BILL ANALYSIS Ó
SB 968
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Date of Hearing: August 6, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 968 (Hill) - As Amended: June 30, 2014
Policy Committee: Natural
ResourcesVote: 6-3
Judiciary 7-1
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill requires the State Lands Commission (SLC) to enter
into negotiations to acquire a public access right-of-way to the
beach, located at the Martins Beach property south of Half Moon
Bay. If SLC is unable to reach an agreement or the owners do
not voluntarily provide access by January 1, 2016, SLC may
require a right of way or easement by condemnation.
Additionally, this bill:
1)Clarifies that nothing in this bill prohibits the owner of the
property from voluntarily providing public access to and along
the shoreline at Martins Beach upon terms acceptable to SLC.
2)Requires SLC to consult and enter into negotiations with local
stakeholders to address the ongoing operation and management
issues of any property acquired pursuant to this bill.
3)Makes various legislative findings and declarations.
FISCAL EFFECT
1)Potential one-time GF costs, in the several millions to tens
of millions of dollars range if the SLC purchases a
right-of-way or easement.
2)Potential ongoing GF costs for the operations and maintenance
if SLC purchases a right-of-way or easement.
COMMENTS
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1)Purpose. According to the author, Martins Beach, located in
San Mateo County, is a significant local coastal resource that
had been accessible to local residents and visitors for more
than 100 years. However, after the sale of the property
adjacent to the beach in 2008, Californians are now unable to
access Martins Beach by land because the only road leading to
the beach has been closed by the new land owner who controls
the road and adjacent property. To address the current lack of
access to Martins Beach caused by this closure, this bill
seeks to reinforce the public's right to access California
beaches and coastal resources by taking steps to reestablish
an access route to Martins Beach.
2)Background. The Martins Beach property consists of two
parcels, totaling approximately 89 acres of beachfront
property in San Mateo County, located about 10 miles south of
Half Moon Bay along the Cabrillo Highway. The property traces
its origins to a rancho granted by the governor of Spanish
Mexico in 1838. From the early 1900s until 2008, the property
was owned by the Deeney family who allowed public access via
Martins Beach Road for a fee.
In 2008, the property was sold to two limited liability
companies owned by Vinod Khosla (referred to here as Martins
Beach LLC). Following a warning issued by San Mateo County in
2009 that the new owner must preserve the coastal access
previously provided by the Denney family, Martins Beach LLC
sued the county to clarify and settle its legal obligation to
provide public access. San Mateo County Superior Court Judge
John Grandsaert ruled in the County's favor. After two years
of complying with San Mateo County's request to maintain
access to the beach, Martins Beach LLC locked the gates and
posted no trespassing signs.
In response, a group called Friends of Martins Beach sued
Martins Beach LLC on various grounds, including the claim that
prohibiting access to the beach violated Article 10, Section 4
of the California Constitution regarding public access to
navigable water. In April 2014, Judge Gerald Buchwald ruled
in favor of Martins Beach LLC finding the property's federal
land patent, which served as a quitclaim deed of all US
interests in the property and predates any sovereign claim in
the property by the state of California, prevents the state
from asserting a new interest in public access at Martins
Beach ( Comment 4 below). This ruling is being appealed.
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In 2013, the Surfrider Foundation sued Martins Beach LLC,
claiming that blocking access to the beach required a coastal
development permit which was never sought nor obtained. Final
arguments concluded in July 2014, and a ruling is expected
within 90 days.
3)Public Trust Lands and Coastal Access.
The California Constitution prohibits an individual from
claiming or possessing the frontage of tidal lands of
navigable waters for excluding the right of way for any public
purpose. The common law doctrine of the public trust protects
the public's right to use California waterways for water
dependent commerce, navigation, fishing, boating, natural
habitat and water-oriented activities. Filled and unfilled
tide and submerged lands and the bed of lakes, streams, and
other navigable waterways are to be held in trust by the state
for the benefit of the people of California.
SLC is the steward and manager of the state's public trust
lands. Existing law authorizes SCL to acquire public access
to public trust lands by purchase, lease, gift, exchange, or
if all negotiations fail, by condemnation. This bill restates
this existing authority.
