Right, which is why the Supreme Count rightly refused the case. The issue isn't the general principle of beach access easements. The issue is the specifics of whether there actually is an effective easement on this particular property. Frankly, I can't tell from the article or the discussion if there actually is an easement. That fact that irrevocable easements can be created by long-term public use (called adverse possession?) makes this more complicated than it appears.
Regardless, the right thing for Kholsa to do is provide access. And further the bad press probably is causing more issues than the few folks that would be accessing it ever would.
"Easement" isn't a magic word that let's the government use your property how it wants. (And no, the government can't just force you to run a public park on your property; governments have to buy the land they build parks on).
There is an easement here--it's the right of way that arises allowing the public to cross private property in order to get to the sea shore. If that was what the litigation was about, Khosla would definitely be in the wrong. But the state is going way beyond that--it's forcing him to keep open the parking lot, allow access to the beach above the mean high tide line, etc. That goes way beyond the easement that exists.
And the state admits that. There is no dispute in this case that the parking lot and sandy beach are not part of the easement. That's why the state had to go through a backdoor route: they're saying that he can't change the use of his undisputedly private property without getting a permit to do so.
What I don't understand is why the road isn't an easement by necessity on the land with the dominant estate being the public beach. If the beach were private property the owner of the beach could certainly claim an easement exists and that the servient estate (Khoslas) illegally terminated the easement. Is there some kind of exclusion for easements by necessity for public lands?
Do you understand what an easement is? Do you understand the binding quality of an easement on a purchase of freehold or leasehold land?
This is like Khosla digging up the sewage line feeding his neighbours house, because he doesn't like the idea of somebody else's poop flowing under the surface of his land.
He signed the contract which explicitly bound him to the easement, demanding public access through his land, to the beach. How much simpler can it get?
If this part of the contract can be nullified because he doesn't want to smell poor people, then I think the USA is heading to a bigger problem than beach access. Thousands of properties across the states have easements. Nullifying them without consideration of the public interest would be horrific.
If your property blocks access to another's property, you have to give up a slice of your land to provide access for the other property's owner. You can't simply buy up all the land around a property and then close off access. This is called an easement.
In this case the other property is the beach, which is owned by the government, no different than any other property. Khosla has no right to deny access to this property just because his home abuts it. The only issue here is an obscure treaty, apparently, but that will sort itself out.
That's only true if you're talking about different arguments for the same issue. Here, there are multiple issues: (1) does Khosla need a permit; and (2) does the public have an easement across his land?
It's worth reading Surfrider Foundation's opposition to Khosla's Supreme Court certiorari petition: https://www.supremecourt.gov/DocketPDF/17/17-1198/50086/2018.... Their #1 argument was that the Supreme Court shouldn't take this case now because Khosla hasn't even applied for a permit. (He was just fighting an injunction that keeps him from closing the road until he gets a permit.)
But eventually, the State will have to deny Khosla the permit, and justify doing so. It will be very hard for the State to say "we are going to keep you from building a fence to close this road," while simultaneously acknowledging "the public doesn't actually have a right to use this road." If the State uses its permitting power to effectively give itself an easement that doesn't otherwise exist, that will tee up the takings argument that was only theoretical in the Supreme Court petition. And I like Khosla's odds on prevailing on that argument.
It looks like the courts didn't find any right of public access to Martin's beach, but it did find that there was an existing permit for rules for accessing the beach. The court additionally found that if Mr. Kholsa wants to change those rules, he has to file a new permit. Mr. Kholsa argues that the previous owners changed the rules without filing for a new permit, so he shouldn't have to either.
Mr. Kholsa's argument strikes me as wrong on two counts: #1 just because the previous owners made changes without a permit, that doesn't mean it was legal or that he's now allowed to make changes without a permit. #2 there's quite a difference between the previous owners changing fees and hours and Mr. Kholsa ending all public access.
Mr Kholsa was informed before he bough the property that there was an existing public access to the beach and that San Mateo county expected that public access would continue. In that light, he looks a lot like someone who buys a house next to the airport and then complains about the noise from takeoffs and landings. Regardless of what principle he thinks he's fighting for, he's being a jerk.
