BILL ANALYSIS �
SB 968
Page 1
Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 968 (Hill) - As Amended: June 9, 2014
As Proposed to be Amended
SENATE VOTE : 22-11
SUBJECT : MARTINS BEACH PROPERTY: ACCESS ROAD
KEY ISSUE : IN ORDER TO RESTORE PUBLIC ACCESS TO MARTINS BEACH,
SHOULD THE STATE LANDS COMMISSION BE DIRECTED TO EXERCISE ITS
EXISTING AUTHORITY TO PURSUE ACQUISITION OF A RIGHT-OF-WAY OR
EASEMENT TO THE BEACH IF, BY JANUARY 1, 2016, NEGOTIATIONS TO
RESTORE PUBLIC ACCESS FAIL TO YIELD AN AGREEMENT BETWEEN THE
COMMISSION AND THE OWNER OF THE LAND CONTAINING THE ONLY ACCESS
ROAD TO THE BEACH?
SYNOPSIS
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. First, the bill would direct the State Lands
Commission to negotiate with the owner of the property to
acquire a right-of-way or easement to ensure public access to
and along the shoreline of Martins Beach. The bill clarifies
that this directive in no way prohibits the owners from
voluntarily providing public access upon terms acceptable to the
Commission. If, by January 1, 2016, the Commission is unable to
reach an agreement with the owner to acquire a right-of-way or
easement or the owner does not voluntarily provide public
access, then as proposed to be amended , this bill would simply
direct the Commission to acquire a right-of-way or easement
pursuant to its existing statutory authority, but without any
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requirement to use eminent domain to do so.
Before the author's proposed amendments to address eminent
domain issues, the bill was opposed by California Strategies &
Advocacy, LLP, on behalf of its client, the owner of the Martins
Beach property. In their opposition letter, the owner's
representative objected to the bill's directive to use eminent
domain, contending, among other things, that the use of eminent
domain in this particular case is not legally justified and
would be inappropriate as a matter of public policy. As a
result of the author's proposed amendments, the committee was
very recently informed that the owners of the Martins Beach
property have agreed to withdraw their opposition. As a result,
at the time of this analysis, there is no known opposition to
the bill.
SUMMARY : Directs the State Lands Commission to exercise its
existing authority to pursue acquisition of a right-of way or
easement that will reestablish a route of public access to
Martins Beach. Specifically, this bill :
1)Directs the State Lands Commission ("Commission") to consult,
and enter into any necessary negotiations, with the owners of
two specified parcels of land in San Mateo County ("Martins
Beach property") to acquire a right-of-way or easement,
pursuant to existing statutory authority, for the creation of
a public access route to and along the shoreline, including
the sandy beach, at Martins Beach.
2)Clarifies that nothing in this bill prohibits the owners of
the property from voluntarily providing public access to and
along the shoreline at Martins Beach upon terms acceptable to
the Commission.
3)Provides that if the Commission is unable to reach an
agreement to acquire a right-of-way or easement or the owners
do not voluntarily provide public access to the beach by
January 1, 2016, then the Commission shall acquire a
right-of-way or easement for the creation of a public access
route to and along the shoreline, including the sandy beach,
at Martins Beach.
4)Directs the Commission to enter into consultation and
negotiation with local stakeholders, including, but not
limited to, nonprofit entities, local and regional governments
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and governmental entities, to address the ongoing management
and operation of any property acquired pursuant to this bill.
EXISTING LAW :
1)Provides that 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. (Cal. Constitution, Article X, Sec. 4.)
2)Finds and declares that the basic goals of the state for the
coastal zone are, among other things, to maximize public
access to and along the coast and maximize public recreational
opportunities in the coastal zone consistent with sound
resource conservation principles and constitutionally
protected rights of private property owners. (Public
Resources Code Section 30001.5(c).)
3)Provides that no lands owned by the state which front upon or
are near to any lake, navigable stream or other body of
navigable water, convenient access to which is not provided by
public road or roads, or otherwise, shall ever be sold, leased
or rented, without reserving to the people of the state an
easement across the lands for convenient access to such
waters. (Public Resources Code Section 6210.4.)
