Friday, July 22, 2016
Ruling on Beach Access Left Standing, but Depublished
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday depublished the First District Court of Appeal’s opinion holding that the public has no right of access to beachfront property that was a popular surfing and fishing spot before a wealthy venture capitalist bought it eight years ago and locked the public out.
Justices voted 6-1 to allow the ruling in Friends of Martin’s Beach v. Martin’s Beach 1 LLC, A142035 to stand, with only Justice Kathryn M. Werdegar voting to grant a citizen group’s petition for review. But no justice voted to allow the opinion to remain published.
The citizen’s group, Friends of Martin’s Beach, sued two limited liability companies controlled by Vinod Khosla, a venture capitalist and co-founder of Sun Microsystems. The Khosla entities purchased the land in 2008, and in 2010 gated Martin’s Beach Road, the only means of access to the popular surfing and fishing spot.
The high cost of maintenance and liability insurance was given as the reason for the denial of public access.
In ruling for the property owners, San Mateo Superior Court Judge Gerald Buchwald cited the Treaty of Guadalupe Hidalgo, which ended the Mexican War. The relevant provision of the treaty says the property rights of Mexican citizens within the territories ceded by Mexico to the United States “shall be inviolably respected.”
In concluding that the Alviso grant, of which Martin’s Beach was a part, is enforceable under the treaty, Buchwald ruled that Jose Maria Alviso’s failure or inability to complete the conveyance of his property to his brother, Jose Antonio Alviso, by the time the war broke out did not render the grant unenforceable under the treaty.
He also concluded that the state Constitution’s codification of the public trust doctrine does not alter the result because the Constitution cannot dissipate previously created property rights.
Justice Therese Stewart, writing for the appeals court, said Buchwald was correct. She cited Beard v. Federy (1865) 70 U.S. 478, holding that the land claim of a Catholic bishop based not on a writing or grant, but on long possession and canon law in force in Mexico prior to the war, was protected by an 1851 act of Congress that implements the treaty.
The ruling is not likely to be the final word on access to the beach, however.
In 2014, San Mateo Superior Court Barbara Mallach—ruling in a suit brought by the Surfrider Foundation, an amicus in Friends—ordered the Khosla entities “to cease preventing the public from accessing and using the water, beach, and coast at Martins Beach until resolution of the Defendants Coastal Development Permit application has been reached by the San Mateo County and/or the Coastal Commission.”
The judge said the gate “must be unlocked and open to the same extent that it was unlocked and open at the time Defendants purchased the property.” That ruling is on appeal, with former U.S. Solicitor General Paul Clement representing Khosla.
The Half Moon Bay Review reported last week that the gate is now open from 9 a.m. to 5 p.m., with parking available for $10 in a dirt lot on the property.
“Khosla has indicated that he sometimes can’t find a parking attendant to collect the fee,” the Review reported. “On those days the gate won’t be open, but visitors will still have the option to park to the side of the gate and walk the full length of the path to the beach for free.”
Rob Caughlan, the former president of the Surfrider Foundation, said the billionaire was “caving in a little bit to the judge’s wishes,” adding:
“The judge’s ruling was that Khosla had to keep the beach open as it always had been — except it used to be $2 to park instead of the $10 now. But I’m not complaining.”
Also, a 2014 law creates the possibility of the California Coastal Commission seizing an easement across the property by eminent domain if it is unable to negotiate a fair price for an easement from Khosla, who has reportedly asked for $30 million, nearly as much as he paid for the property.
Copyright 2016, Metropolitan News Company