Caltrans-Authorized Leases of Areas Above and Below Highways

(Excerpt from California Streets & Highways Code Section 104.12, 104.16)

Additions and deletions have been noted in the text. Additions (with the exception of section numbers) are noted by bold-faced type, while asterisks (***) denote the deletion of punctuation, words, phrases, sentences, or paragraphs.

Article 3. The Department of Transportation

104.12. (a) The department may lease to public agencies or private entities for any term not to exceed 99 years the use of areas above or below state highways, subject to any reservations, restrictions, and conditions that it deems necessary to ensure adequate protection to the safety and the adequacy of highway facilities and to abutting or adjacent land uses. Authorized emergency vehicles, as defined in Section 165 of the Vehicle Code, which are on active duty and are not merely being stored, shall be given preference in the use of these areas, and no payment of consideration shall be required for this use of the areas by these vehicles. Prior to entering into any lease, the department shall determine that the proposed use is not in conflict with the zoning regulations of the local government concerned. The leases shall be made in accordance with procedures to be prescribed by the commission, except that, in the case of leases with private entities, the leases shall only be made after competitive bidding unless the commission finds, by unanimous vote, that in certain cases competitive bidding would not be in the best interests of the state. The possibilities of entering into the leases, and the consequent benefits to be derived therefrom, may be considered by the department in designing and constructing the highways.

Revenues from the leases shall be deposited in the State Highway Account. If leased property was provided to the department for state highway purposes through donation or at less than fair market value, the lease revenues shall be shared with the donor or seller if so provided by contract when the property was acquired. If the donor or seller was a local agency which no longer exists at the time the department enters into the lease, the local agency's share of lease revenues shall be paid to the county or counties within which the local agency was situated.

(b) Notwithstanding subdivision (a), in any case where sufficient land or airspace exists within the right-of-way of any highway, constructed in whole or in part with federal-aid highway funds, to accommodate needed passenger, commuter, or high-speed rail, magnetic levitation systems, and highway and nonhighway public mass transit facilities, the department may make the land or airspace available, with or without charge, to a public entity for those purposes, subject to any reservations, restrictions, or conditions that it determines necessary to ensure adequate protection to the safety and adequacy of highway facilities and to abutting or adjacent land uses.

(c) The department shall consider future lease potential of areas above or below state highway projects when planning new state highway projects. This consideration shall be accomplished by intra department consultation between offices concerned with project development and air space lease development.

(d) The department shall submit to the Legislature an annual report on the income and the inventory status of airspace leased above and below state highways.

(e) The department shall report to the Governor and the Legislature on January 1, 1991, and thereafter biennially, on the number and nature of contractual agreements entered into pursuant to Section 104.2 and pursuant to this section.

(Amended by Stats. 1971, Ch. 1053; Amended by Stats. 1980, Ch. 777; Amended by Stats. 1986, Ch. 500; Amended by Stats. 1988, Ch. 82; Amended by Stats. 1989, Ch. 1081; Amended by Stats. 1992, Ch. 513.)

104.16. (a) Any airspace under a freeway, or real property acquired for highway purposes, in the City and County of San Francisco, which is not excess property, may be leased by the department to the city and county or another political subdivision or a state agency for purposes of an emergency shelter or feeding program.

(b) The lease shall be one dollar ($1) per month. The lease amount may be paid in advance of the term covered in order to reduce the administrative costs associated with the payment of the monthly rental fee. The lease shall require the payment of an administrative fee not to exceed five hundred dollars ($500) per year, unless the department determines that a higher administrative fee is necessary, for the department's cost of administering the lease.

(c) The Legislature finds and declares that the lease of real property pursuant to this section serves a public purpose.

(Added by Stats. 1993, Ch. 750. Effective October 4, 1993.)