Latest salvo in the Martin's Beach Public Access Case...

[Ian Wilson]

This one will likely head to the Supreme Court. At stake is the priority of property rights and public access to the beach.

Californians consider access to the beach a right. One of the rights of property ownership is exclusion - the the right to exclude others.This case is directly in the collision of both rights. This will end up being one of the seminal property rights and "takings" cases and take its place along with Ehrlich V. Culver City, Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. Johns River Water Management District.

Something to read over the weekend...on the beach...at Martin's Beach...

Beach Access - SURFRIDER FOUNDATION v MARTINS BEACH 1, L.pdf

[TTaylor]

Prescriptive Easement.

[Dave Karoly, PLS]

Whether it is a prescriptive easement or implied dedication is not at issue in this case (that is being litigated in another case). In this case the Trial Court ruled a coastal development permit is required to permanently close the gate and the Appellate Court affirmed here.

Private property rights are not absolute. The system of land tenure evolved as a way to ensure that the land was productive so that the Kingdom would have sufficient crops, timber resources, game, and minerals to survive and thrive. Cutting people off from access to the coast is not good.

[mpallamary]

This is a very interesting case and will be heard at the Supreme Court. There are a number of important issues here that involve a test of the Constitution and related property rights.

[steffan]

I think the most interesting issue litigated is that of taking.
From my view in the cheap seats I'm placing my bet on that the Supreme Court is not going to agree to review it. May be long odds but that is my gut feeling after reading the opinion. I think the Supremes will see this as already settled law.

[mpallamary]

Good observation. The ultimate decision will have a huge impact on property rights. The owner was "hometowned."

[Warren Smith]

That was an extraordinary analysis by the Appellate Court on a narrow issue. If the Supremes grant certiori, it may be to expand on it - which I would anticipate with delight.

[mpallamary]

Yes! It is needed.

[NickL]

wow, that was a read. I've been following this case since the trial court's decision made headlines, and I think the appellants are out of gunpowder here. All evidence aside, closing Cal beach to public access w/out gov't approval won't get you very far... why not just keep charging the access fee and, if you feel there are too many beach bums on your radar, use your billions to buy yourself an island all to yourself where you can "hole up" during surf-season.

Agreed with Steffan; my money is on him having to accept that his lack of diligence has put Surfrider's Counsel's kids thru college.

[Peter Ehlert]

This is a very interesting case and will be heard at the Supreme Court. There are a number of important issues here that involve a test of the Constitution and related property rights.

Mike who was your client?

BTW I also doubt it will be heard... settled law.

[Ian Wilson]

If it doesn't move higher, it will be because the Appellate Court well took notice of the actions and decisions of the higher court on this decision. It was a well written opinion that guides us a great deal to chew on until Friends v Martin Beach, llps hits the "stands".

It will be interesting to see how the issue of access by permission fares against the claim of long standing use.

It almost makes me want to pull on my old Animal Skin, grab a banana and my padawan (a peninsula homegrown wave rider) and ride dawn patrol at Margins Beach tomorrow. Now where did I put those bolt cutters...

[mpallamary]

I represent the owner and the Constitution. This battle is far from over. The ruling was a hometown ruling.

[LS_8750]

Mr. Pallamary is that the sort of stance we should expect from an "unbiased" expert?

In law, who cares about the Constitution?

Come on man.
Mentor us.

[Dave Karoly, PLS]

Interesting, I'm up to page 21.

I only glanced at the summary and final result yesterday because I was in a "meeting" with my grandson most of the day.

The opinion says reducing access is a project which requires a coastal development permit (CDP). Nothing special there, lots of things require a permit.

Then it says the takings issue isn't ripe because Appellant hasn't applied for a CDP yet. They may be able to get a permit to close the access which would end the regulatory portion of the case.

This opinion is just an intermediate step in the case.

[mpallamary]

There are a number of issues associated with this case. The gate is one. Historically, access was by license. Since when does a license result in the loss of ownership? It is a taking, pure and simple.

