s existing trust property, and each phase of the exchange is further conditioned on the developer’s completion of public improvements for that phase, including wharf removal, waterfront park improvements, and public access.

If the Encinal Terminals project does not commence, no transfers will occur. The agreements contemplate that the city will ultimately hold title to and manage the waterfront park and other Encinal trust lands following the exchange.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 10, 2023

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Luz Rivas, Chair

ABPCA Bill Id:AB 1706 (

Author:Bonta) – As Amended Ver:March 30, 2023

SUBJECT: Public trust lands: Encinal Terminals public trust lands: City of Alameda.

SUMMARY: Authorizes the State Lands Commission (SLC) to convey to the City of Alameda (City), in trust, and grants the Encinal Terminals public trust lands, as defined, to the City, in accordance with the terms and conditions of the Encinal Terminals exchange agreement.

EXISTING LAW:

1. Protects, pursuant to the common law doctrine of the public trust (Public Trust Doctrine), the public's right to use California's waterways for commerce, navigation, fishing, boating, natural habitat protection, and other water oriented activities. The Public Trust Doctrine provides that filled and unfilled tide and submerged lands and the beds of lakes, streams, and other navigable waterways (public trust lands) are to be held in trust by the state for the benefit of the people of California. (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419)
2. Establishes that SLC is the steward and manager of the state's public trust lands. SLC has direct administrative control over the state's public trust lands and oversight authority over public trust lands granted by the Legislature to local public agencies (granted lands). (Public Resources Code (PRC) 6009)
3. Authorizes SLC to enter into an exchange, with any person or any private or public entity, of filled or reclaimed tide and submerged lands or beds of navigable waterways, or interests in these lands, that are subject to the public trust for commerce, navigation, and fisheries, for other lands or interests in lands, if specified conditions are met. (PRC 6307)

FISCAL EFFECT: Unknown

THIS BILL:

1. Defines the following terms:
   1. “Encinal Terminals exchange agreement” as that certain exchange agreement entitled “Land Exchange and Title Settlement Agreement for the Encinal Terminals Project” by and among the City, SLC, and North Waterfront Cove LLC, and dated for reference February 8, 2023, entered into pursuant to Section 6307 of PRC and providing for an exchange resulting in a configuration of trust lands substantially similar to the configuration described in Section 5 of this bill;
   2. “Encinal Terminals public trust lands” as those lands to be exchanged into the trust pursuant to the Encinal Terminals exchange agreement; and,
   3. “City” as the City of Alameda.
2. Authorizes SLC to convey to the City, in trust, and the City is authorized to accept any lands to be exchanged into the trust pursuant to an exchange agreement to which the City is a party. Upon conveyance of any such lands to the City in accordance with the exchange agreement, requires the lands to deemed included in the grant described in the granting act and to be held by the City in trust, subject to the terms and conditions of the granting act and the common law public trust.
3. Grants the Encinal Terminals public trust lands to the City in trust, effective upon their conveyance to the City in accordance with the terms and conditions of the Encinal Terminals exchange agreement, to be held by the City subject to the terms and conditions of the granting act and the public trust.
4. Requires SLC, if the conveyances authorized in the Encinal Terminals exchange agreement have not been completed within the term of the Encinal Terminals exchange agreement, to notify the appropriate committees of the Legislature and explain why the conveyances did not proceed. Requires SLC to post that information on its internet website.
5. Requires an exchange agreement to be conclusively presumed to be valid unless held to be invalid in an appropriate proceeding in a court of competent jurisdiction to determine the validity of such agreement commenced within one year after the recording of the exchange agreement, or, if the exchange agreement was recorded more than 10 months before January 1, 2024, within 60 days after January 1, 2024.
6. Authorizes that an action may be brought under current law to establish title to any lands conveyed pursuant an exchange agreement and to confirm the validity of the agreement. Notwithstanding Section 764.080 of the Code of Civil Procedure, if the exchange agreement was authorized by the granting act, the statement of decision in the action shall include a recitation of the underlying facts and a determination as to whether the conveyance or agreement meets the requirements of the granting act, the California Constitution, if applicable, and any other law applicable to the validity of the agreement.
7. Finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique circumstances regarding the development of property previously granted to the City pursuant to the granting act.
8. Provides that no reimbursement is required by this act pursuant to the California Constitution.

