Edward Sullivan and Carrie Richter
BridgeTower Media Newswires
Although the public’s right to use the beach is guaranteed in many states, the right to traverse private property to access the beach has been controversial, particularly in California. One of the seminal cases prescribing the limits in which a local government owes compensation for taking private property under the Takings Clause dealt with beach access in California.
In Nollan v. California Coastal Commission, the U.S. Supreme Court struck down a California Coastal Commission decision for a permit to demolish a smaller existing home and replace it with a three-bedroom house subject to a condition requiring dedication of a public easement along the Nollans’ beachfront lot because the condition lacked the required “essential nexus” between the public easement condition and the burden to the public created by the development approval.
The tide of litigation surrounding the relationship between beach access and the takings clause in California continues to ebb and flow and, as a result, could have ramifications in other states. In early October, the U.S. Supreme Court denied review of an interesting case, Surfrider Foundation v. Martins Beach 1 LLC, which deals with Martins Beach – slightly south of the widely acclaimed surfing spot known as Half Moon Bay.
There is only one point of access to that beach across private property that, up until 2009, was made available to the public through payment of a parking fee. The land was purchased by a software executive, Vinod Khosla, in 2008. Then, in 2009, the gate allowing access to the coast at this site was closed. The Surfrider Foundation, a nonprofit focused on the preservation of public beach access for recreation, brought suit to open the gate, arguing that the California Coastal Act required Khosla to obtain a coastal development permit before closing the public access.
The trial court issued an injunction that required reopening the gate and allowing access at the level that existed previously. On appeal, the California Court of Appeals affirmed the lower court’s determination that closing the gate constituted “development” requiring a Coastal Commission permit. Even more interesting perhaps was the court’s finding that the constitutional challenge to the California Coastal Act’s permitting requirement under the state and federal takings clause was not ripe. The injunction was not a taking, per se, because it was not permanent. The California Supreme Court denied review.
In February 2018, Khosla asked the U.S. Supreme Court to take review. The questions presented to the court included whether the injunction requiring a compulsory public-access easement could impose a per se physical taking and whether the California Coastal Act may require a private property owner to apply for a permit in order to change the way that public access to the beach is provided. The issue was whether a physical taking, even for a limited duration, requires a local government to provide just compensation. Yet one week before Justice Brett Kavanaugh joined its ranks, the U.S. Supreme Court declined the invitation.
It is anticipated that Mr. Khosla will file an application for a permit with the Coastal Commission to close the gate, but it is likely that this permit, which could make beach access permanent and give rise to additional Takings Clause concerns, may indicate that a bigger wave is yet to come.
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Edward Sullivan is a retired practitioner of land use and municipal law for more than 45 years. Contact him at esulliva@gmail.com. Carrie Richter is co-chair of the Garvey Schubert Barer Land Use Group.
