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News in Depth/Flashback "Queensway Bay" Back On Front Burner: CA Supreme Court Dismisses City Hall Effort To Overturn Ruling Nixing State Agency Approval of Queensway Bay "Land Swap"
(January 7, 2006) -- The development originally called the "Queensway Bay Entertainment/Commercial" project, subsequently renamed the "Pike @ Rainbow Harbor," may become a hot button issue again in Long Beach and Sacramento.
On January 4, 2006 the CA Supreme Court gave a legal victory to local environmentalist Don May and the statewide group he heads, CA Earth Corps, by dismissing a LB City Hall effort to overturn a Court of Appeal ruling invalidating a state agency's approval of a 2001 tidelands trust exchange ("land swap") arranged by LB City Hall to facilitate the Queensway Bay project.
The polarizing nature of what many agreed at the time would be LB's defining shoreline development is documented below in flashback photos and text...along with salient parts of an August 2001 interview with former LB Councilman, then-Assemblyman, now State Senator Alan Lowenthal whom we asked at the time about the then-pending "land swap" (subsequently approved by the Council and State Lands Commission).
In April 2005, as a result of the appeal pursued by CA Earth Corps, the Court of Appeal ruled that State Lands Commission's approval of the land swap was not supported by the evidence. LB City Hall then appealed...and the CA Supreme Court has now dismissed City Hall's appeal, leaving CA Earth Corps with its Appeal court victory.
"In light of the recent amendment of Public Resources Code section 6307...review of the [CA Earth Corps. vs. State Lands Comm'n, et al.] matter is dismissed," the Supreme Court said.
The state legislation cited by the High Court flew through Sacramento in Sept. 2005 using a procedure termed "gut and amend" in which language from an unrelated bill is stripped away and new language is substituted that avoids usual hearings and debate. State Senator Denise Ducheny (D., SD) used the "gut and amend" procedure with SB 365 to give the State Lands Commission the power to approve land swaps of the type opposed by CA Earth Corps and invalidated by the Court of Appeal.
The "gut and amend" bill passed with the "yes" votes of Assemblymembers Betty Karnette (D., LB), Jenny Oropeza (D., LB-Carson) and state Senator Alan Lowenthal (D., LB-SP-PV).
Mr. May told LBReport.com that CA Earth Corps -- and a number of other CA organizations -- plan to make reversal of the 2005 "gut and amend" tidelands bill one of their top priorities in the coming months. "CA Earth Corps is not alone in our concern over what took place and how it took place," Mr. May said.
Meanwhile, the Supreme Court dismissal leaves the Appeals court decision unpublished but intact, apparently sending the issue back to the State Lands Commission. Mr. May said CA Earth Corps will be at the State Lands Commission's February meeting to press for removal of non-tidelands trust uses from the development...a category he says includes a soon to open "Borders" bookstore.
"In our view, bookstores aren't tidelands trust uses and don't belong in a tidelands development," Mr. May told LBReport.com.
[LBReport.com was unable to get comment from other parties as this story posts over the weekend but will post it as received in the coming days.]
In September 2001, the State Lands Commission (comprised of the Lt. Governor, the State Controller and the Governor's Director of Finance) approved giving up state tidelands designation on certain commercial footprints within the QW Bay tidelands areas in exchange for the state receiving from the City of LB various parcels along the L.A. river and a freeway median that now carry tidelands designation.
When a trial court (subsequently reversed) upheld officialdom's actions in 2002, then-City Manager Henry Taboada said in a City Hall release, "This [lower court] ruling validates the City's original stance that the Pike at Rainbow Harbor has always been environmentally sound." Mayor Beverly O'Neill declared at the time, "With all the legal issues behind us, we can now move forward with the largest and most vibrant waterfront development in Southern California."
The Queensway Bay development is within LB's 2d Council district, previously represented by then-Councilman Alan Lowenthal, now represented by Councilman Dan Baker.
