A Matter of Principle & Property Rights

Martins Beach is a beach-front community of around 40 homes. The Deeney family, who owned the property since 1902, testified in court under oath that for as long as they can remember, the property was used as a business which charged a fee for parking and use of the private access road to the beach. When the new owner purchased the property in 2008, it was told by County and Coastal Commission staff that it could not make basic decisions about the private access road to the beach and the amount of the fee. Thus, the owner had no choice but to assert its property rights. It is the inherent right of any property owner to start, close, continue, or discontinue any legal business.

The controversy around Martins Beach involves important property rights that only the courts can decide. It is unfortunate that government agencies have refused to acknowledge the owner’s fundamental property rights resulting in controversy and litigation and precluding any meaningful dialogue between the owners and the larger community. The United States is about the rule of law, not populism, or press, or “what we wish was the law”.

The Martins Beach dispute is misunderstood. At issue is the right to close a business or charging for parking and access on private property. The San Mateo County Superior Court concluded in the Friends of Martins Beach case that the “private property at issue is indisputably owned in fee simple” by Martins Beach and that there is “no cognizable legal theory” which gives the public a right of access to Martins private property. The Court of Appeal upheld the trial court’s ruling on all but one legal theory which is now being litigated in San Mateo County Superior Court. No court has ever ruled that public access exists across private property under the California Constitution. Headlines notwithstanding, the Friends of Martins Beach case was only about the property from the mean high tide line landward, and did not address the property seaward of the mean high tide line. Although the Court in the Friends of Martins Beach case found no right of public access exists on the property, in a separate suit filed by the Surfrider Foundation, the San Mateo County Superior Court ruled that closing an existing gate constitutes “development” and requires a permit from the Coastal Commission. The Surfrider Foundation case is currently on appeal.

The various state agencies have treated other properties that closed a gate providing beach access very differently. The Red White and Blue Beach in Santa Cruz, for example, was once a popular beach and campground that charged a fee for parking. The Red White and Blue Beach closed its operations without obtaining a Coastal Development Permit, however, the state now insists that Martins Beach obtain a Permit to close or in any way modify its operations.. A key legal question is should every business require a permit to shut down? Should a business require a permit to change its hours or days of operation?

The former owners, the Deeney family, testified under oath that since before the Coastal Act in the early 1970’s they only allowed access for a fee. They testified that during the time they owned the property, there was always a gate and that they did not allow individuals to walk onto the Property, rather only allowed paid customers to drive down Martins Beach Road and park their vehicle in the designated parking area. Those who chose to pay the fee and drive down the road were allowed to use the parking area and the dry sand beach above the mean high tide line for recreational use. Whenever someone was caught violating this policy, they were asked to leave.

The Deeneys locked the gate and closed the road leading to the beach any time they felt like it, but it was routinely closed for private events, in the winter, when it was deemed uneconomic, and whenever an attendant was unavailable to collect the fee. The Deeney family did not apply for a permit each time it closed the road leading to the beach, and were never told by any state agency or any public official that a permit was required.

To enforce their right to close their business and exclude visitors when they pleased, the Deeney family patrolled the property. If someone came down Martins Beach Road without paying or without permission from the owner or manager, the individual(s) would be confronted and told if they want to come in, they must go get their car and pay the daily fee. If a patron refused to leave, the Deeney family would call the Sheriff who would respond and remove any unwanted trespassers.

The Deeney family did not apply for a permit to open their business, did not apply for a permit when they increased the fee charged to the public, and were never told by any public official that a permit was required for such acts. They closed the gate when they did not expect enough business, such as in the winter. During the winter, the beach would routinely erode 10 to 15 feet from storms and rising tides, making it unusable and unsafe and necessitating closing the Property. The Deeney’s maintained the beach and the parking area without any harassment from any state agency.

The Deeney’s further testified that they sold the property because the business was not profitable, the beach was in serious state of disrepair, and interest in visiting the beach was declining every year. When the property was purchased in 2008, the new owners continued the Deeneys’ practice of charging a fee to people who wanted to use and access the beach. Like the Deeneys, the new owners closed the road leading to the beach for private events, in the winter, and whenever an attendant was unavailable to collect the fee. That year, based on records kept by the owners, there were less than 30 days when more than five cars visited the property and less than 15 days when more than ten cars visited the property. As a result the property lost a substantial amount of money, with fees not even covering basic costs.

In 2009, the County sent a letter demanding that the fee be reduced to 1973 levels (something they had never asked the Deeneys to do and had not done in county or state owned properties), presumably to coerce the new owners to open the beach on a different schedule than the previous owners. When the owners offered to keep the property open on a historical basis the county refused to accept that alternative. They wanted more. The County also prevented the new owners from engaging in routine upkeep of the parking lot and routine maintenance of the property without a permit — activities the Deeneys did for years without a permit. As a result the limited parking that was available has washed away, and is no longer available. At that point, it became necessary to get a legal interpretation of the law.

So why doesn’t Martin’s Beach apply for a permit? Why should you apply for a permit when you have not engaged in any activity that would require the government’s permission? The Coastal Commission operates with impunity and when they cannot legally get what they want they use red tape and perpetual delays to coerce property owners into giving up property rights. After years of trying, Martin’s Beach has not even been able to get a public hearing because of intentional bureaucratic delays and red tape. Numerous requests for a hearing have been made over the years. The staff specifically told representatives of the owners that the Coastal Commission “knows how to deal” with people like them, that they have all of the “leverage”, and that they would wrap Martin’s Beach “in red tape”, and would never allow them to reach a hearing, until Martins Beach agrees to provide public access.

Is this kind of coercion and extortion that we should expect from a state agency? Can we expect a fair process with this agenda on the part of the staff? The state agencies have intentionally refused to pursue an enforcement action, or allow the new owners to reach a hearing, knowing that without doing so, the new owners cannot be afforded due process, cannot obtain a final determination on the issue, and cannot seek judicial relief. This is plain and simple extortion, that the US Supreme Court has previously ruled against in property disputes. The Coastal Commission can require access as a condition to a permit only when the condition is “roughly proportional” to the impact of the proposed project. Here, there is no proposed project. The Coastal Act, itself, provides that the Coastal Commission cannot apply the Coastal Act in a manner that would violate the Takings Clause of the US Constitution.

It is a fact that the State was interested in purchasing the property, was proceeding with due diligence to make a purchase, and ultimately decided not to proceed before it was sold to the new owner. They now want for free what they were unwilling pay for. The new owners have offered to sell the property to the state at assessed market value but the state seems more interested in acquiring access without paying fair compensation to the owners, against constitutional guarantees against the “taking of private property without just compensation”. The right to exclude others is the most valuable right in the “bundle of rights” that constitutes property. When that right is seized by the government, a taking of property in violation of the State and Federal Constitution has occurred. Our estimate is that the value of the property declines roughly in half if the owner no longer has the right to exclude.

The dispute here is about private property rights and exercising those rights, it is not about billionaires or green investors which are loaded words used to sensationalize the reporting. Only the courts can decide what the proper interpretation of the law here is and we intend to let that process determine what is right and what is wrong. No orchestrated media vilification campaigns or politically motivated opportunistic proclamations or state bills by pandering politicians can decide the issues at play. Rather the proper legal process must be followed to clarify both state and federal law. The ownership is very aware of the larger community’s interest and it is unfortunate that the legal process is necessary to defend fundamental property rights rather than a conversation with members of the public community about appropriate invitational use. However, under the circumstances, it is not possible to have that conversation without the legal determination of property rights.