Martin’s Beach: A Matter of Principle & Property Rights

Contrary to press reports, free public access has never existed at Martin’s Beach in almost a century (and longer), only paid parking to allow access through the property. But the harassment of the new owners and misperceptions of the situation is new. I want to share my views here and dare you to understand the facts. I feel coerced and extorted, hence the fight.

1. What is the status of the legal dispute on Martin’s beach?

On Monday, January 29, 2018, San Mateo County Superior Court Judge Steve Dylina issued a Statement of Decision and Judgment finding there is no right of public access at Martin’s Beach. The case arises out of a lawsuit filed in 2012, by a group referred to as “Friends of Martins Beach”. In the lawsuit, Friends of Martins Beach asserted 7 legal theories. The Judgment states “Judgment is entered in favor of Defendants Martins Beach entities on all causes of action” Incidentally, this was not generally covered by the press because, presumably, it was a victory or the “wrong side”. The press, it feels to me, has been opining, not reporting. The Judgment goes on to state “…Defendants are the fee owners of the Property …and Plaintiff and its predecessors, assigns, tenants, or agents, and all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the Property adverse to Defendants’ title, or any cloud on Defendants’ title have no interest in the Property, including, but not limited to, any right of public access or easement for the public to use or access the Property for any purpose whatsoever.” In October 2013, San Mateo County Superior Court Judge Gerald Buchwald granted summary judgment in favor of Martin’s Beach entities on all claims, finding that there was no right of public access to the property on any theory. The Court of Appeal affirmed the trial court’s decision on all but one of the claims, which was resolved as described above in 2018.

Although the Court 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’s hours of operation (a gate that was installed decades ago) or changing the price of parking as a business constitutes “development” and requires a permit from the Coastal Commission. They are trying to get us to apply for a permit on the technicality that opening and closing an existing gate, or changing signs or prices is development! The Deeny’s did not ever apply to close the gate or change or erect signs. Their hope, I presume, is that technicalities coupled with harassment on every move needed to maintain the property as the Deeney’s (the former owners) did will be coercive enough to give them what they want, but don’t have legal rights to.

2. A partial history of Martin’s Beach

Martin’s Beach is a beach-front community of around 47+ homes and there is a road through the property to the undisputedly public beach. The Deeney family owned the property since 1902, testified in court under oath that for as long as they can remember (for almost a century), the property was used as a business (and agriculture) which only allowed access for a fee for parking and use of the private access road to the beach. There was always a gate which was periodically locked or left open for the parking business. Whenever someone was caught violating this policy, they were asked to leave or the sheriff called. The Deeney’s would also tow unauthorized vehicles, in addition to asking violators to leave or calling the sheriff if they did not. They believe that Martins Beach was one of the most patrolled properties on the California coast, under Deeney ownership. They had multiple sets of eyes (family/friends living on property), audio sensors, and cameras at any given time.

The Deeney family, per their court testimony which is public record, routinely closed the gate for private events, in the winter, when it was deemed uneconomic, and whenever an attendant was unavailable to collect the fee. They repaired the parking after every winter and did other maintenance. 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. Headlines notwithstanding, the court cases were only about access thru the property and not about the public beach. The law on access to public spaces like beaches across private property is well established.

The Martin’s Beach dispute is misunderstood. The issue is the right to close the business of charging for parking and access onto private property. The Deeney’s testified in court that they sold the business as it was losing money and demand for parking use was declining. The new owners asked the staff to open to the gate on roughly a historical basis when cars were expected to come by. Most days no cars came by and written records of this were submitted to the courts for 2008 and 2009. The new owners not being resident on the property need to hire staff to keep the fee collection business open. There were ten cars in a whole day less than thirty days in the whole year, making even an hourly attendant uneconomic. The new owners, not being resident on the property, need to hire staff to keep the fee collection business open.

My opponents hope, I presume, is that technicalities coupled with harassment on every move needed to maintain the property as the Deeney’s did will be coercive enough to give them what they want, but don’t have legal rights to. The Coastal Commission is requiring us to jump through hoops for activities that OTHER FOLKS WERE ALLOWED TO DO.

3. The dispute

Soon after the new owner purchased the property in 2008, it was told by the state that it could not make basic decisions about the private access road to the beach and the amount of the fee, things the Deeney family regularly controlled and did. Thus, the owner had no choice but to assert its property rights. The county demanded that the gate be open for longer hours than ever maintained by the Deeney Family for the many decades that they operated the property and to roll back the parking fee to be charged to those charged in 1972! ​This clearly felt like harassment and felt very unfair.

It is the inherent right of any property owner to start, close, continue, or discontinue any legal business, especially when it is losing money as was the case with Martin’s Beach. The controversy around Martin’s Beach involves important property rights that only the courts can decide and a prescriptive state that wants to control when a business on the coast can be opened or closed or what prices it can charge. 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. Until the issues are settled, a conversation is hard. When disputes arise as to interpretation one has to resort to the courts to clarify the law and not rely on populism, or press, or “what we wish was the law”.

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 clothing-optional beach and campground and charged a fee for parking. The Red White and Blue Beach closed its operations without obtaining a Coastal Development Permit with the state’s knowledge, something the state now insists that Martin’s Beach do. 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? Why impose different rules on Martin’s Beach than on Red White & Blue beach for exactly the same business and actions? Martin’s Beach planted some trees and the County asked them to remove the trees or get a permit. The trees were removed and given to our neighbor who planted the same trees. There was no objection to the neighbor’s actions.