CA Earth Corps president May said he appealed the actions by LB City Hall and the State Lands Commission on principle. "I felt what Long Beach and the State Lands Commission did was terribly wrong and a disservice to the public," Mr. May said.
Flashback
 On May 14, 2002, confetti flew, the Mayor beamed and the City Manager and developer DDR's officials were all smiles at a gala kick-off ceremony for construction of the Pike at Rainbow Harbor.
"I feel like pinching myself to know this is really happening today! I can't tell you how excited I am by this," an exuberant Mayor Beverly O'Neill told a crowd of invited city officials, business leaders and local media.
Some extended excerpts:
 Mayor Beverly O'Neill: ...[W]e can now look forward to developing the largest waterfront complex in southern California. It's really a defining moment for the city of Long Beach, because this is the final piece of the puzzle that was initiated ten years ago...And I can remember when I was first Mayor in 1994, [now retired City Manager] Jim Hankla and I would look out the window and say, see that parking lot out there? That's the most desirable piece of property in southern California. And it's going to have something on it that's going to make us all proud.
[P]eople would say, why do we need all these hotels on Ocean Blvd.? Well, that's because the Convention Center wasn't finished. Now we need more hotels. So it takes a lot of time to put all this together. So no other community in southern California can offer the combination of venues that will be located here. And once the Pike at Rainbow Harbor is completed, Carnival Cruises will be here attracting thousands of people to the city. People will have an opportunity to visit this Pike, the Queen Mary, the Aquarium of the Pacific and many of our outstanding restaurants that we have right around here.
And we shouldn't forget the number of new residents that are coming. As you're standing here and you look up and see the Camden Project, the "Park at Harbour View,"...and look at the number of people that's going to add to the downtown area. They're going to be able to walk to the downtown, walk to the Pike, and all of the things that are going to be available.
So in addition to the sales tax, and the lease revenue that the city will be realizing, one of the major features of this is it's going to create hundreds of jobs...
So with the new developments going on from the downtown, and CityPlace under construction, that also is a DDR project, our community is going under a massive revitalization that will change our landscape really forever. Long Beach will never be the city it was twenty years ago. But cities should not stand still. If they stand still, they fall behind and Long Beach is moving ahead like no other community in California.
City Manager Henry Taboada
 City Manager Henry Taboada: ...My task this morning is to thank all of the folks who have had so much to do with this project, and to share with you my joy, and my gratitude, for all that has happened and for all that is about to happen.
First to the Mayor. I couldn't thank the Mayor enough. She was there from the beginning and she has persevered along with staff, at every turn of this project, and has been steadfast in her support, and has never wavered...
I want to thank the City Council, both past and present...but this Council at every turn took courageous steps...and held firm in their belief that this was the right project.
A little over a week later on May 22, 2002:
Like a tale of two cities, it was either the best of times or the worst of times.
Outside City Hall, accompanied by sorrowful bagpipes, grassroots LB activists including Mayoral candidate Norm Ryan gathered for what was termed a "heartbreaking" ceremony, alternately mourning and ridiculing officialdom's support for the Pike at Rainbow Harbor project...
Meanwhile, inside City Hall, fax machines sent press releases cheering word that Gov. Gray Davis had signed a final document effectively ratifying the State Lands Commission "land swap" last fall...
Downstairs in the Council Chamber, Mayor Beverly O'Neill (who had been momentarily absent from the chair) returned to explain the reason for her temporary disappearance:
"I just received a call from the Governor's office, and the Governor's office has informed us that the Governor signed the bill that came from the State Lands [Commission]...this is the final step in the development of Queensway Bay and the process...And so that just happened this afternoon and I just got a telephone call, so I wanted to let you know where I was."
The Mayor's news was met by eerie silence. Many in the audience had come for an agenda item concerning alley and infrastructure repairs...and some believe City personnel and resources were previously shifted away from neighborhood tasks to handle aspects of QW Bay project...
The Governor's approval was expected, although some activists hoped he might not ratify the land swap. However, the Governor put his signature on the process as City Hall had hoped.
