Billionaire makes final push to bar public access to Martin's Beach

Billionaire makes final push to bar public access to Martin's Beach
Mike Wallace of El Granada walks past the gate on the now private road that offered the public their only way to access Martin's Beach until 2010, when the land's new owner locked the gate. (Michael Short, Special to the Chronicle)

A San Mateo County Superior Court judge heard closing arguments Wednesday in the latest battle over access through private land to a beloved beach — one that could lead to the U.S. Supreme Court.

Among the questions raised that are likely to be further contested: whether a private property owner can be compelled to provide public beach access just because his predecessor did, and whether the California Coastal Commission is within constitutional bounds when it negotiates for such access in exchange for coastal development permits.


The case involves Martin's Beach, south of Half Moon Bay, which for decades was visited by thousands of locals who picnicked, surfed and fished for smelt in its protective cove.

The former owners granted beachgoers their only way to the beach by land — via a dirt road — and charged a small fee for parking. But two years after billionaire venture capitalist Vinod Khosla acquired the parcels in 2008 his manager locked the gate, painted over a sign that had beckoned Highway 1 travelers and posted security guards to ward off trespassers.

He did so despite being told by county planning officials, the Coastal Commission and a different San Mateo County Superior Court in 2009 that he needed to seek a coastal development permit if any of his actions were to change the "intensity of use" of the water or access to it.

The judge in that proceeding also told him he could not challenge the access issue in court until he had sought the permit.

The nonprofit Surfrider Foundation sued last year on narrow grounds, contending that Khosla intentionally flouted that administrative process. The foundation is asking that the co-founder of Sun Microsystems known for his alternative energy investments be fined the maximum of $15,000 a day dating back to the October 2010 gate closure — an amount that would total about $20 million.

"They knew what they were required to do," attorney Eric Buescher, representing Surfrider, told Judge Barbara J. Mallach. "They intentionally declined."

Added attorney Joe Cotchett, while pressing for penalties: "Somehow, somewhere, justice has to rain down on this individual, Mr. Khosla, and force him to go to the Coastal Commission and unlock that gate."

Khosla's attorney, Jeffrey Essner, argued that his client did not engage in "development" that necessitated a permit, despite the opinions of local and state officials to the contrary.

The gate predates the Coastal Act of 1976, he said, and was locked and unlocked at the previous owner's discretion. Nothing in the law points to the existence — or elimination — of signage or guards as development, he added.

Essner also contended that Khosla's private property rights under the 5th Amendment are being violated. Essner called the Coastal Commission "a runaway regulatory body" that engages in "coercion and extortion."

The Deeney family, which had owned the land for decades before selling the property to Khosla, had watched visitor volume decline and the beach erode, and no longer wanted to maintain restrooms and a parking lot at the beach, Essner said, maintaining that Khosla should not be forced to run an unprofitable business.

"Operate a business at a loss or apply for a permit you don't want. Those were his two choices," he said of his client.

Essner also leaned heavily on a ruling issued by yet another San Mateo County Superior Court judge last fall in response to a lawsuit that contended Khosla was violating the public's constitutional right to access the coast. Judge Gerald G. Buchwald's ruling, now under appeal, said there was no right of public access because the property is traceable back to a Spanish land grant and is held by a U.S. Land Patent.

However, Buchwald specifically noted that his decision "does not disturb, in any way … the authority of the California Coastal Commission to make real estate development permits subject to some public access."


Regardless, Surfrider's attorneys stressed, Khosla must seek a permit before he can contest its requirements as an unconstitutional taking. And he hasn't done so.

Mallach, who in May heard six days of testimony in the non-jury trial, has 90 days to rule.

In a lengthy statement released Wednesday afternoon, Khosla said that "mob behavior and bureaucratic overreach" were clouding the balance between private property rights and public access. His opponents, he added, have "refused to collaborate and they've refused to negotiate. All they offer are threats and litigation and the cynical rhetoric of class warfare."

Twitter: @leeromney