It’s the law: A day at the beach
by Gary Redenbacher
Feb 16, 2012 | 839 views | 0 0 comments | 7 7 recommendations | email to a friend | print

There are good reasons why people want to live in Santa Cruz County — a moderate climate, clean air, mountains, redwoods and, of course, the beach.

Although it seems inconceivable to us today, there was a time when living right next to the ocean was considered undesirable. That was because the harsh salt air and full exposure to storms wreak havoc on buildings.

At some point, however, living right on the ocean became a status symbol and, sure enough, people started purchasing as much beach as they could. Unfortunately, a number of beachfront owners also did all they could to exclude the public.

Perhaps the most extreme example of a beach owner trying to exclude the public was when Barbara Streisand sued an aerial photographer for invasion of privacy when he took photos of the coastline that happened to include Streisand’s beachfront estate. The judge didn’t think too highly of Babs’ lawsuit, although it was decided on First Amendment grounds, rather than the right of the public to access the beach.

Like most states, California has a longstanding policy favoring the use of land. Thus, if someone bought beachfront property across which the public had long used a trail to get to the beach, the law held that the owner had dedicated that trail for the public benefit. Both the Legislature and the courts viewed this policy as highly beneficial to the vast majority of the population, while being only mildly burdensome to a few owners. Not everyone is in agreement, though, and a famous case — out of Santa Cruz, natch — changed the landscape of implied dedications for the benefit of the public.

In that case, called Gion v. City of Santa Cruz, the city had for decades used some privately owned lots on the beach for parking. The lots are on the beach side of West Cliff Drive between Woodrow and Columbia. Nothing has ever been built on these lots, nor could anything realistically be built on them. If you go down there today, you’ll see a couple of parking lots before the cliff drops off to the ocean.

For 60 years, the owners allowed full access and use by the public. But in the late ’50s, a new owner, Gion, bought the land and objected to its use by the city and the public. He took the case all the way to the California Supreme Court, which stated that privately owned land that is used by the public for a long period of time without objection by the owner constitutes an implied dedication of that use to the public.

This had actually been the law for a very long time. I suspect, however, that because this involved the government arguing to use privately owned land, it struck a chord with property rights advocates. In response, the Legislature passed a law that says public use that begins after 1972 cannot ripen into a public dedication.

There is, however, one very notable exception: This law, for the most part, doesn’t apply to land near the ocean or its bays and estuaries.

This carve-out might well be because the California Constitution 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..." (Article XV, § 2.). (There is also a U.S. Constitutional right to all navigable waters in the United States, but that is a slightly different issue.) The California Coastal Act also stresses the importance of beach access to the public and requires it under certain circumstances.

One would think that such a proscription would give anyone pause in restricting beach access. Not so.

Three or four years ago, a limited liability corporation whose chief member is reportedly Vinod Khosla, a venture capitalist in Silicon Valley, bought the property inland of Martin’s Beach south of Half Moon Bay and promptly gated off the road to the beach. The previous owners had provided access for decades for a small fee. Despite warnings of penalties of as much as $15,000 per day from the Coastal Commission, inquiries from Anna Eshoo and demands from San Mateo County to unlock the gate, the road has remained locked.

Those demands, however, are not based upon the Constitution. Curiously, the Constitutional right has never been interpreted for a case like this. Although the language seems plain enough, you never know how a court might interpret it.

Still, it appears that it is going to take an order from the court to allow the public back on the beach. So, that’s what we’re going to do. Stay tuned. I hope that in the near future, all of you can join me for a sunny day on the beach — Martin’s Beach.

- Gary Redenbacher of Scotts Valley is an attorney in private practice. Email him at gary@redbrownlaw.com.

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