[M]edia outlets were sent a City Hall press release quoting Mayor O'Neill as follows, "This is a momentous occasion. It will be a pleasure to watch the Pike at Rainbow Harbor unfold during the development stage. I anticipate seeing both residents and visitors enjoying the Pike at Rainbow Harbor when it opens in 2003. Carnival Cruises, which will be taking its place next to the Queen Mary shortly, the Queen Mary, the Aquarium of the Pacific, Shoreline Village, the Long Beach Convention Center, Pine Ave. and CityPlace -- all will be connected by the Pike at Rainbow Harbor. No other community in Southern California can offer the combination of venues that will be located on our waterfront once the Pike is complete."
City Manager Henry Taboada was quoted as saying: "Mayor Beverly O'Neill and members of the City Council are to be praised for their continued support of the Pike at Rainbow Harbor. Now that all of the approvals are in place, the City will proceed immediately to a close-of-escrow on the ground lease that will allow DDR to begin construction of the long-awaited 370,000 square foot development. Today is a truly significant day for Long Beach."
Roughly nine months earlier in late August 2001, LBReport.com asked then-Assemblyman Alan Lowenthal about the then-pending land swap that City Hall had assembled to help facilitate the project. He told us in pertinent part:
Assemblyman Lowenthal: ...[S]waps have occurred before, San Diego being the most recent swap. And there's no inherent reason for the state to be against swaps if in fact the state's best interests are served by protection of land. But that's just on the generic question about swaps that has not to do with the specifics of this swap.
When I was on the City Council, I'd supported the Queensway Bay plan when the Council voted to develop the project with retail, entertainment and theater usage.
And when it went, in 1995, to the Coastal Commission, I was one of the people on the Council that supported the plan and I think we had unanimous support on the Council.
After they had broken ground on the Aquarium, I've been very disappointed that this project never moved forward as the Council had directed it to move forward and had envisioned it would move forward.
Of the last couple of years, since I've been in the Assembly, and as a Long Beach resident now and not as a City Councilman, just somebody who now watching this as a Long Beach resident, I began to have serious reservations about the project. Originally, the project was a consensus project that came out of a lot of community input. And the longer we went, the less the consensus remained. As I talked to people I began to hear reservations and I began to think we were losing the original vision.
We had some guiding principles when we brought together the Queensway Bay committee to work with us. There were some guiding principles which are no longer valid because they are not adhered to, which is fine, but it means that the city should rethink its decision and try to build new support with a new vision, and I've become more disenchanted personally.
Does this specific swap meet the state's interests? I'm not sure, I'm not sure...
I'm going to watch what the Council does, because it's their decision to send the message whether this swap really does meet local and state's interests. And I will follow this from there...
LBReport.com: In June, at the Pyramid "Day of Listening," we asked if you thought, and I'm paraphrasing now, whether you thought that the Queensway Bay plan as proposed was the best use for the property, and your answer then was you weren't sure...Do you support the tidelands exchange as proposed?
Assemblyman Lowenthal: Well, let me step back. Legally, I support the validity of having swaps. I do not see that as a problem. The plan has been approved unanimously by the Coastal Commission as an appropriate use of the land given the zoning and given how they perceived their role in protecting coastal areas. And as such, they voted unanimously in 1995 to support the plan.
So, should this be used for retail or entertainment with theaters? I that's a legitimate use of the land given the zoning, given all we've done, I think that it's appropriate.
However, even if it is legal, I'm not sure that I would support the project, and that's a personal and not a legal position."
What about his position as a legislator?
Assemblyman Lowenthal: After the State Lands Commission acts and after the city has a formal position, which they do not, then I will determine what role the legislature should have in this matter.
I will watch very closely to see whether the Council supports or doesn't support the proposed swap and what's the input from the community.
I watched the beginning of that last meeting [item], when people talked about not wanting to tie the grant proposal to a swap and the Council's position was at that time to send forth the grant application.