[mpallamary]

http://law2.umkc.edu/faculty/projects/f ... akings.htm

[mpallamary]

I was the expert in the National City Boxing Club case. Another successful effort to protect property rights. These cases remind us of the importance of property rights and the abuse of the government.

https://www.youtube.com/watch?v=oCSiVtWUUWY

http://fox5sandiego.com/2014/12/05/supe ... to-pay-up/

[mpallamary]

http://www.nbcbayarea.com/news/local/Ma ... 58623.html

[Ian Wilson]

Not so sure about simple, but the license portion will be heard as part of the other case...Friends of Martins Beach v Martin's Beach llps.

The gate is still locked.

This is far from over.

[mpallamary]

Indeed. The gate is closed.

[Gary Schenk]

It is a taking, pure and simple.

It is indeed a taking. A taking from the people of California. Before purchase they were told that there was existing access and that it would have to remain. Seems pretty straightforward.

Just because someone is as rich as Croesus doesn't mean that they can do what they will.

[NickL]

...They may be able to get a permit to close the access which would end the regulatory portion of the case.

This opinion is just an intermediate step in the case.

If they want to develop new/improve facilities for the [quasi-public] beach access there's a very good chance such a CDP will be approved, in my opinion; but doesn't it seem that Courts are determined to protect the Public's access by way of the "omnipotent" Coastal Act? If MB, LLP(s) were able to file for and obtain a CDP to close access, obviously this cost would be a drop in the bucket compared to thousands-per-day in fines, not to mention legal fees for both sides of the Surfrider cases. I'm quite curious to learn how often, and in what circumstances, has the Commission granted a permit for closing access? I bet Mr. Pallamary has researched..

Of course, as Ian points out, there is still FRIENDS VS for Khosla to contend with, and the fact that the appellate court remanded the initial court's decision, which now has an INTENSE focus pointed at public enjoyment, and consistent w/ the Coastal Commission's agenda.. not a battle I'd be interested in fighting (as the property owner; as a Surveyor, much different story!)

"It's easier to ask forgiveness than it is to get permission." -- Rear Admiral Grace Murray Hopper (9 December 1906 – 1 January 1992)
^^ I suppose we might tack on "..and often times significantly more expensive, especially in Blue states with killer weather."

[Dave Karoly, PLS]

...They may be able to get a permit to close the access which would end the regulatory portion of the case.

This opinion is just an intermediate step in the case.

If they want to develop new/improve facilities for the [quasi-public] beach access there's a very good chance such a CDP will be approved, in my opinion; but doesn't it seem that Courts are determined to protect the Public's access by way of the "omnipotent" Coastal Act? If MB, LLP(s) were able to file for and obtain a CDP to close access, obviously this cost would be a drop in the bucket compared to thousands-per-day in fines, not to mention legal fees for both sides of the Surfrider cases. I'm quite curious to learn how often, and in what circumstances, has the Commission granted a permit for closing access? I bet Mr. Pallamary has researched..

Of course, as Ian points out, there is still FRIENDS VS for Khosla to contend with, and the fact that the appellate court remanded the initial court's decision, which now has an INTENSE focus pointed at public enjoyment, and consistent w/ the Coastal Commission's agenda.. not a battle I'd be interested in fighting (as the property owner; as a Surveyor, much different story!)

"It's easier to ask forgiveness than it is to get permission." -- Rear Admiral Grace Murray Hopper (9 December 1906 – 1 January 1992)
^^ I suppose we might tack on "..and often times significantly more expensive, especially in Blue states with killer weather."

I'm in favor of requiring public access.

Private property rights were evolved over time to serve a social good which was productivity of the land so that the kingdom would have sufficient food, natural resources, and game. Private property rights do not exist in a vacuum. Conservatives seem to feel that private property rights should exist in favor of the owner without the companion social good and public benefit. In colonial times private owners were often required to provide public right-of-way without compensation because it was felt that public roads were necessary for society to thrive and besides most private owners were very close in time to the original patent from the King which essentially created the property right out of nothing. The U.S. Constitution tempered this by requiring compensation. So as a general principle private property rights are not absolute and are tempered by the needs of the public.

[PLS7393]

I too have been keeping an eye on this case for a couple of reasons, and who knows how long it will take to resolve.
I'm not taking sides, but I have an idea.
Martins Beach is a special place if anyone has ever been there, for work or play.
Our car club use to have car shows down at the beach, pretty cool stuff.

[mpallamary]

California is decidedly backwards.

http://digitalcommons.uri.edu/cgi/viewc ... xt=ma_etds