Coastal Commission orders Martins Beach open its gates

Commission staff sent a letter Sept. 14 to attorneys representing property owner Vinod Khosla last week advising the state agency finally intends to take enforcement actions should he fail to abide by state laws. The cease and desist order as well as possible administrative penalties must ultimately be approved by Coastal Commission. But with years of alleged violations and potential daily penalties, the venture capitalist could face $20 million in fines should negotiations fail and the commission opt to proceed.

The letter from Coastal Commission Executive Director John Ainsworth stresses an interest in negotiating the terms of public access. The alternative is for Khosla to reopen the property daily to the public while removing the no trespassing signs until receiving permits to do otherwise.

“The ongoing closure of a locked gate across the only access road to the beach and the ongoing retention of various intimidating signs prohibiting public access certainly are activities that diminish the public’s ability to access and use Martins Beach,” Ainsworth wrote before going on to warn the consequences could include “penalties will be assessed against you and a lien on the property will be authorized if any penalty is not paid.”

In its notice, the commission bolsters its arguments with a recent state appellate court ruling upholding the nonprofit Surfrider Foundation’s lawsuit contending Khosla violated the Coastal Act. The state appellate and local superior courts agreed changing the public’s use of the water constitutes development under the Coastal Act. He was also found to have engaged in unpermitted development such as painting over welcome signs and putting up no trespassing signs.

Attorney Joe Cotchett, whose firm represents Surfrider, emphasized what’s at risk and said it’s about time the Coastal Commission enforces the law.

“This is about the whole coast of California. They’ve been fighting this fight down in Malibu, down in Orange County, down in San Diego County. It’s a bunch of wealthy people that want to buy up the beach and keep it from the public,” Cotchett said. “This is not a complicated matter. It is lifting a gate. It’s ‘tear down that wall Mr. Gorbachev.’”

Khosla and his attorneys paint a very different picture, countering the billionaire co-founder of Sun Microsystems is being targeted because of his wealth. Instead, they say the case is about upholding vested private property rights.

This week, Khosla filed a request to state Supreme Court asking it to review the Surfrider case. He has also filed a federal lawsuit against the Coastal Commission, the State Lands Commission and San Mateo County for violating his constitutional property rights. While the government agencies sought to dismiss that case, it’s believed Khosla aims to take the matter all the way to the U.S. Supreme Court.

Gov. Jerry Brown is now being asked to sign legislation by state Sen. Jerry Hill, D-San Mateo, which would enable the state to raise funds and purchase access through eminent domain. The State Lands Commission spent two years attempting to negotiate with Khosla’s attorneys for a 6.4-acre easement winding along an existing road and down to the beach. An appraisal estimated it was worth $360,000, to which Khosla’s attorney countered it was worth $30 million.

With the Coastal Commission initiating enforcement efforts, officials are emphasizing they would prefer an amicable resolution.

“We were surprised and disappointed they didn’t respond to the court decision by opening the gates to Martins Beach,” Lisa Haage, the commission’s chief of enforcement said in an email. “We want to encourage and work with them to do so as soon as possible and this is a step to achieve that. We would hope, however, they would do so voluntarily.”

But negotiations haven’t borne fruit in the past, prompting the numerous lawsuits and state legislation aimed at purchasing an easement.

The Coastal Commission only recently received authority to levy administrative penalties, following Brown’s approval of a 2014 law. Now, it could seek up to $11,250 for each violation every day for up to five years. On top of the beach closure violations, the letter notes Khosla received an emergency permit to install revetment to protect his property on the condition he later apply for a coastal development permit — which was never submitted.

Khosla purchased the 89-acre property for $32 million in 2008 before closing the gates a few years later to a site that was once open to the public for nearly a century with former owners charging a parking fee.

Khosla’s attorneys contend their client is a man of principle unwilling to be coerced out of his vested property rights. Attorney Dori Yob, in a blog post she directed the Daily Journal to as a response to a request for comment, said “state bills by pandering politicians” and “media vilification campaigns” will not resolve a dispute about constitutional property rights.

“Only the courts can decide what the proper interpretation of the law here is and we intend to let that process determine what is right and what is wrong,” Yob wrote. Khosla “is very aware of the larger community’s interest and it is unfortunate that the legal process is necessary to defend fundamental property rights rather than a conversation with members of the public community about appropriate invitational use.”

But with the vast amount of public interest in the property and the risk of privatization along of the California coastline, Cotchett said he believes there’s only one way to describe Khosla’s recent actions.

“Pure arrogance,” Cotchett said.

Comparing it to driving without a license, Cotchett said just because someone doesn’t like the law doesn’t mean they don’t have to abide by it. Cotchett said he plans to head back to San Mateo County Superior Court as soon as possible to ask for further penalties for the owner refusing to heed the judge’s ruling. 

“I’m actually surprised at the tenor of the [Coastal Commission’s] letter after all he’s put this California Coastal Commission through, after the way his lawyers have snubbed their noses at court orders,” Cotchett said. “It’s not just the Coastal Commission that has jurisdiction at this point. At this point, he is waiving if you will, at a court order.”

samantha@smdailyjournal.com

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Twitter: @samantha_weigel