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Santa Barbara Real Estate AlertóCoastal Access Issues Remain Hotly Contested

Oct 06, 2014
By Eric Berg

Berg Law Group has been representing property owners with pending matters before the California Coastal Commission for over a decade. More specifically, we have been at the forefront of several high profile and precedent setting coastal access issues with the State. While beaches are widely considered public, people don’t necessarily have a right to cross private property to get there. That is why a recent California State Court decision has gotten our attention.

In the decision, a California nonprofit foundation defeated a property owner’s efforts to restrict access to a popular Northern California beach.

A California court issued a ruling Sept. 24 that may restore public access to a beach that requires traveling across privately owned land. This is the latest chapter in an ongoing saga that has pitted local surfers who cross private property to access a popular surf spot against the individual who owns it.

Judge Barbara Mallach of San Mateo Superior Court ruled against venture capitalist Vinod Khosla, a co-founder of Sun Microsystems, who was sued by the nonprofit Surfrider Foundation after his property manager blocked the public from accessing a popular seaside spot known as Martins Beach.

At the center of the controversy is a metal gate that sits at the top of Martins Beach Road, an offshoot of the Pacific Coast Highway that is the only way to access Martins Beach from dry land. The road cuts across 53 acres that Khosla bought for $32.5 million in 2008. For two years, his property manager allowed the public to occasionally visit a stretch of sand where locals have surfed and picnicked for decades. But Khosla allowed the gate to be closed permanently in 2010 after his property manager received a letter from the county demanding that it stay open every day.

Surfrider claimed that under the 1976 Coastal Act, which gave the Coastal Commission jurisdiction over beachfront land, Khosla needed to apply for a development permit in order to close the gate. The Commission will often only grant development permits, typically to build a home or another structure, if the public gets an established right of way in return.

For decades,cars that wound their way down the road from Highway 1 paid a small fee to the landowners for parking. Khosla’s property manager testified at the trial that it was his decision to close the gate. He also testified that he hired security guards to “deter trespassers”. Last October, five suffers marched past security to assert their right to be on the beach. Known as the “Martin’s 5″ the surfers were arrested by the County Sheriff but the District Attorney declined to prosecute.

Khosla noted at trial that he is not the first owner of the property to limit access, pointing out that previous owners closed the gate during certain hours and seasons and even inconvenient days. In court, his property manager testified that he received a letter from the County demanding that the gates be open year round and parking be charged at the rate of $2, what beachgoers paid in 1973.

Ultimately, Judge Mallach found in favor of Surfrider, ruling that Khosal did not have the right to close the gate absent any application for a development permit. At trial, Surfrider also sought to have Judge Mallach fine Khosla for failing to apply for a permit but Mallach declined, saying that those who closed the gate had acted in good faith that they had the legal right to do so. Nonetheless, Surfrider has championed the decision as a “huge victory.”

Judge Mallach’s ruling is likely not the end of the story.

In response to the Court ruling, Gov. Jerry Brown signed a bill requiring the State Lands Commission to negotiate public access to the beach with Khosla. The new law will instruct the commission to talk to Khosla about buying a public right-of-way across his private land to the beach. If no deal is reached by Jan. 1, 2016, the commission may use its power of eminent domain to force a sale. The State Lands Commission oversees roughly 4 million acres of submerged land and tidelands, holding them in trust for the public. Its responsibilities include managing the state's offshore oil-drilling leases. The agency has never used its eminent domain authority in its 76-year history.

On a separate track, counsel for Khosla are considering an appeal of the Court decision.

What is certain is that private property owners with land under the jurisdiction of the Coastal Commission need to be extra vigilant and get expert advice about the unique and complex set of rules and restrictions placed upon them by this agency. These issues are not going to go away any time soon.

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