BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: SB 968 HEARING DATE: April 8, 2014
AUTHOR: Hill URGENCY: No
VERSION: February 10, 2014 CONSULTANT: Katharine Moore
DUAL REFERRAL: Judiciary FISCAL: Yes
SUBJECT: Public lands: Martin's Beach property: access road.
BACKGROUND AND EXISTING LAW
The State Lands Commission (Commission) has authority over
California's sovereign lands and the commission administers
these lands pursuant to statute and the public trust doctrine.
The public trust doctrine is a common law doctrine that
specifies the state's authority as sovereign to exercise
continuous supervision and control over the navigable waters of
the state, tidelands, and and non-navigable tributaries to
navigable waters. The doctrine includes the protection of
maritime or water dependent commerce, navigation, and fisheries,
and the preservation of the lands in their natural state for
scientific study, open space, wildlife habitat, and
water-oriented recreation. Incidental uses that directly promote
trust uses or that lend themselves to the public's enjoyment of
trust lands are also permitted. These may include facilities
that serve visitors, such as parking lots, hotels and
restaurants.
In specific circumstances, the commission may enhance public
access to or along navigable waters (see, for example, Public
Resources Code (PRC) §6307) to justify certain actions.
Additionally, PRC §6210.9 gives the commission specific
authority, where there is no access available to public trust or
similar lands, to obtain a "right-of-way or easement across
privately owned land or other land that it deems necessary to
provide access to such public land" via condemnation. The
commission has never exercised that authority since receiving it
in 1975.
The California Constitution (Article X of Section 4) states that
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"no individual, partnership, or corporation, claiming or
possessing the frontage or tidal lands of a harbor, bay, inlet,
estuary, or other navigable water in this State, shall be
permitted to exclude the right of way to such water whenever it
is required for any public purpose, nor to destroy or obstruct
the free navigation of such water; and the Legislature shall
enact such laws as will give the most liberal construction to
this provision, so that access to the navigable waters of this
State shall be always attainable for the people thereof."
Further, the Coastal Act (PRC §30000 et seq.) requires
maximizing public access to the coast and recreational
opportunities.
Martin's Beach is located on the coast of San Mateo County
approximately 8 miles south of Half Moon Bay. Seventy-five foot
cliffs are located on both the north and south ends of the
beach. Access to the beach is via a private road (Martin's
Beach Road) from Highway 1. There are approximately 45 cabins
on long-term lease adjacent to the beach area. Prior to July
2008, a single family had owned Martin's Beach and the
surrounding land for over 100 years. At various times the
family allowed the public access to the beach by vehicle,
according to documents filed during recent litigation. A
parking area was maintained near the beach and parking fees were
charged. Facilities available included a general store,
restaurant and restrooms. These uses and development pre-date
the passage of the Coastal Act. Documents submitted during
litigation state that the store and restaurant were closed by
the end of the 1980s. In July 2008, two parcels totaling 89
acres from Highway 1 west to the coast and encompassing most of
Martin's Beach and all of Martin's Beach Road were sold for
$37.5 million.
The new owners of the two parcels are Martins Beach 1, LLC and
Martins Beach 2, LLC (MB12). Vinod Khosla, the prominent
venture capitalist, and his family are behind these two LLCs.
In fall 2009 or at some point thereafter, local management of
MB12 closed and locked a gate on Martin's Beach Road at Highway
1, and repainted a roadside sign indicating the beach, among
other actions. According to the local management, the road and
parking area were in disrepair and it was uneconomic to provide
a parking attendant at the beach. Considerable local
controversy ensued as activists and political figures sought to
obtain public access to the beach again. There are numerous
news stories describing trespassing by surfers and others as
well as attempts by stakeholders to negotiate renewed public
access.
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MB12 have been sued twice in an effort to obtain public access
to the beach. Friends of Martin's Beach LLC sued for public
access to the tidelands, beach parking area and access along the
Martin's Beach Road invoking, in part, the public trust doctrine
and provisions of the state's constitution (CIV517634, San Mateo
County Superior Court). The case was decided in favor of MB12
in October 2013, although the final order has not yet been
issued. News reports indicate there will be an appeal.
Additionally, the Surfrider Foundation has filed a citizen's
suit under the Coastal Act to compel public access (CIV520336,
San Mateo County Superior Court). A trial is scheduled for May
2014 in this suit.
PROPOSED LAW
This bill would:
require the commission to consult and enter into
negotiations with the owners of the two Martin's Beach
parcels to acquire all or portion of that property for a
new public access road "to and along the shoreline,
including the sandy beach" at Martin's Beach.
require the commission to use eminent domain to make the
purchase if a negotiated agreement is not reached by
January 1, 2016.
make various legislative findings in support of the bill
including a finding that special legislation is necessary.