COMMENTS:

1. Author’s statement:

The Encinal Terminals property is a 32-acre site located in the City of Alameda. It consists of four parcels, three of which are privately owned and a 6.4-acre tideland parcel that is publicly owned. Ten years ago, the City of Alameda re-zoned the property for housing but due to the intersection of the private and public land, has not been able to begin any development. Currently, the publicly owned parcel is inaccessible to the public because the parcel is land-locked with no access to water, no utilities, and no public access. The City of Alameda has approved a plan to build 589 housing units, provide access to more than 4 acres of waterfront parks, and turn 13 acres of submerged lands into a marina. Additionally, the City of Alameda, the private property owner, and the State Lands Commission entered into an exchange agreement to reconfigure the property lines for the benefit of the public, facilitating the construction of housing on the property. However, existing law prohibits the State Lands Commission from transferring state public trust lands without legislative authorization. AB 1706 is needed to allow for the land to be redeveloped and used for housing and public shoreline open space.

1. Public Trust. The foundational principle of the common law Public Trust Doctrine is that it is an affirmative duty of the state to protect the people’s common heritage in navigable waters for their common use. The traditional uses allowed under the Public Trust Doctrine were described as water-related commerce, navigation, and fisheries. As a common law doctrine, the courts have significantly shaped the Public Trust Doctrine in a number of important ways. Courts have found that the public uses to which sovereign lands are subject are sufficiently flexible to encompass changing public needs. Courts have also made clear that sovereign lands subject to the Public Trust Doctrine cannot be sold into private ownership.

For more than 100 years, the Legislature has granted public trust lands to local governments so the lands can be managed locally for the benefit of the people of California. There are more than 80 trustees in the state, including the ports of Los Angeles, Long Beach, San Diego, San Francisco, Oakland, Richmond, Benicia, and Eureka. While these trust lands are managed locally, SLC has oversight authority to ensure those local trustees are complying with the Public Trust Doctrine and the applicable granting statutes.

1. Alameda. The City of Alameda was granted sovereign tide and submerged lands in trust in 1913 for the establishment, improvement and conduct of a harbor and for the construction of wharves, docks, piers, slips, quays, and other utilities, structures, and appliances necessary or convenient for the promotion and accommodation of commerce and navigation. In 1917, the grant was amended to allow the City to convey some or all of the granted lands to the United States for certain public purposes. Beginning in 1930, the City approved several transfers of portions of the granted lands to the United States Navy for purposes of constructing what came to be known as the Naval Air Station Alameda (NAS Alameda). NAS Alameda was closed in 1997 and, in 2000, the grant was amended to authorize a land exchange involving the NAS Alameda property. This amendment also re-granted the sovereign salt marsh, tide and submerged lands within the updated city limits for the establishment, improvement and conduct of a harbor, and for other uses that promote, benefit, and accommodate public trust purposes.

Today, the City is trustee of more than 7,700 acres of legislatively granted Public Trust lands on the Oakland-Alameda Estuary pursuant to Chapter 348, Statues of 1913 (as amended).

