Awaiting Martin’s Beach decision: Attorneys give closing arguments, question constitutional property rights

Attorneys Mark Massara, left, Joe Cotchett, Eric Buescher and surfer Rob Caughlan gather for a press conference after Cotchett and Buescher presented closing arguments in the Martin’s Beach case at the County Center.

Attorneys for a wealthy property owner who contend it’s his right to gate off Martin’s Beach and environmental activists seeking public access to the coast presented closing arguments in a civil case to be decided by a San Mateo County judge within two months, with some predicting the issue could make its way to the U.S. Supreme Court.

The environmental activist group Surfrider Foundation filed the civil lawsuit in March 2013 in an attempt to reopen the secluded sliver of coast just south of Half Moon Bay to the public. The case now rests in the hands of Superior Court Judge Barbara Mallach who is anticipated to rule in the next 30 to 60 days.

Venture capitalist Vinod Khosla bought Martin’s Beach, previously open to the public for more than 100 years, in 2008 for $37.5 million and quickly closed the only access road to the public. The property became controversial as the rights of private property owners were pitted against California’s access to more than 1,000 miles of coastline.

Attorney Joe Cotchett, who represents Surfrider in its lawsuit, said although Wednesday may be the last he argues the case in the San Mateo County Superior Court, he doubts the results will end the saga to reopen the beach. The case, Cotchett said, has turned into a seminal one for private property rights and could have a broader effect on other disputes.

“I think this is the case Mr. Khosla wants to take to the Supreme Court,” Cotchett said. “[It’s a] philosophical divide between those who have and those who have not. … This case is not stopping here.”

Surfrider claims the billionaire property owner violated the California Coastal Act when he changed its land use by painting over signs and closing the only access road to the secluded beach before garnering mandated permits from the California Coastal Commission.

The respondent contends private property rights are historically protected under the Constitution and ceasing voluntary public access on private property is not considered development under the Coastal Act.

Jeffrey Essner, the attorney representing Khosla’s Martin’s Beach LLCs, said the California and United States supreme courts uphold the rights of individuals to control access to their property.

“The county, the Coastal Commission and now Surfrider by this action, and Mr. Cotchett’s demand 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. “This is forbidden by the Supreme Court and the United States Constitution.”

Surfrider maintains arguments over the constitutionality of the California Coastal Act and its assurance to maintain public access to coastal resources should be discussed in front the Coastal Commission and insist Khosla abide by the law.

Prayer for relief

On behalf of the Coastal Commission, the court can assess fines between $1,000 and $1,500 for each day someone violates the California Coastal Act. Cotchett urged fines be assessed beginning October 2010 and be paid into a special fund through the California Coastal Conservancy, which is overseen by the Legislature and can only be spent on coastal protection activities.

Cotchett said the court should penalize Khosla as he knowingly violated the Coastal Act and to ensure he follows through with applying for permits, Cotchett said.

“Somewhere, somehow, justice has to reign down on this individual, Mr. Khosla, and force him to go to the Coastal Commission and unlock that gate,” Cotchett said.

Essner argued groups like Surfrider and the Friends of Martin’s Beach, which filed a lawsuit alleging Khosla violated the state’s Constitution and was shot down last year, equate to coercion.

“The threat of an activist organization to impose tens of millions of dollars for exercising his constitutional rights is the type of extortion … the Supreme Court explicitly found unconstitutional,” Essner said.

Wealth and status

Both sides argue Khosla’s wealth has been used as a pawn in the case with Surfrider alleging the billionaire believes he is above the law and Essner contending the previous owners, the Deeney family, was never questioned over their disclosure of when to open or close the beach.

Fluid throughout the case were tales of Martin’s Beach historically being a prized surf break, a place for families to picnic and a unique gem along the coast. However, Essner argued that era has passed.

“My client understands that generations of families visited Martin’s Beach. The cherished memories they made there. But the fact is those treasured spots in the sand have long since washed away,” Essner said. “Martin’s Beach was no longer the place it was in the past and my client cannot be forced to recreate history and give up his constitutional rights.”

Surprisingly, Essner stated Khosla originally planned to keep Martin’s Beach open in a manner similar to the Deeney family, but the county sent a letter questioning why he closed it during the winter and instructing him to operate the beach as though it were a business.

Essner argued operating Martin’s Beach as it was previously would require bathroom upgrades, picnic tables, trash cans and would ultimately force Khosla to operate a business at a loss.

Surfrider has argued Khosla was well aware of the access conditions prior to buying the property and is required by law to receive approval from the Coastal Commission if he wishes to close Martin’s Beach to the public.

Other efforts

Khosla had not spoken publicly about owning Martin’s Beach until subpoenaed to testify in the case. Surfrider and state Sen. Jerry Hill, D-San Mateo, have said Khosla has dismissed all opportunities for an amenable compromise.

Concurrent with the Surfrider case, Hill proposed Senate Bill 968, which would require Khosla to negotiate with the State Lands Commission to reopen the beach. If a compromise cannot be met by Jan. 1, 2016, Khosla could face the state using condemnation for a right-of-way easement to create an access road off Highway 1.

Hill’s legislation easily passed the Senate and was amended in the Assembly to encourage, but not require the State Lands Commission to use its already allotted authority to use eminent domain. The bill has been referred to the Committee on Appropriations where it must be heard by August. Should it pass, the bill will go to the Assembly floor where it will need at least 41 votes to pass.

Eric Buescher, an attorney representing Surfrider, maintains the case isn’t about the constitutionality of the Coastal Act and Martin’s Beach has been needlessly closed for too long and the public need not wait any longer.

“The question here is not about the defendants private property rights. The question here is about whether the defendant violated the Coastal Act. … Disagreeing with the Coastal Act is not a valid reason to refuse to comply with it,” Buescher said. “The time for [Khosla] to be held liable and accountable for [his] contract is now, so the 6 million people who live within an hour’s drive of the San Mateo County coast are not deprived of its resources.”

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