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Persistent Taxpayers, Resistant City Hall, Bring QW Bay Threshold Questions To State Lands Comm'n; CA Coastal Comm'n May Be Next

LB City Attorney's Office Correspondence Part of Issue (we post letters)

Introduction and perspective

(May 3, 2001) -- LB City Hall's QW Bay plan finds itself confounded by a simple yet profound question:

Is a commercial and entertainment development that includes a movie theater, book store and shops, that backers consider a boon and critics portray as a "shopping center by the sea," an appropriate use of publicly owned coastal and tidelands property?

The fact that this threshold question has drawn the attention of the State Lands Commision (two of whose three members publicly indicated uneasiness with City Hall's answers) and theoretically could reach the CA Coastal Commission is remarkable.

Whether the outcome will or won't be significant is impossible to know at this point, but having such a basic issue arise now is to some extent attributable to the City Hall's record which discussed QW Bay in ways that avoided facing the issue forthrightly.

The formula has become familiar: create a hand-picked committee assuring City Hall influence; announce the plan; muster establishment weight to sell the plan as settled; brush off constructive criticism; and use incremental City Council approvals to minimize direct debate on key questions.

The same formula produced divisive outcomes in handling the former Naval Station and a proposd "sports complex" in El Dorado Park, so it should be no surprise that it produced similar results on QW Bay.

When the City Council recently faced extending the developer's deadlines, and critics struggled to raise land use issues tangentially, not one Councilmember (including dissenter Grabinski) seemed able to articulate with precision what they wanted, and didn't want, at the multi-million dollar signature project on the city's namesake coastline. (See: Transcript excerpts of historic Feb. 13, 2001 Council vote on QW Bay)

It's painful to note the obvious: the Council's failure is not the developer's fault.

A forthright debate on QW Bay's threshold land use question may now take place, not in LB where it should have, but before state agencies that could have much to say about public land and our city's future.

The two agencies -- the State Lands Commission and the CA Coastal Commission -- will likely address the coastal/tidelands question from different perspectives with outcomes that are presently uncertain.

State Lands Commission

The State Lands Commission is comprised of the Lieutenant Governor and the State Controller (who are elected statewide) and the State Director of Finance (a cabinet level officer appointed by the Governor). It also has staff; its Executive Officer appointed by the Commission.

The Lands Commission oversees state owned lands, which include tide and submerged lands ("tidelands") that the CA legislature has transferred "in trust" to LB. That means LB can use them subject to certain requirements and restrictions that include uses related to commerce, fishing, recreation and navigation. (There are roughly 23 legislative acts governing LB's tidelands, summarized in Lands Commission staff's April QW Bay report) at pp 9-11, posted April 10 by

The Commission's staff report says the agency has authority to involve itself in issues related to operations of granted trust property when it deems appropriate and note the CA Attorney General's office summarized the principles as follows:

  • The Lands Commission has the authority, though not the general duty, to systematically investigate, audit and review the administration of all tidelands grants. Furthermore, it has the duty to look into specific charges of serious maladministration coming from credible sources.

  • The Lands Commission's supervisory authority includes the power to seek corrective measures by grantees. However, it should not ordinarily purport to substitute its judgement for that of the local grantee where reasonable minds may dif0fer as to the wisdom or prudence of particular acts.

  • Except in the most flagrant cases, the nature of enforcement action of the Commission is a matter of discretion. All accusations or information of a serious character coming from a responsible source may warrant further staff inquiry or investigation, particularly when they fall into the categories of fraud, collusion, ultra vires acts, failure to perform a duty specifically enjoined by law or acts so contrary to the best interests of the trust that they constitute gross abuse of discretion or constructive fraud.

    In its report, Lands Commission staff assert the agency has only "limited responsibility to affect the decisions of grantees" and "[u]nless the legislative grant provides for specific duties to the Commission, its only remedy to overturn an action taken by a grantee, which the Commission believes is inconsistent with the grantee’s trust responsibilities in managing its granted lands, is through litigation."

