Judge rules for beach access : Surfrider prevails in Martin’s Beach case • Property owner deemed to have violated Coastal Act

September 25, 2014
San Mateo Daily Journal

The environmental activist group Surfrider Foundation succeeded Wednesday in its hotly contested case to compel the billionaire owner of Martin’s Beach to reopen his property to the public until the California Coastal Commission permits otherwise.

San Mateo County Superior Court Judge Barbara Mallach handed down her tentative ruling in the case siding with Surfrider’s assertions that closing the beach to the public altered the land’s use and violated the California Coastal Act by not garnering mandated permits. However, Mallach declined to issue penalties against the owner that could have amounted to millions.

Venture capitalist Vinod Khosla bought Martin’s Beach, previously open to the public for more than 100 years, in 2008 for $32.5 million then closed the only access road to the public less than two years later.

Attorneys for Surfrider were elated at the outcome of the bench trial that began May 8, but remain on guard as they anticipate Khosla will appeal Mallach’s decision all the way to the U.S. Supreme Court.

“We’re thrilled. We think this is David beating Goliath and it goes to show it doesn’t matter how much money you have to throw at a problem, you’re going to be held accountable to the law,” said Eric Buescher, an attorney representing Surfrider with the firm Cotchett, Pitre & McCarthy.

Khosla’s attorney Jeffrey Essner did not return a call for comment, but argued in court his client was unfairly scrutinized because of his wealth and said forcing him to reopen Martin’s Beach violated his private property rights. Essner also contended Khosla maintained similar access to that of the previous owners who would close the beach at their leisure during inclement weather.

“The county, the Coastal Commission and now Surfrider by this action, and [Surfrider attorney] Mr. Cotchett’s demands for penalties, are forcing my client to accede his constitutional rights by extortion and give up a protected and cherished (private property) right,” Essner said during closing arguments July 16. “This is forbidden by the Supreme Court and the United States Constitution.”

Both parties have 15 days to object to Mallach’s decision before she issues a final decision, Buescher said. He added Surfrider was not yet sure if it would object to her decision not to impose fines up to $1,500 per day for violations.

Days in court

The trial, which included six court days, a site visit to Martin’s Beach, testimony from 17 witnesses and 53 exhibits admitted into evidence, hinged on whether forbidding the public from entering the property and removing signs altered the land’s use.

“Defendants’ conduct in changing the public’s access to and use of the water, beach and coast at Martin’s Beach, specifically by permanently closing and locking a gate to the public across Martins Beach Road, adding signs to the gate, changing the messages on the billboard on the property and hiring security guards to deter the public from crossing or using the property to access the water, beach and coast at Martin’s Beach without a Coastal Development Permit(s) constitutes a violation of the California Coastal Act,” Mallach wrote in her tentative statement of decision.

Surfrider attorney Mark Massara said they were thrilled Mallach agreed across the board with their legal theories and analysis. Yet the law provides those who violate the Coastal Act should be penalized, Massara said.

“He knew (he was in violation) and that’s why all along we have argued that this is a case, particularly because he’s a billionaire, that not only justifies but requires imposition of the highest possible penalties,” Massara said.

Continued efforts

Massara said it was critical Surfrider take on the civil lawsuit to ensure Martin’s Beach wouldn’t be a lasting detriment to the public’s right to access other coastal resources.

“His underlying theory is just because it’s private property he can close off and eliminate permanent, historical beach access. It was something that he and other property owners up and down the coast would have been encouraged to pursue and it was imperative that we re-establish the law that a change in use of the coast requires a permit,” Massara said.

The fight to reopen the crescent shape of coast just south of Half Moon Bay has been touted as a critical reaffirmation of the public’s right to access the California coastline. Closure of the beach incited two civil lawsuits, legislation currently pending the governor’s signature and the Coastal Commission hosting an evidentiary survey to establish prescriptive rights... (To read the entire article, please click HERE)