Martin's Beach: Trial begins in billionaire's cutoff of public access

Martin’s Beach: Trial begins in billionaire’s cutoff of public access

By Lee Romney

May 8, 2014 2:50 PM PT

Reporting from Redwood City, Calif. — A civil trial over a beloved San Mateo County beach now closed to the public got underway here Thursday, with plaintiffs painting billionaire venture capitalist and landowner Vinod Khosla as a scofflaw who intentionally violated the California Coastal Act when he cut off access to Martin’s Beach without seeking a coastal development permit.

The nonprofit Surfrider Foundation contends that the act of locking the gate, painting over a billboard that had welcomed the public and hiring security guards changed the intensity of use of the beach and therefore required a permit.

San Mateo County planning officials told Khosla the same thing five years ago, records show, as did a judge who tossed out Khosla’s suit against the county and Coastal Commission, saying he had to first go through that administrative process.

Eric Buescher, outside counsel for Surfrider, told San Mateo County Superior Court Judge Barbara J. Mallach in his opening statement that the organization filed the citizen enforcement action “on behalf of the public -- those who used to visit Martin’s Beach and are no longer able to and those who never had the opportunity.”

The 1976 act, he added, “requires landowners in the coastal zone ask for permission prior to engaging in development. It is not a statute that allows people to do what they wish and then ask for forgiveness or plead ignorance later.”

Attorneys for Khosla’s limited liability companies -- which control the land -- countered that their client as a private property owner had every right to lock the gate and bar the road that paying visitors had previously used to get to the beach, and that the actions he took did not require a permit.

“Evidence will show that my client never engaged in any development,” said Jeffrey Essner. “Access is not development.”

The non-jury trial is expected to conclude next week.

While a ruling against him would not force the gate open, Khosla would have to submit to a lengthy regulatory process and could face up to millions of dollars in fines.

The case is the latest standoff between a wealthy private owner of California coastal property and state regulations that scrutinize changes in coastal use to ensure that public access is not dramatically reduced.

The property was owned for nearly a century by the Deeney family, who allowed the public to drive (or stroll) down private Martin’s Beach Road and charged a nominal fee for parking. Its white sand beach was promoted in state coastal guidebooks as ideal for children and the elderly. A billboard featuring the bay’s signature “shark fin” rock beckoned from Highway 1: “Enter.”

Then, in 2008, Kholsa’s Martins Beach LLC 1 and Martins Beach LLC2 purchased the property from the Deeneys for $37.5 million. New management continued to allow access – for a much higher parking fee – but in 2010 locked the gate, painted over the billboard and in 2013 hired security guards.

Another San Mateo County Superior Court judge ruled in favor of Khosla last fall in a separate suit that claimed a right under the California Constitution of public access to the beach. In his unusual October ruling, filed as a written order late last month, Judge Gerald G. Buchwald 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.

Essner pointed to Buchwald’s ruling as evidence that his client had a right to lock his gate.

“He does not need permission from the Coastal Commission to close an existing gate on his property, where there are no access rights that exist by law,” he told Mallach.

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.”

Essner said he plans to call an expert witness who reported on the Coastal Act while lawmakers were debating its wording to show that the word “custom” was removed from the final legislation. That, he said, will show that the mere fact that the public had become accustomed to using the beach does not guarantee access.

Outside court, Surfrider attorney Mark Massara begged to differ.

“They’re missing the elephant in the room,” he said. “The Coastal Act is clear that it’s the change in the intensity of use” that matters.

“Thousands of people used to use that beach and now they don’t.”

Mallach on Thursday also rejected Essner’s attempts to fight a subpoena of Khosla. Essner contends that the LLCs’ professional manager made all decisions about beach closure and Khosla had no meaningful information to share.

But Mallach ruled that plaintiffs can depose the Sun Microsystems co-founder. They will also seek to put him on the stand.