    The Lands Commisson's April 24 item on QW Bay was consideration of its staff report on the QW Bay Development Plan & LB tidelands and staff's recommendation on whether a staff audit was appropriate. Because the agendized item only called for for consideration of the report, Commissioners could only voice their opinions on land use aspects and urge LB City Hall to try to develop creative ways to provide additional public benefits, but the Commission couldn't take what the Brown Act defines as a voted "action" at that meeting.

    So, Commissioners did what the Brown Act allows: they directed Commission staff to work with City Hall to try to find some mechanism to provide additional public benefits, to draft policies that would govern future proposed commercial land uses along the coast, and to revise staff's report accordingly. ( coverage at: State Lands Comm'n April 24 meeting.)

    The Commissioners also directed staff to set the QW Bay matter as an "action item" (i.e. allowing some possible action) at their next meeting in June.

    It's presently unclear what that Commission action will be. The possibilities are speculative now; theoretically, they could range from approving a movie theater with inclusion of additional public benefits, or taking no action, or disapproving the city's conduct, or something else we can't envision.

    As indicated above, Commission staff takes the position that if, hypothetically, the Lands Commission were to vote disapproval of City Hall's QW Bay plan as inconsistent with the tidelands trust, that vote alone wouldn't stop the project from going forward since the Commission's remedy would be to sue LB City Hall. In this respect, the State Lands Commission is not, strictly speaking a regulatory body.

    Lands Commission Executive Director Paul Thayer spelled out his position for the Lands Commission has authority to control future leases of state property along the coast where lands haven't yet been transferred, but that's to be distinguished from LB's tidelands which have basically been transferred from state management to local government under the tidelands trust.

    Mr. Thayer said that in cases invoving tidelands trust property (like LB), the Lands Commission basically has only general state oversight authority to address charges like mismanagement and the like. (As previously reported on, Lands Commission members echoed the views of staff's report and indicated they didn't believe LB City Hall had mismanaged tidelands assets.)

    Mr. Thayer said review authority (i.e. the power to say yes or no) rests with the Coastal Commission.

    However, even if one accepts this narrow view of Lands Commission authority as correct, environmentalists say a condition within the Coastal Commission's permit for QW Bay that, they say, has escalated the importance of the issues now before the Lands Commission.

    The CA Coastal Commission

    The CA Coastal Commission is a state agency that controls coastal development(s). It's an independent, quasi-judicial state agency composed of twelve voting members, appointed equally (four each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Half (six) of the voting commissioners are locally elected officials and half are representatives of the public at large. It also has four ex officio (non-voting) members, one of which represents the Lands Commission.

    A Sacramento Superior Court judge recently issued an opinion throwing much of the Coastal Commission's authority into question, ruling the agency's appointed membership violates the constitution's separation of powers doctrine. The decision will be appealed and its ultimate impact on QW Bay is presently unclear and not addressed in this article.

    The Coastal Commission has issued a permit for the QW Bay project. Coastal Commission staff told there is nothing specific in the permit specifically conditioned on approval by the Lands Commission.

    However, one condition of the Coastal Permit requires the applicant to demonstrate that the project is consistent with the tidelands grant. Condition #25. placed on LB City Hall by Coastal Commission Development Permit #5-98-156, states:

    "Prior to issuance of the Coastal Development Permit, the applicants shall provide written documentation to the Executive Director, including specific citation of the relevant sections of the applicable State Tidelands Grant, specifically demonstrating that the proposed project in its entirety is consistent with the terms and conditions of the Legislature's grant of this portion of the Downtown Shoreline to the City of Long Beach."

    Since the applicant is LB City Hall, and City Hall administers the tidelands grant and holds the property, the Coastal Commission took the position City Hall itself could determine what sorts of uses are appropriate under the tidelands grant.

    City Hall (not surprisingly) determined the project and its uses are consistent with the tidelands grant. On October 27, 1999, Deputy LB City Attorney James McCabe wrote a letter on behalf of City Attorney Robert Shannon to the Coastal Commission, which recited that the various tidelands grants to the city "clearly allow the intended use." has posted a copy of this letter at Oct 27/99 City of LB letter".

    The letter writer added, "I have consulted with the Executive Director of the State Lands Commission, on this matter and he concurred in my conclusion."

    Apparently on this basis, in November 1999 the Coastal Commission deemed Condition 25 was met and it was so accepted by the Coastal Commission.