4)Declares that the right of eminent domain exists in the state
to all frontages on the navigable waters of the state.
(California Constitution, Article X, Sec. 1.)
5)Authorizes the State Lands Commission, in the name of the
state, to acquire by purchase, lease, gift, exchange, or, if
all negotiations fail, by condemnation, a right-of-way or
easement across privately owned land or other land that it
deems necessary to provide access to public land, including
school land, tide or submerged lands, and lands subject to the
public trust for commerce, navigation, and fisheries, to which
there is no access available. (Public Resources Code Section
6210.9.)
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6)Provides that private property "may be taken or damaged for
public use only when just compensation, ascertained by a jury
unless waived, has first been paid to, or into court for, the
owner." (Cal. Constitution, Article I, Sec. 19(a).) Defines
"just compensation" as a property's fair market value "as
determined by any method of valuation that is just and
equitable." (Code of Civil Procedure Sections 1263.310 and
1263.320.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill seeks to direct the State Lands Commission
("Commission") to enter into negotiations with the owner of the
Martins Beach property to acquire a right-of-way or easement for
the creation of a public access route to the beach. If by
January 1, 2016, the Commission is unable to reach an agreement
with the owner to acquire a right-of-way or easement or the
owner does not voluntarily provide public access, then as
proposed to be amended, this bill would simply direct the
Commission to acquire a right-of-way or easement pursuant to its
existing statutory authority, but without any requirement to use
eminent domain to do so.
Background on the Martins Beach property. The Martins Beach
property consists of approximately 53 acres of beachfront
property in San Mateo County, located about 10 miles south of
Half Moon Bay, along Cabrillo Highway (also known as Highway 1.)
According to the author, the unique geography and tidal regime
of Martins Beach make it exceptionally valuable for surfing,
fishing, and swimming. As a practical matter, however, there is
no reasonable access to Martins Beach from other beaches to the
north or south because the sandy beach is sheltered by high
cliffs that stretch out into the Pacific Ocean, forming an
isolated cove. Unless one was to rappel down the cliffs, the
only access to the beach is by boat from the off-shore Pacific
Ocean tidelands to the west, or by the private Martins Beach
Road from the east, leading from the entrance on Highway 1 to
the beach.
According to the author, from early in the 20th century until
2008, public access via Martins Beach Road had been allowed for
recreational use. Martins Beach is a significant local coastal
resource that has been accessible to local residents and
visitors for more than 100 years. Under the former owners of
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the property, the Deeney family, Martins Beach was a popular
community beach used for picnicking, fishing, and surfing, among
other things. According to reports, the Deeneys opened a
general store on the property in the 1950's and charged a small
fee to the public for parking and access to the beach ($5 at the
time the property was sold in 2008.) (Surfers Lose Fight to
Access Half Moon Bay Beach; San Francisco Chronicle (Oct. 25,
2013).)
On July 22, 2008, the Martins Beach property was sold, and
ownership transferred to two limited liability companies
(hereafter "owner" or "Martins Beach, LLC"). After the
purchase, the gate to the access road was closed, cutting off
access to the beachfront, and security guards reportedly now
monitor the beach property. According to the author:
Californians are unable to access Martins Beach because the
only road leading to the beach has been closed by the land
owner who controls the property adjacent to the beach.
Current law allows the State Lands Commission to acquire the
road pursuant to Public Resources Code Section 6210.9;
however SLC has not indicated that they will exercise their
authority absent this legislation. Two court cases are
currently pending regarding Martin's Beach: one on whether
the land owner got the right permits for modifications to the
road; and one regarding public access at the beach. It could
be years before the public access issue is resolved unless a
short term solution is implemented.
This bill is necessary to provide a short term solution to
the public beach access problem at Martins Beach. It
requires SLC to enter into negotiations with the land owner
to try and reach a solution from Jan 1, 2015 to Jan 1, 2016.
