A land exchange between the State Lands Commission and the City of Long Beach to accommodate a retail development project has been thrown out by the Third District Court of Appeal. The court ruled that the state agency and the city violated the state law that permits the swapping of land covered by the tidelands public trust doctrine.

The precise impact of the ruling is unclear, as the three acres in question have already been developed by Developers Diversified Realty, which appealed the decision to the state Supreme Court in June. The state high court has not decided whether to accept the case. A Developers Diversified attorney told the Long Beach Press Telegram that the decision means little because the land entitlements remain in place. Project opponents, however, have hinted that they want a movie theater and arcade torn down.

The land at issue is part of phase two of the Queensway Bay Development Plan, a long-term project to redevelop Long Beach's waterfront (see CP&DR Places, March 2001;Deals, August 1998). Phase two involves extensive retail development and a pedestrian bridge over busy Shoreline Drive. At issue in the litigation is three acres of tidelands that the city filled in the 1950s. The land had been transferred from the state to the city in 1911 and is subject to the public trust doctrine that protects public use of waterways. Nevertheless, four years ago, the city approved a multi-screen cinema, an arcade and other retail uses on the disputed property.

Opponents of the project, called Pike at Rainbow Harbor, said some of the proposed land uses conflicted with the public trust doctrine. Members of the State Lands Commission, which oversees activities of tidelands trustees such as Long Beach, suggested that they agreed with opponents, so the Commission and the city put together a parcel exchange. Essentially, the Commission removed the three acres from the public trust and placed 10 acres along the Los Angeles River, near the 710 freeway's downtown Long Beach ramps, into the public trust.

Opponents then honed in on the land swap, arguing that the city was sacrificing land that could be used for a public park, and was getting nothing in return because the 10 acres along the river were already designated parkland. So opponents, led by the group California Earth Corps, sued the city, the Commission and the developer, arguing that the trade violated state law and the California constitution, and had been improperly exempted from the California Environmental Quality Act.

Sacramento County Superior Court Judge Gail Ohanesian ruled against the environmentalists. On appeal, a three-judge panel of the Third District overruled the lower court.

The case turned on interpretation of Public Resources Code § 6307, which Long Beach and the Commission used to carry out the land exchange. As Third District Justice Vance Raye summarized in his opinion, “Section 6307 permits a land exchange only for the purposes of the improvement of navigation, aiding in reclamation, flood control protection, or of enhancing the configuration of the shoreline for the improvement of the water and upland on navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets or straights.”

The trial court found that the exchange “will allow improvements of the upland which will make greater use of the Queensway Bay parcels, will attract additional visitors to the shoreline and will improve the access to the shoreline and water.” Judge Ohanesian also noted that the parcels in dispute were paved over decades earlier and lie 550 feet from the harbor.

But the Third District ruled that Ohanesian and the public agencies got it wrong. “Parking lot or not, the exchange of the Queensway Bay parcels must conform to the requirements of § 6307,” Raye wrote.

“The Commission argues the Queensway Bay parcels have been virtually unused for over 20 years, providing no significant trust benefit to the public. To fill this void, the development plan 'is transforming the city's filled tidelands adjacent to its downtown area into an area that will attract people to the shoreline and provide for public use of this previously unused or minimally used area.' However, § 6307 does not permit exchanges to encourage or increase public use, nor does § 6307 exempt minimally used public trust land from its requirements.”

The city and the developer contended the trade would “enhance the configuration of the shorelines,” as the statute requires. But the court said there was no proof. “[A] rearrangement of two parcels of land does not denote an enhancement of the configuration of the shoreline. The river parcels are not part of the shoreline, and the removal of the Queensway Bay parcels does not, in itself, enhance the shoreline,” Raye wrote.

“Read in context, the goal of enhancing the shoreline requires a change of the physical geography of the shoreline or the construction of an improvement to the shoreline. The exchange at issue does neither,” Raye continued.

In a concurring opinion, Justice Coleman Blease wrote that the exchange was not permissible under § 6307 because the Queensway Bay parcels were not on navigable waters. “For that reason, the proposed exchange cannot 'enhance the configuration of the shoreline.' There is no shoreline to be reconfigured,” Blease wrote.

The Case:
California Earth Corps v. California State Lands Commission, No. 041603, 05 C.D.O.S. 3404, 2005 DJDAR 4590. Filed April 21, 2005.
The Lawyers:
For California Earth Corps: Jan Chatten-Brown, (310) 314-8040.
For the State Lands Commission, Alan Hager, deputy attorney general, (213) 897-2701.
For the City of Long Beach: Robert Bower, Rutan & Tucker, (714) 641-5100.
For Developers Diversified Reality: Richard Dongell, Radcliff, Dongell, Lawrence, (213) 614-1990.