Update: On October 25, 2017, the California Supreme Court denied Martins Beach LLC's petition for review and agreed with Surfrider Foundation's opposition to the petition; therefore, the high court of California allowed for the California Appellate Court ruling to stand as the current holding in the case. However, it is expected that Vinod Khosla will attempt to appeal this ruling to the United States Supreme Court. Their Petition for Writ of Certiorari is due within 90 days.
Nearly three years after its trial court win, the Surfrider Foundation and its legal team, led by Cotchett Pitre & McCarthy, LLP, are once again victorious in appellate litigation to ensure proper enforcement of the California Coastal Act and restore public access to Martins Beach. On August 9th, the California Court of Appeal for the First Appellate District ruled that the trial court’s judgment in Surfrider’s favor is affirmed in full and awarded Surfrider its costs on appeal.
“This is not simply a win for surfers in San Mateo County,” notes Surfrider Foundation's Legal Director, Angela Howe. “This is a win for all of the beach going public that wish to enjoy California's beautiful 1100 mile coastline.”
The trial court ruling of San Mateo Superior Court Judge Barbara J. Mallach found that “development” under the Coastal Act does not necessarily have to be a physical change or alteration in land. A change in intensity of use of the coast also constitutes development, which means that property owner Vinod Khosla needs a permit for blocking public access to the beach and diminishing the intensity of use of the water and public trust tidelands. Additionally, the trial court granted Surfrider Foundation injunctive relief in ordering that “Defendants are hereby ordered to cease preventing the public from accessing and using the water, beach and coast at Martins Beach…”
In its published decision, the Court of Appeal agreed that the trial court correctly concluded that Khosla's conduct, which significantly decreased access to Martins Beach, is “development” under the plain language of the Coastal Act. The Court noted that this is in line with the Coastal Act's goal of maximizing public access to and along the coast, and maximizing public recreation in the coastal zone, and is consistent with the mandate that the Coastal Act be liberally construed to accomplish its purposes and objectives. Further, the Court rejected Khosla's argument that the trial court’s injunction was an unconstitutional “per se taking,” and held that his challenge regarding the Coastal Act's permiting requirement is not “ripe” to challenge in court, since he's not yet even applied for a permit.
The appellate decision affirming the trial court ruling properly ensures the Coastal Act's protection of beach access, and means that public access to Martins Beach cannot be cut off in violation of the Coastal Act.
“We are pleased that the court continues to stand with the public and to protect the Coastal Acts’ basic premise: the coast belongs to all Californians,” said John Claussen, Chair of the Surfrider Foundation San Mateo County Chapter.
Attorneys at Cotchett Pitre & McCarthy, LLP, including Eric Buescher, who presented oral argument on appeal; the California Appellate Law Group; as well as attorneys Mark Massara and Herb Fox, have provided Surfrider with outside expert legal services in the appeal.
The Surfrider Foundation has worked diligently to open Martins Beach since 2010, when property owner Vinod Khosla locked the gates permanently to keep the public out. Surfrider has attempted to engage Khosla to work out a reasonable access plan, but has been met with litigious responses and accusations of blackmail. To open access to Martins Beach, Surfrider has worked on several fronts in addition to this litigation, including advocating to the Board of Supervisors in San Mateo County; advocating for the State Lands Commission to exercise eminent domain to acquire an easement to the beach; supporting state Senator Jerry Hill’s legislation: SB 968 which was signed into law in 2014, and SB 42, which is currently in committee this legislative session; and supporting the defense of the Martins Beach 5.
Surfrider Foundation will remain vigilant to defend this ruling and will continue to fight to secure and protect public access at Martins Beach and beaches across the nation.
For legislation this year, Senate Bill 42, sponsored by state Sen. Jerry Hill, D-San Mateo, passed out of committee and passed the full floor votes. However, on the Governor's desk, it was vetoed. SB 42 would have created a new account within the State Lands Commission that could accept outside donations, providing the agency money to take a public easement over the road by eminent domain, allowing the people of California one more way to exercise their legal right to access Martins Beach, even as billionaire property owner Vinod Khosla continues to refuse what the courts and the state have ordered.