Ideally the landowner would reopen the road for public access
prior to or during the negotiations, but the bill allows for
SLC to [acquire an easement or right-of-way] if those
negotiations fail, in order to ensure public access as soon
as possible.
Litigation against the owners of the Martins Beach property.
Following the closure of Martin's Beach Road, a group called the
Friends of Martins Beach sued the new landowner to re-establish
public access via the road. (See Friends of Martins Beach v.
Martins Beach 1, LLC, Civ-517634, San Mateo County Superior
Court.) Plaintiffs claim, under several legal theories, that
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the public has the right to traverse the owner's property to
access the beach. This case is currently on appeal after the
trial court ruled in favor of Martins Beach, LLC.
The Surfrider Foundation brought a second lawsuit challenging
the new owner's compliance with various provisions of the
California Coastal Act. (See Surfrider Foundation v. Martins
Beach LLC, et al., Civ-520336, San Mateo County Superior Court.)
Surfrider asserts that Martins Beach, LLC violated the Coastal
Act by not applying for a coastal development permit when
closing the road to the beach, among other things. This case is
currently pending in the trial court in San Mateo County.
Importantly, however, Committee staff finds that this bill, as
proposed to be amended, does not appear to impermissibly
interfere with pending litigation. First, this bill does not
seek to revise or amend any law at issue in either lawsuit
pending against Martins Beach, LLC, nor to decide an issue or
dispute pending before the court. Furthermore, neither lawsuit
challenges the State Land Commission's power to acquire a
right-of-way or easement for public use pursuant to its existing
authority under the Public Resources Code. Finally, this bill
is not retroactive and would not compromise the independence of
the judicial branch, nor circumvent its discretion to interpret
California law. By its terms, the bill pertains only to future
actions by the Commission, and does not attempt to attach "new
legal consequences to events completed before its enactment."
(Landgraf v. USI Film Products (1994), 511 U.S. 244, 269-70
(internal citations omitted).)
Existing law strongly protects the public right of access to
California's coast and beaches. The right of public access to
California's rivers, beaches, and waterways is enshrined in
Article X, Section 4, of the California Constitution. Section 4
declares that "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." Section 4 also
provides that "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." (Cal. Const., Art. X, Sec.
4.) With respect to the state's coastal resources (which
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includes beaches), the California Coastal Act of 1976 declares
that "the basic goals of the state for the coastal zone are . .
. to maximize public access to and along the coast and maximize
public recreational opportunities in the coastal zone consistent
with sound resource conservation principles and constitutionally
protected rights of private property owners." (Public Resources
Code Section 30001.5(c).)
To further these stated goals of guaranteeing public access to
the state's waterways and coastal areas, current law authorizes
the State Lands Commission, in the name of the state, to acquire
by purchase, lease, gift, exchange, or, if all negotiations
fail, by condemnation, a right-of-way or easement across
privately owned land or other land that it deems necessary to
provide access to public land, including school land, tide or
submerged lands, and lands subject to the public trust for
commerce, navigation, and fisheries, to which there is no access
available. (Public Resources Code Section 6210.9.)
To address the current lack of access to Martins Beach caused by
closure of the only access road, 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. First, the bill would direct the State Lands
Commission to negotiate with the owners of the property, Martins
Beach, LLC, to acquire a right-of-way or easement to ensure
public access to and along the shoreline of Martins Beach. The
bill clarifies that this directive in no way prohibits the
property owner from voluntarily providing public access upon
terms acceptable to the Commission. Contemplating that such
negotiation may take time to complete, the bill allows until
January 1, 2016 before requiring further action by the
Commission if the negotiations fail to produce an agreement
between the parties to create a public access route.
Proposed amendments to address concerns about eminent domain
have caused the owner of Martins Beach to withdraw opposition.
As currently in print, the bill provides that if by January 1,
2016, the Commission is unable to reach an agreement to acquire
a right-of-way or easement or the owners do not voluntarily
provide public access, then the commission must use the tool of
eminent domain, pursuant to Section 6210.9, to acquire a
right-of-way or easement to create public access. As noted
above, Section 6210.9 currently provides eminent domain powers
to the Commission to use, under certain circumstances, if
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negotiations have failed to secure a right-of-way or easement.