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 Deeney’s practice of charging a fee to people who wanted to use and access the beach. In fact, they hired one of the Deeney sons to run the business roughly per their previous practices, when they expected cars to come by.

In 2009, the County sent a letter demanding that the fee be reduced to 1972 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 the same terms that it had been historically open (as per the Deeney’s testimony in court) when at least ten cars came by per day, the county refused to accept that alternative. 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 decades without a permit. At that point, it became necessary to get a legal interpretation of the law. How can an owner maintain access to a parking lot when they are not allowed to maintain the spots in the parking lot? Why should an owner be required to operate a business that is losing money?

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? Is operating an existing gate to change the hours of a business “development” as defined under the coastal act? The Coastal Commission uses 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 Martin’s Beach agrees to provide the access they want.

4. Why this matters?

Is this kind of coercion and extortion what we should expect from a state agency? Can we expect a fair process with this agenda on part of the state? 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 coercion, that the US Supreme Court has previously ruled against “coercion” which was alleged in the well known Nolan case, a previous property dispute. According to the Nolan case, 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 and must protect private property rights.

According to the courts, 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 Federal Constitution occurs. In applying the coastal act, the interpretation of what is “development” must be clarified by the courts.

5. Remedies

We understand that the State looked at purchasing the property but 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 Deeney’s real estate agent offered to negotiate with the state and P.O.S.T. BEFORE the property was put on the open market. The new owners have offered to sell the property to the state at assessed market value but the state must reasonably decide what is good use of state funds among the many priorities: education, homelessness, medical care…. etc.

We have on multiple occasions offered to keep the beach parking access open whenever, based on historical record, more than ten cars a day (less than one an hour) are expected to come by, but to no avail. At least the hourly cost of an attendant would be covered from our point of view. Why is something like this not reasonable, other than it makes great fodder for pandering politicians?

6. What do I care about?

The Martin’s Beach dispute has been a painful episode for me personally. I may be post-financial but am not post-facts. I have prided myself on always doing the right thing and living a caring principled life, always legal but beyond that ethical and fair, no matter how popular or unpopular my stances are (disparity, among others, is a principal goal I want to work on, but not the way Martin’s Beach opponents would have it as beyond the law and through coercion & populism, rights be damned). I love transparency and brutal honesty over hypocritical politeness, and don’t like to give in to coercion and extortion that seems to be the mode of the Martin’s Beach opponents. If I was to give tens of millions in value up by giving free access to the public at Martin’s Beach (something that has never existed at the property and the Deeny’s testified to for the century they have owned the property!) over this property, would it be to surfers or would I give it to homeless housing efforts, a topic I am very interested in? This logic matters even if not always popular. I don’t shy away from unpopular views.

I love the American system and values and humanistic progress. I have invested a large part of my wealth into technologies to assist with climate change and other societal impact and hope to keep doing that. Many of these technologies to help solve climate change and sustainability failed, some spectacularly, but I felt the world needed them and so I continued to support them. Others ARE making a difference and doing well in areas such as food, agriculture, automotive batteries, industrial dirty gas cleanup, building efficiency, power generation and geothermal. As a venture firm, we ALWAYS ask ourselves whether we believe a company is a net negative for society before we invest, and my passion is to be a venture assistant for entrepreneurs who want to build large meaningful, impactful companies that help society. I don’t care much about wealth and hope to give most of it away, I am not embarrassed to use what I have earned. I came to this country with nothing and appreciate it. I want to use most of my wealth to do good for society and if I make any additional money, it will be used to do even more good, whether it is thru “for profit” or “not for profit” enterprises.

Instead, there are articles and misperceptions that are labeling me as a bad guy by press reports that inaccurately describe “public access that Khosla shut down”. This wasn’t ever the case as you have read above. To me, the Martin’s Beach dispute, however unpopular and damaging, is about principles, of not being extorted or coerced into giving up property rights, a tactic many many coastal property owners have detailed for me as routine practice by the Coastal Commission. My personal conversations with individuals in the Coastal Commission, outside of the courts, have been constructive, including with the former Executive Director and the well meaning staff of the Coastal Commission. But principles of being treated unfairly, being coerced by a state body or extrajudicial efforts, principles of law, and property rights are hard to compromise for public popularity. I’d rather do the harder right thing than the easier wrong thing by encouraging extrajudicial behavior.

In conclusion

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. It is a matter of principals of property rights and appropriate state behavior. Despite all the headlines, like the NY Times wrongly stating “Khosla erected an imposing gate” (you can from the pictures judge if it is “imposing”; it definitely was erected a very very long time ago; or is it “all the news we want to print, fit or not”?), the lawsuit is not about beach access, but the technicality of “are changing the hours of a business development”. It is not about a public beach (undisputed) but “access to it thru private property”.

I have seen very little in the press that is thoughtful about the dispute. Most of it is factually incorrect. Only the courts can decide what the proper interpretation of the law here is. No 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.

I would like to find a way to maintain access thru the property to the beach but given the options I have been given by the state, I need to fight back against government overreach so this can be done in a productive and cooperative manner. 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. If they are acknowledged, then dialog would be possible.

Again, I believe in fairness, principles and American mainstream norms, and wanted to share this different point of view. Asking hard questions and standing up for principles should not cause you to be demonized.