It can't be "grasping" to make a winning argument about the actual legal issue in the case. What the government is asking for here is for Khosla to keep open an easement to the beach. The most important question is whether, as a matter of property law, any such easement exists.
You have know idea what Khosla was thinking at the time he bought the property. His Guadalupe Hidalgo argument is actually based on 1984 Supreme Court precedent. He could easily have been fully aware of that when he bought the property, hoping to use it privately.
The reason that it wasn't "his first rebuttal" is because of the tactics the State took. The State didn't argue that there wasn't a public easement across the property. It took the abusive view that it could effectively create such an easement by prohibiting Khosla from building a barrier to keep people from crossing the property. That's why the first issue that came up was whether he needed a permit to do that. But attacking the permit requirement first isn't some sort of admission that you don't have a private property right.
It’s a simple easement issue. If he wanted to create a new path for he public to access the beach, then nobody would care if he closed this one.
It’s not as if this was an after-the-fact decision, the public access path existed when he bought the property, as did the existing law and state constitution. His responsibility as a property owner there is to maintain that public access.
I think the principle that he is looking at is like this, someone please correct me if something is factually incorrect:
He didn't buy the beach, you can't own beach in CA afterall, but the beach truly is inaccessible by any means other than through the private property which he does own. The previous owners of the property allowed people to enter the private property on their way to the public property, and had done so for so long that people have never had to think about it, but the new owner doesn't feel he is obligated to do that, so the loss shocked a lot of people who have been using the private access road. Their supporters feel that because the previous owners allowed it, that the future owner should be obligated in some way to allow it as well. Khosla disagrees.
Would this be because the beach is deemed public, not private with a right to access it? To allow someone to sue a landowner on the beach would be confirming it is privately owned by the landowner, no?
Rayiner is a lawyer; I'm quite certain he knows what an easement is. Regardless, the state does not have an easement for the access road or parking lot, and is in talks to buy one. "Beach access" doesn't necessarily mean access by car with free/cheap parking.
Fortunately for everyone, self-righteousness does not magically make property rights go away.
I would think the SCOTUS would respect a state's right to say "you can't own this public land as enshrined in state law". Otherwise it's not just beach access we have to worry about.
The Constitutional issue is whether it's a taking to force Khosla to provide the level of access that the State wants. While it's clear that the State owns the land up to the mean high tide line, what it actually wants here is for Khosla to maintain the existing public access.
Easements and rights-of-way that stay with the property are not new, not unusual, and not generally something you can get wiped out by stomping your feet and yelling that it's a taking.
And the specific case of property rights ending at a specific tide line, and public access being guaranteed, exists widely and non-controversially in US states which have tidal coasts, and even where not explicit via statute has precedent running back in the common law to pre-independence times and ultimately at least as far back as the laws of the Byzantine empire. Dude's not gonna get a judgment in his favor; his plan is pretty clearly to just keep locking it up, paying the fine, locking it up, paying the fine, until somebody buys the property from him, he runs out of money, or he dies of old age.
For now, the posture is weird. The parties are fighting over whether closing up the existing beach access is a "development" that requires a Coastal Development Permit ("CDP"). The appellate court confirmed that it is and that Khosla closed up the existing access without the required permit.
The Constitutional issue is whether it's a taking to force Khosla to provide the level of access that the State wants. While it's clear that the State owns the land up to the mean high tide line, what it actually wants here is for Khosla to maintain the existing public access. That not only includes a pathway to the public shore, but access to the sandy beach, the existing provision of parking, etc. Khosla asserted the Constitutional issue, but the appellate court ruled that it was not yet ripe. In other words, Khosla can't argue there was a taking until the State actually denies his permit to close up the beach access. (The theory is that there is no reason to resolve a Constitutional question until we actually see what position the State takes.)
I think Khosla is actually right on the Constitutional point--if the State does make him keep the existing beach access (parking and all) that's a taking. That said, Khosla had full notice of what the State wanted before he bought the property. He basically tried to arbitrage on the fact that other potential buyers wouldn't engage in an extended legal battle with California to exercise the full extent of their private property rights. If he loses on that arbitrage bid, he'll have deserved it.