    There was additional correspondence involving LB City Hall on QW Bay tidelands related matters. Condition #35 of the Coastal Permit required City Hall "to demonstrate that a proposed employee parking lot is consistent with the terms and conditions of the Legislature's grant of this portion of the Dwntown Shoreline ot the City of Long Beach." LB's City Attorney's Office sent a letter, dated April 28, 2000, which recited that parking is consistent with the tidelands grant. This letter was accepted and the condition deemed met by the Coatal Commission. We post the letter at Apr 28/2000 City of LB letter".

    Condition #38 of the coastal permit required the City to obtain a determination State Lands Commission as to whether the subdivision of tide and submerged lands within the 18 acre entertainment/commercial complex area is consistent with the terms and conditions of the tidelands grants. LB City Hall submitted a letter, dated April 19, 2000, from the State Lands Commssion, concerning LB City Hall's proposal to subdivide a portion of the area into seven parcels to facilitate construction and leasing. In the letter, the Lands Commission's Assistant General Counsel called the proposal "unusual" but concluded the subdivision was not inconsistent with the tidelands trust. This letter was accepted and the condition deemed met by the Coastal Commission. We post this letter at Apr 19/2000 Lands Commn'n Letter to LB".

    To what extent, if at all, might the State Lands Commission's April 24 discussion (in which 2 of 3 Lands Commissioners expressed unease with some QW Bay uses in the tidelands unless additional public benefits are provided) cause the Coastal Commission to revisit any or all these issues?

    That may or may not be clearer after the next Coastal Commssion meeting, opening May 7 in Monterey. QW Bay isn't presently scheduled on the Coastal Commission's agenda, but LB resident Lester Denevan, who has chronicled and criticized City Hall's record concerning its tidelands uses, has told he plans to attend the Coastal Commission meeting and raise the issue -- including what Lands Commissioners said at their April 24 meeting -- during the period allocated for non-agendized public comments.

    What, if anything, the Coastal Commissioners will say or do in response is unclear. Because it is not an agendized item, the Coastal Commission cannot take action on it. Commissioners could direct staff to bring the Commission additional information on the subject at the next meeting...or do nothing at all.

    There is a procedure for revoking Coastal Commission permits spelled out in the Coastal Commission's rules but the rules' standards are difficult to meet and arguably inapplicable here (they require some intentional falsehood that critics haven't alleged on the QW Bay permit.)

    [ note: Grounds for revoking a permit are "Intentional inclusion of inaccurate, erroneous or incomplete information in connection with a coastal development permit application, where the commission finds that accurate and complete information would have caused the commission to require additional or different conditions on a permit or deny an application...Any person who did not have an opportunity to fully participate in the original permit proceeding by reason of the permit applicant's intentional inclusion of inaccurate information... may request revocation of a permit by application to the executive director of the commission specifying, with particularity, the grounds for revocation. The executive director shall review the stated grounds for revocation and, unless the request is patently frivolous and without merit, shall initiate revocation proceedings. The executive director may initiate revocation proceedings on his or her own motion when the grounds for revocation have been established...]

    Environmental advocates, who have previously argued that City Hall's October 1999 letter isn't sufficient to meet Condition 25, hope the April 24 Lands Commission statements by two of three Commission members may bolster their arguments before the Coastal Commission now.

    On the horizon

    The Lands Commission indicated at its April 24 meeting that it would agendize the QW Bay item for some action in June. Exactly what that action will be is speculative at this point.

    Coastal Commission staff has told that procedurally, the QW Bay matter could return to the Coastal Commission agenda if the applicants apply for an amendment. There have been five previous amendments to the permit, each approved by the Coastal Commission, but there's none pending now.

    Coastal Commission staff also indicated that an extension of the permit was approved a few months ago and will come before the Commission when the permit expires in February 2002...but only if the project isn't commenced before then.

    Once the project is commenced, the permit becomes vested and it won't expire.

    The bottom line: the Coastal Commission approves Coastal Development Permits based on standards of the Coastal Act. The Lands Commission views situations in terms of consistency with tidelands trust principes.

    These are separate paths but now converge at QW Bay, just steps from a City Hall that arguably should have resolved its most basic land use issue openly and democratically long ago.

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