California's eminent domain law entitles the owner of property
to be acquired by eminent domain to just compensation, meaning
the fair market value of the property interest taken.
Prior to the author's proposed amendments to address the use of
eminent domain, California Strategies, representing the
landowner Martins Beach LLC, submitted a letter registering
opposition with the committee, contending, among other things,
that the use of eminent domain in this particular case is not
legally justified and would be inappropriate as a matter of
public policy. In its letter, the landowner asserts that the
State Lands Commission has jurisdiction and management control
only over public lands of the State that were received by the
State from the United States (citing Section 6210.9, providing
that if the Commission "has public land . . . to which there is
no access available, it may, in the name of the state, acquire .
. . a right-of-way or easement across privately owned land or
other land that it deems necessary to provide access to such
public land"), but that in this case there are no public lands
at Martins Beach. The owner states:
San Mateo County Superior Court Judge Gerald G. Buchwald
recently ruled that there is "no right of public access
or easement for the public to use or access the property
for any purpose whatsoever." . . . There are no existing
"public" lands to which access is needed and therefore
no authority to acquire a right-of-way or easement
across this private property. Thus, this would be a
terrible test case for legislation to require State
Lands Commission's first ever application of Eminent
Domain.
In light of these concerns and after discussions with the
stakeholders, the author proposes to amend the bill to no longer
direct the Commission to specifically use eminent domain to
acquire a right-of-way or easement to create access to Martins
Beach. Instead, the proposed amendments simply clarify that the
Commission shall acquire a right-of-way or easement pursuant to
its existing authority under Section 6210.9. On June 22, the
Committee was informed that the proposed amendments have caused
the owners of the Martins Beach property to withdraw their
opposition. As a result, at the time of this analysis, there is
no known opposition to the bill.
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The issue of public land at Martins Beach remains to be decided
by the courts, not by this bill. Committee staff notes that
although Judge Buchwald found no right of public access or
easement to allow access to Martins Beach in siding with Martins
Beach, LLC, the trial court's decision in the Friends of Martins
Beach case is in the process of being appealed, and the issue of
whether there is public land at Martins Beach to which the
public has a right of access remains an open question at this
time. According to the analysis of the Assembly Natural
Resources Committee:
The trial court in the Friends of Martins Beach case based
one of its findings on an unprecedented and questionable
holding in which it claimed, without supporting authority,
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. However, 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 . . .
This distinction between the Constitution and the public
trust is significant because the trial court mistakenly
relied on a 1984 U.S. Supreme Court decision on the public
trust doctrine to determine the applicability of the
constitutional provision on public access.
However, the Friends of Martins Beach case is about public
access, not whether the tide and submerged lands are
subject to the public trust doctrine. But since the trial
court held that the constitutional provision on public
access codifies the public trust doctrine, the court
mistakenly used the U.S. Supreme Court decision to find
that the public access provision has no jurisdiction over
Martins Beach. If the appellate court overturns the trial
court's decision on this issue, then the focus will likely
be on what kind of impact the public access provision of
the Constitution has on the Martins Beach property.
For the reasons stated earlier, it does not appear that the bill
impermissibly impacts pending litigation, including appeal of
the Friends of Martins Beach case. California Strategies, on
behalf of the owner, notes however, that if the trial court's
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decision is ultimately upheld to establish that the sandy
beachfront area at Martins Beach is indeed private and not
public, that would likely establish the boundary of the public
land to begin at a point offshore, completely submerged
underwater rather than at the sandy beachfront area where
beachgoers typically intend to picnic, sunbathe, and use the
beach. Although that outcome to the pending litigation would
have no bearing on the legality of the changes to law proposed
by this bill, the owner's representative contends that, should
this bill become law, it could produce the peculiar outcome that
the Commission would be required to obtain a right-of-way or
easement to a site where the only public "land" to which the
public has the right to access is submerged lands starting 10 or
20 feet offshore, rather than the beach which is the main
attraction of the site to the public.