The issue is that even if you get the easement, it only has to be to the land below the high tide line. So either way, Khosla would be under no obligation to maintain, or even keep, the current road and parking. As all of the current infrastructure is above the high tide line. That's the essential problem.
Also:
>It's a mockery of public access if the only access is by sea
It's the high tide line that is the marker, not the low tide line. So access is always by land.
The issue is that the current custom is to access via the road and parking above the high tide line. That's what locals are accustomed to, that's what is being taken away by Khosla, and that's what the suit is about.
California courts have ruled it not his property several times. Despite mounting throwing never ending $$ to stall in court and mounting ridiculous legal theories of literally citing Pirate Law from the 1700s, he keeps losing again and again. It's a public beach, it's always been a public beach. It wasn't like it was a secret when he bought the property, he just thought he was special and smart enough and rich enough to get his way.
This isn't about big evil government encroaching on property rights. It's keeping land that was already public land public. If you owned a house and I bought up all the property around your house and then put a gate across and locked your driveway, you'd still own and have legal access to your house. That's what Kholsa is trying to do.
In fact, the opposite is true, and the reporting around this issue is a great example of how the media doesn't care about facts but instead cares only about narratives.
It's important to understand that this dispute involves two separate tracks of issues, one where Khosla has been winning, and one where he has been losing.
The first issue is the property right. An ancient doctrine called the "public trust" doctrine holds that the waters and beaches up to the high tide line belongs to the public. Moreover, it holds that, generally, there is an easement across private land to access that area.
However, California is a johnny-come-lately state. As a result, under Supreme Court precedent (Summa Corp. v. California), the state doesn't have easements over certain private property that dates to Mexican land grants: https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... (p. 429-430). Based on that precedent, the California Court of Appeals has held that there is no easement (as a matter of public trust doctrine) over Khosla's property:
> While the public trust doctrine can protect access rights over private land, the U.S. Supreme Court declined to extend that protection to private land certified under the 1851 federal law implementing the Treaty of Guadalupe
Hidalgo, where the federal or state government had not asserted an interest in title proceeding. Therefore, the court of appeal in Friends I found that, because
the Martin’s Beach property had been certified under the 1851 law without any mention of a public interest and never passed into state ownership, there could be no common law public trust easement over the land to the water.
There was a subsequent suit based on an alternate theory: that although there was no common law easement, an easement arose because the previous property owner "dedicated" the road to public use. The California Court of Appeals rejected that t heory too. https://www.jurist.org/news/2019/11/ca-appellate-court-rules....
> As such, according to the common law of public dedication, the court determined that Martin’s Beach is not dedicated to public access.
So now we are on the third string legal theory (from the article):
> State officials have been following these cases closely and are now taking a swing at the fight. The new lawsuit asks the court to consider unexamined evidence that shows that the beach, as well as the gated road, have been historically used by the public — citing a common law doctrine known as “implied dedication.”
We've gone from an easement under property law, to a "public dedication," to "implied public dedication."
That brings us to the second legal issue, which is whether Khosla needs a permit to build a structure to close the road to the beach. Even though courts have repeatedly held that there is no public right to use the road, the California Coastal Commission has found that it can use its powers to control development on the coast to keep Khosla from actually vindicating his private property right. So far, the State has been successful on that front. But after last year's loss on the underlying property rights issue, that position gets harder to justify. The State can only go so long using its authority over the building of fences to keep open a public easement that courts have repeatedly held does not exist. Hence this lawsuit.
As to your point (B)--it's a wonderful thing that private citizens have the financial resources to fight the State and vindicate their legitimate property rights. The opposite of that is tyranny.
People are legally entitled to use the road on his property to access the beach, which is slightly different.
I can see this being weird if the access rights were addded after you bought the land, but if the easement long predates your ownership, as it allegedly does in this case, I don’t really see why “property rights” should be allow you to wiggle out of it. That easement is part and parcel of the property you bought—-it may have cost even more if it weren’t included!
Regardless, the right thing for Kholsa to do is provide access. And further the bad press probably is causing more issues than the few folks that would be accessing it ever would.
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