State Agency to Boating Community: Stop Worrying and Learn to Love BCDC

Bay Conservation and Development Commission Chief Will Travis Answers Critics

BCDC says that the McAteer-Petris act, which established BCDC, defines floating homes or boats as land fill. Can you tell me where and how this interpretation was arrived at, and how it can have the force of law?

Section 66632 of the McAteer-Petris Act defines fill as "earth or any other substance or material, including pilings or structures placed on pilings, and structures floating at some or all times and moored for extended periods, such as houseboats and floating docks." Thus, houseboats, as well as other boats used as houses (i.e., for residential purposes), which are moored for extended periods are considered fill under the provisions of state law. This interpretation has been confirmed in a number of court cases. There is no statutory or regulatory definition of the term "extended period."

To define the term "houseboats" as used in the McAteer-Petris Act, the Commission adopted a regulation (Section 10127 of the California Administrative Code), which defines a houseboat as "a boat that is used for a residential or other nonwater-oriented purposes and that is not capable of being used for active navigation." This definition doesn’t cover the kinds of houseboats seen on Lake Shasta and in the Delta because those vessels are capable of being used for active navigation. BCDC regards these vessels as recreational boats. The houseboats covered by the BCDC definition are most often called "floating homes." But some once navigable boats are now used exclusively as residences so these vessels are also covered by BCDC’s definition of "houseboat."

What is the specific code and section that gives BCDC authority to prohibit private residences on publicly-owned waters of the Bay?

Section 66605(a) of the McAteer-Petris Act limits the uses for which BCDC can approve new fill to: (1) water-oriented uses which the law specifies are "ports, water-related industry, airports, bridges, wildlife refuges, water-oriented recreation and public assembly, water intake and discharge lines for desalinization plants and power generating plants requiring large amounts of water for cooling purposes"; and (2) minor amounts of fill needed to improve shoreline appearance or public access to the Bay. The legislation does not list housing as a water-oriented use, and the courts have upheld this distinction.

In addition, the public trust doctrine, which is a property right that gives the general public the right to use lakes, rivers, the ocean and the Bay for navigation, fishing maritime commerce and open space, precludes government agencies from depriving the public of its property rights by allowing these public waterways to be used for private purposes, such as housing. The State Lands Commission is the principal administrator of the public trust statewide , but the McAteer-Petris Act is a legislative expression of these public property rights in the Bay.

Given the responsibility to carry out the mandates of the Legislature and to protect public property rights, from a purely legal perspective BCDC could have adopted a draconian prohibition against all residential use in and on the Bay. The Commission didn’t do this because in its interpretation of the law, the Commission tries to focus on enhancing the environmental quality of the Bay and protecting the public’s use of Bay. The Commission recognized that living on boats is a part of the rich history of San Francisco Bay that makes our region a more vibrant and interesting place. BCDC has also acknowledged that building portions of residential structures over the Bay can add to the attractiveness of the Bay’s shoreline. Therefore, relying on its authority to approve small amounts of fill to improve shoreline appearance, for nearly 40 years BCDC has authorized all manner of housing so long as it doesn’t interfere with the public’s right to use and enjoy the Bay.

For example, BCDC’s policies encourage residential development along the Bay shoreline; allow old dwellings built on pilings in the Bay to be upgraded; permit portions of new houses to be built over the Bay in some circumstances; authorize historic structures and historic vessels to be used for most anything, including housing; allow up to ten percent of the berths in recreational boat marinas to be used for live aboard boats; and permit existing houseboat marinas to be enlarged. In addition, the Commission has authorized a number marinas exclusively for houseboats, including five along the shoreline of Richardson Bay.

Senator John Burton, in a July 16 letter to Barbara Kaufman, says "It was never (Senator Petris’) intention for BCDC ‘to have authority over vessels’?" How do you respond?

I would refer to Section 66632 of the McAteer-Petris Act which states "’fill’ means [among other things] structures…moored for extended periods, such as houseboats." This provision has been in the law since then-Assemblymember Petris authored it in 1969.

The public trust principle appears to have had its genesis in Roman law at the time of Emperor Justinian. The basic idea of the trust is that the rivers, ports, sea, shores of the sea, and the rights to fish and use those areas belong to the public, rather than to some person or entity, such as the emperor. The concept found its way into English common law which held that the ownership of these areas resided in the King of England and these public rights were inalienable and could not be transferred by the Crown into private ownership. This idea came to be known as "the public trust for commerce, navigation and fisheries" and found its way into American law, and ultimately into the laws of California.

The public trust is a creature primarily of the common law, which is made case-by-case by judges, so there is no zoning code or general statute to which one can resort for a list of permitted trust uses. However, the Legislature can articulate its expressions of public trust rights and has done so in Article X, Section 4 of the California Constitution, as well as in state laws like the McAteer-Petris Act.

The courts have established as a principle of American constitutional law that public rights in lands lying under the navigable waters of a state are an element of sovereignty which cannot be abdicated or alienated by the state except in very limited circumstances. California courts have applied this principle strictly and have interpreted the public trust beyond historical concerns for commerce, navigation and fishing to include the preservation of such lands in their natural state, in effect precluding all development. Generally speaking, the more private a use, the less likely a court would find it consistent with the public trust. As noted earlier, the courts have found that private housing is not a water-oriented use and have held that housing is not considered a trust use because it privatizes trust lands with no corresponding trust benefit such as promotion of maritime commerce or public use and enjoyment of shoreline areas. Therefore, it is quite difficult to allow property held in trust to be used for housing.

The State Lands Commission and the California Attorney General exercise oversight over public trust lands, including those granted to local governments by the Legislature, such as those in Richardson Bay, and will intervene if they believe trust lands are being used for purposes inconsistent with the trust or a trust grant.