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

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 $15,000 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.

State Sen. Jerry Hill, D-San Mateo, proposed legislation that would require Khosla to negotiate with the State Lands Commission to reinstate public access by Jan. 1, 2016. If no compromise can be met, the SLC could use its authority to create a right-of-way access road through condemnation. The bill, which easily passed the Senate, only narrowly made it through the Assembly with amendments due to lobbying efforts afforded by Khosla.

The bill was approved by the Legislature Aug. 21, however, it requires Gov. Jerry Brown’s signature by Tuesday.

Hill said it’s critical his bill and the Coastal Commission proceed as the Surfrider case could be tied up for years.

“That’s why we’re working closely with the governor’s office to win his support and come to some resolution. We need a solution that will give long-term access to that beach as it historically has been. That’s what the legislation will do and that’s why it’s still important. If [Khosla] will appeal this, I’m sure that fight will continue for many years.”

Massara agreed the public, activists and those who wish Martin’s Beach stay a public asset, must continue to advocate for open access.

“If past history is any indicator, Surfrider, in particular, and the public, in particular, and surfers and fishermen, are not going to give up on Martin’s Beach,” Massara said. “We’re going to continue to work until access to Martin’s Beach is confirmed in perpetuity.”

samantha@smdailyjournal.com

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