Now the question is, do they want to swap the specific lands proposed by the City Manager.
I'm not going say anything publicly until I see the [State] Lands Commission decision. I'm not going to try to influence State Lands beforehand because I think it's inappropriate to do that as a legislator.
I think it is appropriate that if I don't believe the interests of the state were satisfied, after listening to the full discussion at the Council and after testimony before the State Lands [Commission] that an appropriate response is for me to consider legislation...
The text of the Sept. 2005 "gut and amend" bill (empowering the State Lands Commission to approve such land swaps) follows...along with the Assembly and State Senate recorded votes:
BILL NUMBER: SB 365 CHAPTERED
An act to repeal and add Section 6307 of the Public Resources
Code, relating to tidelands and submerged lands, and declaring the
urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 365, Ducheny Tidelands and submerged lands.
(1) Existing law authorizes the State Lands Commission, whenever
it appears to the commission to be in the best interests of the
state, for the improvement of navigation, to aid in reclamation, for
flood control protection, or to enhance the configuration of the
shoreline, and that it will not substantially interfere with the
right of navigation and fishing in the waters involved, to exchange
filled or unfilled lands of equal value, as specified. Existing law
provides that the lands exchanged may be released from the public
trust for navigation and fishing, as specified.
This bill, instead, would allow 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 those lands, if the commission finds that
specified conditions are met.
(2) This bill would declare that it is to take effect immediately
as an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Section 25 of Article I and Sections 3 and 4 of Article X of
the California Constitution were adopted to protect and promote
public access to the state's waterways.
(b) The state's sovereign interests in tidelands, submerged lands,
and the beds of nontidal navigable waters, whether filled or
unfilled, are entrusted to the State Lands Commission to be protected
as public trust lands pursuant to the California Constitution and
the common law public trust doctrine.
(c) As trustee of public trust lands, the commission has a duty to
protect and promote the public's access to and use of these lands
for trust purposes, including commerce, navigation, and fishing.
(d) As trustee of public trust lands, the commission also has a
duty to protect and promote other public trust values, such as
preserving waterways and adjacent lands in their natural state as
open space and as environments that provide food and habitat for
wildlife.
(e) Since 1850, many of the lands in and along the state's
waterways have been altered by natural or human actions changing the
location of the waterways and their shorelines. Thus, in some areas
current conditions no longer reflect the ownership and boundaries of
the waterways and adjacent uplands, leaving parcels of land with
little or no utility for public trust purposes, while other lands can
be used more effectively for public trust purposes.
(f) Waterways and lands nearby are often subject to unresolved
boundary and title issues that impair the use of public lands for
public trust purposes and burden other lands with a cloud on the
title.
(g) In certain cases, and with appropriate findings, it will
further public trust purposes to acquire lands not currently subject
to the public trust or to settle title to lands subject to
conflicting title claims.
(h) To provide the commission with the necessary authority to
address these situations and continue to implement the authority set
forth in Division 7 (commencing with Section 8600) of the Public
Resources Code, without resort to protracted and costly litigation,
and to promote public trust values and uses and public access to the
state's waterways, the Legislature finds it necessary to reenact
Section 6307 of the Public Resources Code as provided in Section 3 of
this act.
SEC. 2. Section 6307 of the Public Resources Code is repealed.
SEC. 3. Section 6307 is added to the Public Resources Code, to
read:
6307. (a) The commission may 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 all of the following conditions are met:
(1) The exchange is for one or more of the purposes listed in
subdivision (c).
(2) The lands or interests in lands to be acquired in the exchange
will provide a significant benefit to the public trust.
(3) The exchange does not substantially interfere with public
rights of navigation and fishing.
(4) The monetary value of the lands or interests in lands received
by the trust in exchange is equal to or greater than that of the
lands or interests in lands given by the trust in exchange.