ARGUMENTS IN SUPPORT : The bill is supported by a number of
coastal, environmental, and recreation-based advocacy groups,
all of whom strongly advocate for unfettered public access to
California beaches and coastal resources. These advocates,
including the Sierra Club, Surfrider Foundation, and the
California Coastal Protection Network, state in support:
Martin's Beach, like all other beaches below the mean
high tide line, as provided by Public Trust Doctrine, is
a public beach held in trust by the State of California
for the people of California. Section 4 of Article X of
the California Constitution mandates that no individual
shall be permitted to exclude the right of way to coastal
waters of the state whenever it is required for any
public purpose and, further, that "the Legislature shall
enact such laws as will give the most liberal
construction to this [beach access] provision, so that
access to the navigable waters of this State shall be
always attainable for the people thereof." Therefore,
the State has an interest in ensuring public access to
Martin's Beach.
Efforts by other parties to negotiate with the property
owner or even discuss the potential for addressing the
access closure have not been successful to-date. This
bill would provide further impetus for the property owner
to engage in such a discussion and would ensure that a
resolution to the beach access closure is reached.
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ARGUMENTS IN OPPOSITION : Before the author's proposed
amendments, the bill was opposed by California Strategies &
Advocacy, LLP, on behalf of its client, the owner of the Martins
Beach property. In their opposition letter, the owner's
representative objected to the bill's directive to use eminent
domain for a number of reasons, as reflected below:
We are writing to express our strong opposition to SB 968
as currently drafted. The current version of the bill
includes the unprecedented use of condemnation or Eminent
Domain" for a property in active litigation. Eminent
Domain for taking right-of-way or easement across private
land for public access has never been exercised by State
Lands Commission since receiving the authority in 1975.
Martins Beach would be a terrible test case for using
Eminent Domain because the beach seaward of mean
high-tide line and the submerged lands at Martin's Beach
are completely private as the property derives from a
Mexican Land Grant, unlike the other 1,100 mile of public
lands to access along the California coast.
In addition, the costs associated with exercising Eminent
Domain pursuant to SB 968 would be tens of millions of
dollars, not "hundreds of thousands or low millions of
dollars," as stated in previous committee analyses. There
are no identified funding sources to acquire an easement
and/or right-of-way, to improve the property, to operate
and maintain the property, or to cover the high liability
costs. . . Tens of millions of dollars could exceed
currently available funds for State Lands statewide, and
would hinder other public land priorities statewide and
the shortfall funding would presumably need to come from
the General Fund. There is no allocation, however, to
cover these high upfront and ongoing costs to the State.
Furthermore, it is premature for the state lawmaking
process to apply Eminent Domain on a unique property in
active litigation. This site has complex, site-specific
property rights, which are unique to this parcel, are
better addressed by the current legal process and genuine
negotiations-not forced discussions under the shadow of
the unprecedented application of Eminent Domain.
We respectfully request amending the bill to remove
"Eminent Domain" and the unprecedented use of
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condemnation, especially while active litigation is
currently underway. The inclusion of Eminent Domain will
setback the process and will potentially force legal
elevation that will cause delay and likely result in
legal precedent that hinders coastal access beyond
Martins Beach.
As stated above, the Committee was informed on June 22 that the
proposed amendments have caused the owners of the Martins Beach
property to withdraw their opposition. As a result, at the time
of this analysis, there is no known opposition to the bill as
proposed to be amended.
REGISTERED SUPPORT / OPPOSITION :
Support
Black Surfers Collective
California Coastal Commission
California Coastal Protection Network
California League of Conservation Voters
Coastside Beach Coalition
Committee for Green Foothills
County of San Mateo
Environment California
Environmental Action Committee of West Marin
Ocean Conservancy
Save the Waves Coalition
Sierra Club California Coastal Committee
Surfrider Foundation
WildCoast
Opposition (to previous version of the bill)
California Strategies & Advocacy, LLP
(on behalf of Martins Beach, LLC, the owners of the Martins
Beach property)
Opposition (as proposed to be amended)
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
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