Existing law requires the state to maximize public access to
and along the coast and to maximize recreational opportunities
in the coastal zone. The California Coastal Commission (CCC)
is charged with protecting public access to and along the
coast.
4)Martins Beach Pre-1900 . In 1838, the governor of Spanish
Mexico granted an 8,905 acre of property to Jose Maria Alviso,
who subsequently conveyed the property to his brother Jose
Antonio Alviso. The present Martins Beach was part of the
larger land grant.
In 1848, the Treaty of Guadalupe Hidalgo formerly ended the
Mexican-American War and resulted in Mexico ceding a region,
including California, to the United States. The Treaty
required the United States to honor pre-existing Mexican land
grants. Congress passed the California Land Act in 1851 to
settle Mexican land claims, following which the federal
government issued federal land patents for properties
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recognized by the Treaty. Jose Antonio Alviso filed a claim
for the property that was ultimately upheld by the United
States Supreme Court, and a patent was issued for the rancho.
The patent established fixed boundaries for the property,
including a fixed boundary for the seaward edge of the
property that, as a result of over 150 years of coastal
erosion, resides well offshore of the current intertidal zone.
In a 1984 Supreme Court decision, the court held that the
public trust doctrine to determine the applicability of the
constitutional provision on public access does not apply to an
area of tide and submerged lands if all the following apply:
a) The tide and submerged lands were part of a Mexican land
grant (i.e., grants issued to individuals by the Mexican
Governor of California prior to the Treaty of Guadalupe
Hidalgo in 1848);
b) Those lands were patented by the federal government
through a process established to protect the property
rights of Mexican landowners, which was an obligation the
U.S. committed to under the Treaty of Guadalupe Hidalgo;
and
c) The federal patent was confirmed without any mention of
a public trust easement.
It is this Supreme Court ruling upon which the trial court
relied in finding that the federal land patent prevents the
state of California from asserting a new interest in public
access in the Friends of Martins Beach case.
Supporters of this bill assert the trial court based one of
its findings on an unprecedented and questionable holding that
the California Constitution's provision prohibiting an
individual from excluding the public's right of way to
navigable waters codifies the common law public trust
doctrine. Supporters argue the Supreme Court decision was
mistakenly applied because the common law public trust
doctrine-which protects the public's right to use tide and
submerged lands for commerce, navigation, fishing, boating,
natural habitat protection, and other water oriented
activities-does not confer any right on the public to use
non-trust lands to access the water.
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5)The California Coastal Commission (CCC). The CCC, who is not
a party to either suit, sent a Notice of Violation to the
property owner in 2011 for closing the gate and denying public
access. According to CCC staff, they have been in
conversation with the owner and his representatives about how
to resolve the violation (closed gate), but no agreement has
been reached and progress has been slow.
In light of the lack of progress, the CCC initiated a
Prescriptive Rights documentation process in July, and posted
a "Prescriptive Rights Survey" on its website asking anyone
who has accessed and used the beach in the past to submit the
questionnaire to help the CCC document historic public use of
the beach or prescriptive use.
The concept of prescriptive rights has its roots in British
Common Law, and is codified in the California Code of Civil
Procedures, and supported by existing case law. If it can be
shown that the public has been utilizing private property as
if it were public land for a period of at least five years, a
right to continued public access may be established.
6)Opposition. According to representatives for the property
owners, this legislation is premature for this unique property
currently in active litigation. Martins Beach has complex,
site-specific property rights, unique to it and better
addressed by the current legal process and good faith
negotiations.
The opposition further asserts, in May 2014, the court issued
a written Opinion and Judgment in the Friends of Martins Beach
case finding that Martins Beach 1, LLC and Martins Beach 2,
LLC are the fee owners of the property including the off-shore
submerged tidelands, and there is no right of public access or
easement for the public to use or access the property for any
purpose whatsoever.
According to the opponents, because there are no existing
public lands to which access is needed, there is no authority
to acquire a right-of-way or easement across this private
property. Furthermore, any acquisition of easement or access
by way of condemnation may require the state to compensate the
property owner for use of the beach and submerged tidelands in
addition to the access road. There is no precedent for state
acquisition of such a property interest, the cost of which is
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unknown but could be very substantial.
Analysis Prepared by : Jennifer Galehouse and Joel Tashjian /
APPR. / (916) 319-2081