Crunchtime for Khosla: Final showdown looms in Martins Beach trial

By Aaron Kinney
Posted: 07/13/2014 04:13:11 PM PDT1 Comment

REDWOOD CITY — In one of the most famous showdowns in the 38-year history of the California Coastal Act, a group of passionate surfers and a Silicon Valley billionaire are preparing for the climactic battle in a trial over access at Martins Beach — a case that could affect future clashes over the public’s ability to enjoy the coast.

Attorneys for the Surfrider Foundation and venture capitalist Vinod Khosla will make their final arguments Wednesday before San Mateo County Superior Court Judge Barbara Mallach, who is expected to weigh the evidence for several weeks before ruling.

Though the outcome of the case is pivotal for Khosla and the future of public access at the crescent-shaped beach south of Half Moon Bay, it has much broader implications.

Venture capitalist Vinod Khosla leaves San Mateo County Superior Courthouse after testifying Monday afternoon May 12, 2014, in Redwood City, Calif. Khosla
Venture capitalist Vinod Khosla leaves San Mateo County Superior Courthouse after testifying Monday afternoon May 12, 2014, in Redwood City, Calif. Khosla was called to testify about his refusal to open public access to a stretch of beach along the San Mateo County coastline. (Karl Mondon/Bay Area News Group)

If Khosla loses, it would undermine the rights of private property owners on the coast, according to the Pacific Legal Foundation, a conservative advocacy group. A win for the venture capitalist could cut into the authority of the California Coastal Commission, the powerful agency charged with preserving the coast.

“This is a decision that could have a significant impact on how the commission interprets the Coastal Act,” said Ralph Faust, who served as the commission’s general counsel from 1986 to 2006.

The trial hinges on Mallach’s interpretation of Section 30106 of the 1976 Coastal Act, which lays out the definition of development in coastal areas — activity that requires a permit. In addition to obvious changes, such as building or modifying a home, the 183-word definition includes any “change in intensity of the use of water, or of access thereto.”

Surfrider argues Khosla met those criteria in 2010 when his property manager permanently locked the gate on a private road that snakes down to Martins Beach, painted over a billboard that had long advertised the cliff-lined cove as a public destination, and occasionally posted security guards by the gate off Highway 1.

Khosla needed a coastal development permit from the county or the Coastal Commission to block access to the coast, Surfrider claims, but he never sought one. The surfers want the judge to order Khosla to apply for the permit, knowing the commission could reject it, and pay up to $22 million in fines.

The commission has already indicated it shares Surfrider’s interpretation of the law. Nancy Cave, manager for the commission’s San Mateo County district, told this newspaper in 2012 that locking the gate amounted to development and required a permit.

Joseph Petrillo, an expert in coastal law, takes a similar view. Petrillo was lead writer of the Coastal Act, served as the Coastal Commission’s first general counsel, and later directed the California Coastal Conservancy.

“People were going back and forth to the beach, and now they can’t,” said Petrillo. “That’s a change. And that’s what the Coastal Act was supposed to preserve.”

Khosla’s attorneys challenge Surfrider on several fronts.

First, they argue the term “access” in Section 30106 refers to a legal right of public access, or easement, which they distinguish from “permissive” access, or access by invitation to private property. The Deeney family, who sold their land to Khosla in 2008, allowed the public to visit the beach for decades, usually charging a parking fee. Since the public has never held any legal right to access the property, Khosla’s lawyers claim, the access didn’t change when Khosla’s property manager locked the gate.

From their perspective, telling a landowner he can’t ward off trespassers without the government’s permission is an assault on his fundamental property rights.

Moreover, the venture capitalist’s legal team claims the key phrase in Section 30106 must be viewed in the context of the entire Coastal Act. Considered in that light, they say, the language regarding changes in access to water refers to new development projects, not less substantial activity like modifying a billboard or closing a gate.

Paul Beard, head of the coastal land rights division for the Pacific Legal Foundation, argues a ruling against Khosla would damage the rights of beachfront property owners to protect their land.

“There is no constitutional right,” Beard said, “for the public to trespass onto private property as an easier means of accessing a private beach.”

Observers on the other side worry that a win for Khosla would shrink the definition of development when the commission decides future cases, hampering the agency’s authority.

The influence of the case will depend on whether Mallach’s decision is challenged in state appellate court, where judges can set legal precedent for lower courts. Both sides in the Martins Beach fight are likely to appeal a loss.

Meanwhile, a ruling in a separate lawsuit over access at Martins Beach is under appeal. And a proposed bill in Sacramento would ask the State Lands Commission to purchase a right of way to the ocean by 2016.

With Khosla’s wealth pitted against dogged activists and powerful state interests, the Martins Beach saga is far from over, said Steve Blank, a retired Silicon Valley entrepreneur who served on the Coastal Commission from 2006 to 2013.

“I think we’re in the first inning. Maybe it’s just the first pitch,” said Blank, “of what could be a very long battle.”

Contact Aaron Kinney at 650-348-4357. Follow him at

Transcript: Vinod Khosla’s testimony