(5) The lands or interest in lands given in exchange have been cut
off from water access and no longer are in fact tidelands or
submerged lands or navigable waterways, by virtue of having been
filled or reclaimed, and are relatively useless for public trust
purposes.
(6) The exchange is in the best interests of the state.
(b) Pursuant to an exchange agreement, the commission may free the
lands or interest in lands given in exchange from the public trust
and shall impose the public trust on the lands or interests in lands
received in exchange.
(c) An exchange made by the commission pursuant to subdivision (a)
shall be for one or more of the following purposes, as determined by
the commission:
(1) To improve navigation or waterways.
(2) To aid in reclamation or flood control.
(3) To enhance the physical configuration of the shoreline or
trust land ownership.
(4) To enhance public access to or along the water.
(5) To enhance waterfront and nearshore development or
redevelopment for public trust purposes.
(6) To preserve, enhance, or create wetlands, riparian or littoral
habitat, or open space.
(7) To resolve boundary or title disputes.
(d) The commission may release the mineral rights in the lands or
interests in lands given in exchange if it obtains the mineral rights
in the lands or interests in lands received in exchange.
(e) The grantee of any lands or interests in lands given in
exchange may bring a quiet title action under Chapter 7 (commencing
with Section 6461) of Part 1 of Division 6 of this code or Chapter 4
(commencing with Section 760.010) of Title 10 of Part 2 of the Code
of Civil Procedure.
SEC. 4. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to recognize the benefits to the public trust from
enhancing the configuration of public ownership of and the
improvement of public access to and along the shoreline for public
trust uses, and to clarify the authority of the State Lands
Commission to conduct exchanges involving major projects throughout
the state, some of which involve hazardous waste sites, that could
otherwise be mired in costly and protracted litigation or otherwise
delayed, it is necessary that this act take effect immediately.
VOTES - ROLL CALL
MEASURE: SB 365
AUTHOR: Ducheny
TOPIC: Tidelands and submerged lands.
DATE: 09/08/2005
LOCATION: ASM. FLOOR
MOTION: SB 365 Ducheny Senate Third Reading
(AYES 79. NOES 0.) (PASS)
AYES
****
Aghazarian Arambula Baca Bass
Benoit Berg Bermudez Blakeslee
Bogh Calderon Canciamilla Chan
Chavez Chu Cogdill Cohn
Coto Daucher De La Torre DeVore
Dymally Emmerson Evans Frommer
Garcia Goldberg Hancock Harman
Haynes Jerome Horton Shirley Horton Houston
Huff Jones Karnette Keene
Klehs Koretz La Malfa La Suer
Laird Leno Leslie Levine
Lieber Liu Matthews Maze
McCarthy Montanez Mountjoy Mullin
Nakanishi Nation Nava Negrete McLeod
Niello Oropeza Parra Pavley
Plescia Richman Ridley-Thomas Sharon Runner
Ruskin Saldana Salinas Spitzer
Strickland Torrico Tran Umberg
Vargas Villines Walters Wolk
Wyland Yee Nunez
NOES
****
ABSENT, ABSTAINING, OR NOT VOTING
*********************************
Vacancy
CA SENATE
VOTES - ROLL CALL
MEASURE: SB 365
AUTHOR: Ducheny
TOPIC: Tidelands and submerged lands.
DATE: 09/08/2005
LOCATION: SEN. FLOOR
MOTION: Unfinished Supp 2 SB365 Ducheny Urgency Clause
(AYES 34. NOES 1.) (PASS)
AYES
****
Aanestad Ackerman Alarcon Alquist
Ashburn Battin Campbell Chesbro
Cox Denham Ducheny Dunn
Dutton Escutia Figueroa Florez
Hollingsworth Kehoe Kuehl Lowenthal
Machado Maldonado Margett Migden
Morrow Ortiz Perata Poochigian
Romero Runner Scott Simitian
Speier Torlakson
NOES
****
McClintock
ABSENT, ABSTAINING, OR NOT VOTING
*********************************
Bowen Cedillo Murray Soto
Vincent
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