After an 18-month showdown with billionaire venture capitalist Vinod Khosla, environmental activist Mark Massara finally surfed again Sept. 25 on his beloved Martins Beach in Northern California.
“Surfers have been calling me from around the state,” Massara jubilantly told India-West, shortly after a court ruling was handed down Sept. 24 mandating that Khosla reopen the popular beach. He noted that the Indian American VC was likely to appeal the decision, but added: “Regardless of what happens, the beach has to open tomorrow. We are thrilled that the judge agreed with us.”
Massara is the lead counsel for the Surfrider Foundation, which filed a lawsuit against Khosla in March 2013, saying the legendary entrepreneur had failed to obtain a “Coastal Development Permit” with the California Coastal Commission and San Mateo County to change “intensity of use” at the beach or access. All beaches in California must be accessible to the public up to the mean tide line, according to the California Coastal Commission.
In her ruling, San Mateo, Calif., Superior Court Judge Barbara Mallach mandated Khosla to reopen access to Martins Beach, which has been home to fishermen, picnicking families and surfers for several decades; the former owners – the Deeney family – had allowed access to the beach with a fee for parking.
Khosla bought the property above Martins Beach in 2008 for $32.5 million, and two years later, locked the gate to a small road which provided the only access to the beach. Signs came up warning trespassers and security guards roamed the beach, prohibiting wanderers.
Mallach found that Khosla had not obtained the required permits, despite multiple notices from the Coastal Commission and San Mateo County. In court last May, Khosla testified that his property manager would have handled such matters. Steven Baugher, property manager for MartinsBeach, admitted in court that he had in fact locked the gate and put up trespassing signs without obtaining a CDP.
Khosla had earlier argued he did not need a permit since he was not developing the land.
But Mallach ruled that “changing the intensity of use” – even though there was no use – and prohibiting access to the water did constitute development, which required a permit from the Coastal Commission.
In the lawsuit, the Surfrider Foundation asked that Khosla be subjected to fines of $15,000 per day for not obtaining the required permit. Such fines would have amounted to more than $20 million. But Mallach did not impose the fine. Massara told India-West the Foundation is now determining whether to appeal that portion of the ruling.
Khosla’s attorneys – Jeffrey Essner and Dori Yob – said in a press statement: "We are disappointed with the court's decision and will consider our options for appealing the ruling.”
“We will continue to seek protection of the constitutional rights of private property owners that are guaranteed by the U.S. and California Constitutions and that have long been upheld by the United States and California Supreme Courts,” said Essner and Yob in the statement.
Attorney Joe Cotchett, whose firm represents the Surfrider Foundation, said in a statement issued after the ruling: “Today’s decision is a huge victory for all of the people of California. It affirms that great wealth cannot be used to circumvent and ignore the law. Everyone can again visit Martins Beach.”
In a related matter, Governor Jerry Brown must sign off or veto legislation by Sept. 30 that would require the State Lands Commission to purchase from Khosla the private road leading down to the beach. If the governor fails to sign or veto the bill by the end of the month, the legislation would die.
California state Senator Jerry Hill, who authored the bill, had first called for the state to seize the small road via eminent domain, but the legislation was watered down as it passed through the Senate and Assembly. Critics of the bill say purchasing the land would cost the state millions of dollars.
Hill’s bill, SB 968, has generated an immense amount of lobbying from Khosla and environmental activists.