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Developing land in San Francisco poses unique legal challenges which are increased when the land to be developed is on the waterfront of the San Francisco Bay. As both an important public resource and a highly valuable space for real estate development, the City’s waterfront property has long generated a contentious debate between growth and preservation. This debate will take center stage on next month’s ballot when voters have a chance to weigh in on the “Waterfront Height Limit Right to Vote Act,” also known as Proposition B. The proponents of the ballot measure seek to prevent all City agencies and officers from permitting any increases to existing waterfront height limits without approval from the voters. Proposition B comes on the heels of a November 2013 ballot proposition in which the City’s voters overturned a height exemption that had previously been granted to the developer of a high-rise condominium just across the Embarcadero from the shoreline.
The debate over Proposition B highlights one of many issues facing investors and businesses that wish to develop land or perform any type of construction on San Francisco’s waterfront. In addition to complying with the City’s Planning Code and General Plan, waterfront development must also comply with the Burton Act, the Mc-Ateer Petris Act, and the Port’s Waterfront Land Use Plan.
The Burton Act, adopted by the California state legislature in 1968, transferred in trust the state’s interest in the Harbor of San Francisco to the City and mandated the creation of the Port Commission (originally called the Harbor Commission). As a result of the Burton Act, the Port of San Francisco controls port property subject to the terms of the trust agreement. The Mc-Ateer Petris Act, another product of state legislation, established the San Francisco Bay Conservation and Development Commission (“BCDC”) to prepare a plan for the preservation of the San Francisco Bay and to regulate filling of the Bay and the development of the shoreline. As a result of this legal and regulatory framework, waterfront developers may be required to comply with directives or obtain permits from the San Francisco Planning Commission and Board of Supervisors, the San Francisco Port Commission, the State Lands Commission, and the San Francisco Bay Conservation and Development Commission. This compliance is in addition to that required under the California Environmental Quality Act and other state or federal environmental laws.
The applicable waterfront land use laws and regulations address, among other things, the height and bulk of allowed developments and the allowable uses of waterfront land. Generally, land uses which promote maritime commerce, such as shipping, ship repair, fishing, recreational boating, water taxis, cruise ships, and maritime support or offices, are allowed. Also generally allowed are uses which enhance the Bay’s natural resources, or attract visitors to the Bay.
The Waterfront Land Use Plan, adopted by the Port Commission in 1997, establishes the general land use policies and objectives for waterfront lands under the Port’s jurisdiction. The Plan recognizes the changing nature of the waterfront and the careful balance needed to both preserve existing maritime and industrial uses and to allow for additional development which will revitalize the waterfront and provide revenues for the upkeep of the port. Ultimately, the Plan promotes both the preservation of the historic uses of port lands and the promotion of new uses which will ensure the waterfront’s relevance for future generations of San Franciscans. Underlying all of the policies and objectives of the Plan is the desire to make the waterfront attractive to citizens and visitors alike and to improve public access to the waterfront.
The Plan specifically addresses policies for residential and commercial uses in addition to traditional maritime uses. It encourages residential and mixed-use development on waterfront property, so long as such uses do not conflict with the maritime uses required by the Burton Act. In addition, the Plan encourages commercial uses that will draw people to the waterfront and connect the waterfront with the rest of the City. Such uses include recreational businesses, art studios, entertainment facilities, retail stores and restaurants. In line with the need to preserve the waterfront for public use, the Plan recommends prohibiting private clubs with exclusive memberships, promoting the use of public transit as a primary mode of transportation, and keeping waterfront development at a smaller scale in order to minimize the impact on existing views.
While waterfront development in San Francisco poses a variety of legal and design challenges, it also offers distinct opportunities for businesses and individuals that want to be a part of the area’s greater transformation. The benefits of waterfront development should not be overshadowed by the legal hurdles associated with such development. For this reason, we recommend that you consult counsel from the beginning of any project, in order to identify the potential legal issues and formulate an efficient and focused strategy for success.
If you would like more information on the legal issues related to developing land in San Francisco, or the contents of this article, please contact Marc Centor at email@example.com