With apologies to Elton John, the beach is back.
Martin’s Beach, 10 miles south of Half Moon Bay, has gotten worldwide publicity due to the fight to return it to the public after a less-than-hospitable billionaire, Vinod Khosla, locked a gate across the only road leading to the beach.
In mid-September, a San Mateo County judge ruled that Khosla illegally gated off the road in violation of the Coastal Act that requires a permit anytime any activity affects public use of the beach.
Game over? Hardly.
First, it is anticipated that Khosla will appeal. Second, although ordered to open the gate, as of this writing he has thumbed his nose at the order and the gate remains closed.
Khosla, although testifying that he had no clue how or when the gate was locked, has since declared in several public pieces that he has just been protecting his property rights. That stance is being met with widespread skepticism.
Rather, some view his stance as good, old-fashioned elitism. Take a look at Stephen Colbert’s satire of Khosla online at: http://thecolbertreport.cc.com/videos/e72awe/solitocity.
Khosla has very carefully avoided addressing the fact that he has confiscated a public resource — the beach.
As mentioned, since his befuddled trial testimony his mantra is property rights. Khosla, however, doesn’t understand that all property rights exist courtesy of the government which, according to a dude named Lincoln is “of the people, by the people, for the people.”
So, since it is the people that confer any and all property rights to Khosla, why should it surprise him when the people think he is being just a tad ungrateful by taking their beach?
Why can’t Khosla just block access to the beach? That’s a rather complicated question, which will likely not be fully answered by the courts for several more years. Nevertheless, there is no question all beaches are public, at least below mean high tide and sometimes higher.
Even if Khosla wanted to buy the beach, it’s not for sale because a legal doctrine called the Public Trust Doctrine mandates that the government protect the beach and all navigable waters for all time for all people.
What do you do when you want your own private beach but a pesky law or two gets in your way? You buy all the land around it and then refuse to allow anyone to get to it.
In addition to facing a media onslaught, Khosla is facing opposition on at least four legal fronts.
The first is a lawsuit, presently on appeal, based on the California Constitution which provides that all people who own property fronting navigable waters must allow the public access to that water.
Second is the lawsuit just concluded which, as mentioned, is based upon the Coastal Act.
The Coastal Act was passed by the people in the 1970s as they became concerned about the development and limited access that was occurring all along the coast. A key provision of the act is to preserve public access to the beach.
Third, the Coastal Commission is gathering evidence to determine whether there is a prescriptive right of the people to use the road to access Martin’s Beach.
Under certain conditions, essentially long-established use, a right of continued use accrues.
Finally, Gov. Brown just signed into law a requirement that the State Lands Commission negotiate for access with Khosla, but if he refuses, the Commission is authorized to apply eminent domain to acquire an easement.
This fourth challenge is effectively an insurance policy should none of the previous three challenges stick as they wind their way through the courts.
Khosla, recognizing that this fourth threat was a challenge he couldn’t beat back with high-priced lawyers and endless litigation, hired lobbyists in a furious effort to defeat the bill, but to no avail.
We here in Santa Cruz, perhaps more than other communities, prize our beach access, but as one can tell from the outrage emanating from the entire country, it is a right prized everywhere.
Tom Dodd of Pescadero visited Martin’s Beach a few days ago. He wrote, “I took some young kids to Martin’s Beach for their first visit yesterday. The tide was out, the sand was untouched. It was more beautiful than I remembered. We walked down to peer through the sea arch and to the cliff edge at the north end where low tide would allow us out to the rock bench, but we held back as the sea lions were basking out there. A heron was working the tidal zone and pelicans worked the surf line. It’s a jewel of a beach still. It is wonderful that people struggled to keep it accessible.”
– Gary Redenbacher of Scotts Valley is an attorney in private practice. E-mail him at ga**@re*********.com
