Tuesday, July 21, 2009 | SACRAMENTO — Assemblywoman Lori Saldaña is trying to close the loophole that allowed the Navy to lease out public property for development at the Navy Broadway Complex downtown.
She has authored a bill that would repeal a law the Navy has used to sue the state and city for the right to build on disputed public land and would require that future development be approved by a state agency.
“Those lands belong to the citizens of California not the federal Department of Defense,” Saldaña said. “We want to make sure that the city and people of San Diego have a say in how those lands are developed.”
The move was spurred by a major legal misunderstanding surrounding the controversial downtown development nearly two decades ago.
The area — 15 acres of tidelands on the waterfront long entangled in community opposition and nearly set to start development — has a history of changing hands. It was public land owned by the city of San Diego, granted to the Navy, and then leased out by the Navy, without public input, to a private developer.
In 1991 the Navy sued the state, the city and the port of San Diego, among others, for the right to lease out its waterfront land for commercial use. It was land the city had given to the Navy for military purposes. The city, however, said the Navy’s plans were not military and not in accordance with the law.
The problem is in the fine print — the law’s wording is vague.
Tidelands are defined in state law as the area between where high and low tide reach. State law says that tidelands within two miles of a city, city and county, or town cannot be granted or sold to a private property. The law also prohibits anyone from denying access to tidelands from the public.
In 1929, a law was passed that said the land was no longer “tidelands,” and, therefore, free from restrictions except that the land could not be given to anyone for any purpose. The city was, however, given the right to lease it out for a maximum of 50 years with an important condition — the use could not violate the Public Trust Doctrine, which states that some natural resources (in this case, the tidelands) must remain open to the public.
Between 1919 and 1940, the city granted different portions of its tidelands property to the Navy for military and other uses with the condition, in accordance with the law, that the use did not violate the public trust.
When the Navy proposed development on the land, the city saw that as violating the agreement. To ensure access to the land, the Navy and the federal government sued.
The district court agreed with the Navy’s assertion that when the city granted the land to the Navy, it was no longer public property, no longer subject to the public trust, and that the Navy had a right to seize the 15 acres.
Saldaña’s bill would repeal the 1929 law and re-designate the land in question as “tidelands,” and, officially, as public property. The land would not then be allowed to be transferred to any party for private use.
“We want to ensure that future use of the tidelands has the most amount of local input,” Andrew Zingale, a Saldaña’s staff member.
In 2006, the Navy signed a 99-year lease with Manchester to develop the Navy Broadway Complex. The project is proposed to include a new Navy administration building, about a million square feet for both offices and hotels, space for retail, arts and public attractions, and a 1.9 acre public park to be operated by the city.
The Navy has opposed the bill on the grounds that its language is unclear and that, should it pass, the bill would leave the Navy vulnerable to less knowledgeable outside regulation. The bill would not prohibit the Navy from using the land for military uses.
“There is ambiguity on terms, on who has oversight on potential impact to fleet operations,” said Doug Sayers, a spokesman for the Navy. “How do you define what use is and what military purposes are? If we needed to place housing on an installation, how will this affect that?”
The Downtown San Diego Partnership, an organization of downtown businesses, also opposes the bill on the grounds that its wording is too ambiguous. Todd Voorhees, a spokesman, called the bill an attempt at a “one-size-fits-all” solution to the problem of ownership and said that re-opening the land to the public would lead to “two agencies working on the same footprint of land — who has jurisdiction over that?” The bill needs a “better definition of what tidelands properties could be impacted,” he said.
Saldaña maintains the bill would not touch the Navy Broadway Complex or the Navy’s current property. “That’s a real smokescreen of what the bill intends to do,” she said. She said that the Navy was trying to establish permanent residency on the waterfront and that the land should be used in the public’s best interest.
“I oppose development when we do not derive a benefit,” Saldaña said. She said that because the Navy would be under federal law, its development would not be subject to city ordinances, including the limit on building height and payment of taxes. “They could potentially build as high as they want.”
She added, “It’s an economic hit for California and San Diego if the federal government maintains control over the land.”
Saldaña’s bill was scheduled to be heard on the Senate floor last week but was held back by the author in order to wait for more support, especially from the Port of San Diego. If it passes on the Senate floor, Saldaña plans to wait to submit it to the governor, who has said he will veto all bills until the state budget is passed.
The bill was previously approved by a 7-3 vote in the Senate Committee on Natural Resources and Water. Gov. Arnold Schwarzenegger vetoed a similar bill last August authored by Saldaña because it eliminated the authority of local governments to grant tidelands, with voter approval, to the federal government. This bill keeps that authority.
Though the author’s office does not suspect the Navy was planning to gain access to more tidelands soon, they thought it important to get this done now.
“It’s the state’s responsibility to protect public lands for Californians,” Saldaña said.