Bay Conservation and Development Commission Chief Will Travis Answers Critics
Published: September, 2001
Editor’s Note: our article about liveaborards, anchor-outs and houseboats excited many responses. Here is BCDC’s Executive Director Will Travis’ response to questions that were posed.
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.
You staff reports and recommendation on Richardson Bay enforcement state that long-term residential use conflicts with the goals of the public trust. Where are the goals of the public trust spelled out? How were they adopted, and what is the process for amending them?
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.
How was the limit of 10% live-aboards per marina arrived at, and how can it have the force of law?
Sections 66632(f) and 66651(d) of the McAteer-Petris Act require the Commission to issue permits for activities that are consistent with the provisions of the Act and the San Francisco Bay Plan. Section 66651(d) also allows the Commission to incorporate special area plans, such as the one for Richardson Bay, into the Bay Plan. Section 66652 allows the Commission to amend the Bay Plan. Thus, the Bay Plan and Richardson Bay Special Area Plan policies have the full force and effect of law.
The Bay Plan policy limiting live-aboard berths to ten percent of the total berths in a marina was adopted after a long public debate and much input from the boating and marina community in the mid 1980s. The Commission concluded that having residents living in a recreational marina would provide additional security for recreational boating, a primary trust use. Therefore, the Commission decided a limited amount of residential use on live-aboard boats could be considered ancillary to a water-oriented use and consistent with the public trust. The Commission decided that the best way to define "ancillary" administratively was to establish a numerical standard for the amount of residential use.
To establish this standard, the Commission’s staff surveyed existing marinas and yacht harbors in the Bay and found that on average less than five percent of the berths in the marinas were used by live-aboard boats. To ensure that no existing live-aboards would have to be evicted, the Commission chose a percentage that was double the existing figure, which was still a percentage that could be reasonably supported as being truly ancillary. The Commission also indicated that it would allow more than the ten percent in certain cases, particularly when the live-aboard boats were existing as of the time the policy was adopted, so as to avoid any existing live-aboard residents being evicted.
The Commission also adopted a regulation (Section 10128) defining a live-aboard boat as "a boat that is not a transient boat, that is capable of being used for active self-propelled navigation, and that is occupied as a residence as that term is defined in California Government Code Section 244." Government Code Section 244 establishes seven criteria for determining place of residence. One of the criteria provides that a person can have only one place of residence at any one time. So if someone lives on a boat during the summer, but has another official residence, the boat would not be considered by BCDC to be a live-aboard boat. Transient boats, sometimes called cruisers which are used as permanent residences by people on extended sailing excursions, are also considered by BCDC to be a type of recreational boat. The vessels covered by the BCDC definition of "live-aboard boat" are those that used as full-time permanent residences, so even with ten percent restriction, harbormasters can allow additional residents if they are on transient boats or are not permanently living on their vessels.
Is the anchor-out abatement strategy proposed by BCDC staff limited to Richardson Bay, or does it apply to the entire BCDC jurisdiction?
The Richardson Bay enforcement strategy which the Commission considered, but did not adopt on August 2, 2001, was limited to Richardson Bay.
Are you aware of the distrust that exists among the floating home, live-aboard and anchor-out communities toward the BCDC? Would you care to comment on it?
Yes, I am aware of it and I deeply regret it. I think the distrust also extends beyond the communities you have mentioned to include the general recreational boating community. This is truly unfortunate because I believe that boaters who love sailing on the Bay, and people who enjoy living along the shoreline of the Bay should find a natural ally in a government agency charged with protecting the Bay.
I believe the distrust exists in large part because boaters find it so difficult to accept the provision of law that stipulates that under certain circumstances, a boat can become Bay fill. Since this provision seems to fly in the face of common sense, boaters fear if BCDC thinks some boats are Bay fill, BCDC can declare all boats to be Bay fill and ban them all. I too would distrust a government agency with this kind of sweeping power to alter reality. Obviously, BCDC doesn’t have this power. But there is no denying that there is a great deal of confusion and misunderstanding about BCDC policies on boating.
There are also some really creative and frightening urban legends about BCDC’s alleged terrible treatment of boaters even though the Commission has always supported boating in San Francisco Bay. BCDC has not denied an application for a recreational marina in the past quarter century. The marina permits BCDC has approved have resulted in thousands of berths being built which have provided access to the Bay for countless boaters. The Commission has also fostered the development of small boat, kayak, and sailboard facilities in marinas and other public access and recreation areas. And the Commission played a leadership role in streamlining the process to get permits for dredging and provided a special provision so small dredgers, like recreational marinas, could continue to dispose of dredged material in the Bay.
The focus of the Commission’s enforcement actions against boats has always been on vessels that are polluting the Bay, posing navigational hazards or trespassing on someone else’s property. Often these vessels are derelict and abandoned. Sometimes they are anchor-out boats, which often have no way of getting rid of waste other than to dump it overboard, create hazards to other boaters, and are either trespassing on private property or using public lands for private residential use in violation of state law. BCDC’s intention is not to evict anchor-out residents and make them homeless. The Commission’s objective has always been to have anchor-out vessels moved into marinas that can provide the boat dwellers with sewer connections, fresh water, electricity, fire protection and other amenities. Typically, when the Commission takes enforcement action against a vessel, it is as part of a collaborative effort with local government to resolve a long-standing problem caused by an unsewered houseboat, a grounded or sunken boat or an unauthorized anchor-out boat. In addition to BCDC’s partnership with the Richardson Bay Regional Agency, the Commission has collaborated with the City of Redwood City and San Mateo County in the Operation Aqua Terra efforts in Redwood Creek, with the City of San Jose and a host of other agencies in Alviso Slough, and with various other local agencies working to get rid of sunken boats throughout the Bay.
Despite this limited focus of BCDC’s vessel enforcement program, some people seem to believe that BCDC wants get rid of anybody who chooses to live on a boat. Perhaps this belief is fueled by the fact that BCDC is currently involved in litigation with the Waldo Point Harbor houseboat marina in Richardson Bay over the marina’s expired permit. But BCDC’s objective in this lawsuit is not to get rid of the houseboats. Rather the Commission is trying to stimulate the marina to apply for a new permit so the houseboat residents who are renting berths will have the security of being in a legal marina.
Moreover, the BCDC restrictions on live-aboard boats in recreational marinas apply only to people who use their boats as their primary residence. If someone lives on a boat during the summer, but has another official residence, the boat would not be considered by BCDC to be a live-aboard boat. It would be a recreational boat. Therefore, BCDC’s restrictions do not impact sailors who live on their recreational boats, whether overnight, for a weekend, a month’s vacation or during a round-the-world cruise. Transient boats or cruisers which are used as permanent residences by people on extended sailing excursions, are also considered by BCDC to be a type of recreational boat. Even with BCDC’s restrictions, many harbormasters allow additional residents if they are on transient boats or are not permanently living on their vessels.
So under BCDC’s policies, most people who choose to live on their boats can do so without any fear of running afoul of BCDC. The Commission supports all forms of boating on the Bay and focuses its enforcement efforts on vessels that cause pollution, are navigational hazards or are trespassing.
In an attempt to overcome the confusion about BCDC’s boating policies, over the next few months our staff is planning to meet with anchor-out residents, live-aboard boaters, floating home dwellers, recreational boaters and anyone else who is interested in the Commission’s policies on boating. The purpose of meeting is to get a better understanding of all perspectives and to determine how boaters and BCDC can work together to protect the Bay we all love.
