For the first time since Martin’s Beach was closed to the public, the California Coastal Commission announced it’s building a case to reopen the beach by requesting the public fill out a survey describing their history with the contested strip of coast.
In a case that spurred several lawsuits and pending legislation to reinstate public access to a beach that was accessible to the public for nearly 100 years, the commission’s survey indicates it may be gearing up for a legal battle.
Billionaire venture capitalist Vinod Khosla bought Martin’s Beach, just south of Half Moon Bay, in 2008 for $32.5 million and shortly thereafter closed the only access road to the public.
The case became controversial by pitting the rights of private property owners against Californians’ long-established right to access 840 miles of coastline.
Khosla argues the Coastal Commission and groups like the Surfrider Foundation, which filed a lawsuit alleging he violated the state’s Coastal Act by failing to garner mandated permits, are using the media and courts to extort him into giving up his constitutionally protected private property rights.
With accusations of unwillingness to communicate by the Coastal Commission and Khosla floating in media opinion pieces, it appears the case is far from being resolved.
The commission seeks to use the legal tactic of prescriptive rights by establishing through public testimony provided in its survey that the private property was utilized as though it were public land for at least five years, said Sarah Christie, legislative director for the Coastal Commission.
“[The survey is] a critical component of legal efforts to prove that public access was historically available there. In terms of establishing that as a fact in a court of law, we need a more formal methodology for proving that. And that’s what the prescriptive rights surveys are. It’s basically a legal underpinning for any future action the commission might take,” Christie said.
Khosla argues the property was never freely open to the public as the previous owners would charge an entry fee but, per the state’s civil procedural code, prescriptive rights can be used to establish a right to public access, Christie said.
The commission prefers to negotiate access and avoid the need for a drawn-out legal battle, yet this survey could serve as crucial evidence if a compromise cannot be met, Christie said.
“We’ve gotten a really strong response from people who are giving far more detail and context than we could ever have anticipated. Some of the accounts are just really touching and personal and beautiful actually. If you read them together, they go as far back as the [1920s]. People writing them are in their 70s, 80s and 90s,” Christie said.
In the last two weeks, about 70 individuals have described their time at Martin’s Beach, however, more input is needed, Christie said.
“There’s one person who sent photocopied pages in her diary, a menu of picnics she prepared. People [had] their first dates with their spouses there and scattered their grandparents’ ashes in the surf. People have been fishing there and surfing there and celebrated high points in their lives there,” Christie said. “People have really beautiful memories of every decade for the last 100 years; really, it’s quite a little historical narrative of that stretch of California.”
The 27-question survey asks for a range of information including when people would pay a fee and whether it was for parking or entry. The survey also seeks to establish a timeline of when the gate to Martin’s Beach road, the only access route to the beach, was closed or changed.
In their defense against Surfrider’s claim that he failed to earn permits before closing the gate, Khosla’s attorneys argue the previous property owners would close the beach at their leisure. They also argue the former owners sold Martin’s Beach because it was no longer popular enough to make money to cover costs and forcing Khosla to reopen the beach would be equivalent to forcing him to operate a business at a loss.
“The strategy (of the commission and Surfrider) seems to not be of ‘public service by a public agency’ but we will coerce with bureaucratic delays to pressure property owners to give up their rights,” according to a press release issued by Khosla’s attorneys July 16.
Khosla’s attorney Jeffrey Essner did not return a request for comment.
If the commission votes to approve an enforcement order and it’s upheld in court, Khosla could face nearly $20 million in fines. Christie said the commission has the potential to avoid an enforcement action if legislation authored by state Sen. Jerry Hill, D-San Mateo, regarding the property is enacted.
Hill seeks to require that Khosla negotiate with the State Lands Commission to reopen the beach. If a compromise cannot be met by Jan. 1, 2016, the state could use condemnation for a right-of-way easement to create an access road off Highway 1.
Senate Bill 968 will be heard Thursday in the Assembly Appropriations Committee and needs nine out of 17 votes to pass before heading to the Assembly floor, according to Hill’s office.
Hill said he tried to negotiate with Khosla via a 30- or 45-minute phone call, during which Khosla said he was unsure what his future plans are for the beach. Hill also said he was unwilling to agree to open the beach in perpetuity. In fairness, Hill said Khosla indicated he may be willing to temporarily open the beach, but wants his property rights recognized so he could do so at his will.
Rusty Areias, a former assemblyman and coastal commissioner who was allegedly hired by Khosla, has been lobbying against SB 968 in Sacramento.
“Mr. Areias is lobbying it hard and trying to kill it at every opportunity … I think Khosla has the wealth to tie this up for years in court and I think he thinks if he keeps fighting it he’ll get the results he wants,” Hill said. “I think he feels he’s above it and that’s what my legislation will do, it’s to sit down and have him try to negotiate for a year. That’s all it does.”
San Mateo County Supervisor Carole Groom, who serves on the Coastal Commission, said this survey is the first time the state agency has publicly taken action on the matter. Groom said she wouldn’t provide an opinion of the case as she could eventually be voting on it, but officials need to proceed carefully.
“For all of us who live in San Mateo County, Martin’s Beach is a very special place,” Groom said. “I think that we, all the prospective decision-making bodies, have got to get this right.”
Christie agreed the commission continues to prefer to handle the matter amicably and negotiate reopening the beach to the public. However, it must prepare for potential litigation and requests those familiar with Martin’s Beach assist.
“The public’s the only one that can do it. We can’t write the words for them. We’re totally dependent on the public’s response to this in order to make this case,” Christie said. “To try and find a mutually accepted solution to restoring public access, that’s still our preferred option. But if we go to court on this we’re going to be there for a very long time. We’re still absolutely open to having those conversations but, in the meantime, we need to start preparing for other scenarios. We can’t wait any longer.”
To participate in the Coastal Commission Prescriptive Rights Survey visit www.coastal.ca.gov.
(650) 344-5200 ext. 106