ARGUMENTS IN SUPPORT
The author states that SB 968 was introduced "to try and provide
a pathway for compromise so the public can once again access
Martin's Beach. [?] Local residents and Californians have been
deprived of this natural treasure for long enough. [?] This bill
tries to bring the landowner to the table to reach a compromise
since they have been unresponsive to other efforts. I hope a
compromise can be reached because no one wants to use eminent
domain; however, to me there is no better or more appropriate
use for eminent domain."
According to the California Coastal Commission, "An opportunity
to secure permanent public access to such a significant stretch
of beach adjacent to major urban areas without the cost, time
delays and uncertainty of litigation is worthy of pursuing, and
acquisition here under the terms of this bill would appear to be
consistent with the Constitutional and statutory direction to
maximize access."
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ARGUMENTS IN OPPOSITION
None received
COMMENTS
Premature? As noted above, there are two active lawsuits
seeking public access to Martin's Beach. This bill seeks a
legislative remedy to provide public access. The Committee may
find it premature to direct the commission to enter into
negotiations or condemnation proceedings until this litigation
is completed as the outcome may obviate the need for this bill.
This bill is double-referred to the Senate Judiciary Committee .
Issues relevant to that Committee's jurisdiction will not be
discussed here.
Is the commission the right property operator ? The bill makes
no provision for the ongoing management and operation of the
property acquired pursuant to its requirements. Ongoing
management of the beach and parking area may be better suited to
State Parks or the local or regional open space or park
district. (Tunitas Creek Open Space Preserve, Wavecrest Open
Space, Purisima Creek Redwoods Open Space Preserve, El Corte de
Madera Creek Open Space Preserve, San Gregorio State Beach and
Burleigh Murray Ranch State Park all appear to be within 6 - 10
miles of Martin's Beach.) San Mateo County operates a vibrant
local park system which currently includes 20 separate
locations. Additionally, the commission has granted lands in
San Mateo County to the County and to the San Mateo County
Harbor District. The Committee may wish to add a provision
requiring local stakeholders to reach an agreement to provide
on-going management and operation [Amendment 1].
Technical corrections . Special legislation is found in Section
2 of this act, not Section 1, and the beach area of Martin's
Beach does not appear to be 200 acres [Amendment 2].
The limitation placed on the commission to use condemnation to
obtain easement or right-of-way pursuant to PRC §6210.9 does not
apply . Instead, in this instance, the commission is
specifically authorized to negotiate and purchase "property."
Funding ? SB 968 identifies no source of funds to pay for the
property it directs the commission to acquire. Additionally, no
funds are identified for any necessary construction, repairs or
ongoing maintenance and operation of the property once
purchased.
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Potential pending permits and a busy court . In 2013, both the
County of San Mateo and the California Coastal Commission issued
emergency permits to MB12 and a lessee of a house endangered by
a failing seawall to install a rip-rap revetment. A condition
of the emergency permit approvals was that regular coastal
development permit applications would subsequently have to be
filed and approved or the revetment would have to be removed by
the end of July 2014. In September 2013, MB12 and the lessee
filed permit applications for the sea wall and road repairs that
both San Mateo County and the California Coastal Commission
deemed to be incomplete. Letters continue to be exchanged and
MB12 is attempting to withdraw as a permit applicant in favor of
the lessee. There are existing zoning violations on the
property according to a staff letter from the San Mateo County
Planning and Building Department to the applicants.
There are 3 other related actions related to MB12 - one active
and two closed - in the Superior Court of San Mateo County
online archive. The active action is a contractors' lien for
aggregate filed in late February 2014. In 2009, MB12 sued both
the California Coastal Commission and the County of San Mateo
over public access (CIV485116). This case was dismissed as MB12
had not pursued all administrative remedies available. In 2013
another case was dismissed on similar grounds. In that instance
MB12 sued the California Coastal Commission over a disputed mean
high tide line (CIV523571).
SUGGESTED AMENDMENTS
AMENDMENT 1
Add section 6213.5 (c) as follows:
(c) The commission shall enter into consultation and
negotiation with local stakeholders, including, but not
limited to, local and regional government and government
entities, to address the ongoing management and operation
of the property acquired pursuant to this section.
AMENDMENT 2
On page 2, line 19: replace "a 200-acre" with "an
approximately 20 acre"
On page 3, line 24: replace "Section 1" with "Section 2"
SUPPORT
Black Surfers Collective
California Coastal Commission
California Coastal Protection Network
Coastside Beach Coalition
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Committee for Green Foothills
Environmental Action Committee of West Marin
Ocean Conservancy
Save the Waves Coalition
Sierra Club California Coastal Committee
Surfrider Foundation
Wildcoast
hundreds of individuals
OPPOSITION
None Received
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