1. Encinal Terminals. Encinal Terminals was built in 1925 on the City’s northern waterfront. In the 1950s, Encinal Terminals was a major port for various goods and in 1959, the first high-speed container-handling gantry crane in the United States was installed there. By the 1980s, the larger container ports such as Oakland and Long Beach had taken the lead and Encinal Terminals could not compete as a shipping terminal. The gantry cranes were disassembled later that decade and the Encinal Terminals ceased port operations. The City used the site for container storage until about 2010. Portions of the land have been vacant since then. The area now consists of a few vacant warehouses and shed buildings amid asphalt and concrete paving. The waterfront wharves are in disrepair and require seismic upgrading and/or demolition. There is no public access to the site.
2. Proposed project. Over the last century and a half, the Alameda shoreline has been altered numerous times by artificial dredging and filling activity. As a result of these modifications, certain lands along the city’s shoreline and underlying adjacent waters are privately owned and are claimed to be free of the trust, while certain granted trust lands have been filled and are cut off from the water and not useful for trust purposes. In addition, the precise boundaries between the granted lands and adjacent private lands is often uncertain. This has led to the inability to develop private lands for housing and other uses, made portions of the City’s waterfront inaccessible to the public, and caused certain of the City’s granted trust lands to remain vacant and unused for their intended public purposes.

One of the largest areas of unused granted lands in the city is the Encinal Terminals site, comprising approximately 32 acres. In 2022, the City approved a number of agreements with the developer-owner of the private lands at the Encinal Terminals site, including the Encinal exchange agreement between the City, SLC, and developer which authorizes a land exchange to be implemented in four phases over the next 5 to 15 years.

Under the Encinal land exchange agreement, private lands along the waterfront and adjacent submerged lands will be exchanged into the trust, and certain city lands cut off from the water and no longer useful for the trust will be exchanged out of the trust. The agreements permit development of 589 units of housing on the lands removed from the trust, including 80 affordable units, which are critical for the City to meet its regional housing needs. The agreements require the developer to construct a waterfront park and other infrastructure improvements at developer’s sole cost, and condition each phase of the exchange on the completion of designated public improvements. Lands will not transfer to the developer until it has completed site-wide stabilization, constructed a temporary Bay Trail, and provided vehicle access to the City’s existing trust property, and each phase of the exchange is further conditioned on the developer’s completion of public improvements for that phase, including wharf removal, waterfront park improvements, and public access.

If the Encinal Terminals project does not commence, no transfers will occur. The agreements contemplate that the City will ultimately hold title to and manage the waterfront park and other Encinal trust lands following the exchange

1. Affordable housing. California state law requires each community’s fair share of housing to be determined through a mandated regional housing needs allocation. In 1969, the state mandated that all California cities, towns and counties must plan for the housing needs of our residents, regardless of income.

The California Department of Housing and Community Development (HCD) required the Bay Area to plan for and revise local zoning to accommodate 441,176 additional housing units during the 2023-31 period. The approved final Regional Housing Needs Assessment (RHNA) plan distributes this requirement among the region’s nine counties and 101 cities and towns. Under the RHNA plan, the City of Alamenda is required to have 1,421 housing units for very low-income, and 818 low-income housing units. The Encinal Terminals Project will help to meet that quota.

1. This bill. The purpose of AB 1706, according to the findings and declarations, is to facilitate the productive reuse of former tidelands within the City for much needed affordable housing and other economic uses while improving the configuration of trust lands to ensure public access to and enjoyment of the waterfront and the San Francisco Bay.

AB 1706 authorizes the state to convey to the City lands that are exchanged into the trust pursuant to an exchange agreement, including the Encinal exchange agreement, and grants those lands to the City subject to the trust and the terms and conditions of the City’s statutory trust grant. The bill also provides a procedure for confirming the validity of exchange agreements, which will provide certainty about title and boundary matters and facilitate financing for the development contemplated by those agreements.

1. Related legislation.

SB 860 (Senate Committee on Natural Resources & Water, Chapter 429, Statutes of 2011) established that the requirements to complete all necessary hazardous materials remediation pursuant to the Naval Air Station Alameda Public Trust Exchange Act are satisfied if specified conditions occur.

SB 2049 (Perata, Chapter 734, Statutes of 2000) enacted the Naval Air Station Alameda Public Trust Exchange Act.

REGISTERED SUPPORT / OPPOSITION:

Support

State Lands Commission

Opposition

None on file

Analysis Prepared by: Paige Brokaw / NAT. RES. /