Surfrider Found. v. Martins Beach 1, LLC

Decision Date09 August 2017
Docket NumberA145176,A144268
Citation14 Cal.App.5th 238,221 Cal.Rptr.3d 382
CourtCalifornia Court of Appeals Court of Appeals
Parties SURFRIDER FOUNDATION, Plaintiff and Respondent, v. MARTINS BEACH 1, LLC et al., Defendants and Appellants.

Bancroft, Paul D. Clement, Erin E. Murphy ; Hopkins and Carley, Jeffrey E. Essner, Allonn E. Levy, and Dori L. Yob, San Jose, for Defendants and Appellants.

J. David Breemer, Sacramento, and Raymond J. Nhan for Pacific Legal Foundation, California Farm Bureau Federation, California Cattlemen's Association, Western Manufactured Housing Communities Association, California Association of Realtors, and California Business Properties Association as Amici Curiae on behalf of Defendants and Appellants.

Cotchett, Pitre & McCarthy, Joseph W. Cotchett, Eric Buescher, Burlingame; Mark A. Massara, San Francisco; Law Office of Herb Fox and Herb Fox, Los Angeles, for Plaintiff and Respondent.

Kamala Harris, Attorney General, John Saurenman, Senior Assistant Attorney General, Christiana Tiedmann, Deputy Attorneys General; John C. Beiers and Joel Jacobs, County Counsel (San Mateo), John D. Nibbelin, Chief Deputy County Counsel, Kimberly A. Marlow, Deputy County

Counsel for California Coastal Commission and County of San Mateo as Amici Curiae on behalf Plaintiff and Respondent.

Environmental Law Clinic Mills Legal Clinic at Stanford Law School, Deborah A. Sivas, Alicia E. Thesing, Elizabeth Jones, Newport Beach, and Elizabeth M. Vissers for Coastwalk California as Amicus Curiae on behalf of Plaintiff and Respondent.

SIMONS, Acting P.J.Nestled in a cove, sheltered on the north and south by high cliffs, Martins Beach lacks lateral land access.1 The only practical route to Martins Beach is down a road, known as Martins Beach Road, that leads from Highway 1 in San Mateo County to the beach.

Appellants are two LLCs, Martins Beach 1, LLC and Martins Beach 2, LLC, that purchased Martins Beach and adjacent land including Martins Beach Road in July 2008. Respondent Surfrider Foundation (Surfrider) is a non-profit organization dedicated to the protection of oceans, waves, and beaches, including the preservation of access for recreation. A year or two after purchasing Martins Beach, appellants closed off the only public access to the coast at that site. Surfrider brought suit against appellants. The trial court held the California Coastal Act ( Pub. Res. Code, §§ 30000 – 30900 ) (Coastal Act)2 applied to the conduct of appellants, and they were required to apply for a coastal development permit (CDP) before closing public access. The court also issued an injunction that requires appellants to allow public coastal access at the same level that existed when appellants bought the Martins Beach property in 2008. We affirm the trial court's conclusion appellants' conduct is "development" requiring a CDP under section 30106 of the Coastal Act. Further, we conclude appellants' constitutional challenge to the Coastal Act's permitting requirement under the state and federal takings clauses is not ripe, and we reject appellants' contention that the trial court's injunction is a per se taking. Finally, we affirm the trial court's award of attorney fees to Surfrider.

BACKGROUND

Before appellants purchased Martins Beach, the public was permitted to access the coast by driving down Martins Beach Road and parking along the coast, usually upon payment of a fee. Public access was only permitted during the daytime, and access in the winter varied based on the weather.3

A table (10.1) attached to San Mateo County's 1998 Local Coastal Program policiesmanual indicates that, while Martins Beach is privately owned, there is public access to the water and a high level of existing use. Prior to appellants' purchase of the Martins Beach property, appellants were told by San Mateo County that "[t]here is existing parking [and] access to the beach at Martins Beach. This access [is] also memorialized [and] required to be preserved (no exceptions) by the Local Coastal Program" and "the access is there & will have to remain."

Following the purchase of Martins Beach in July 2008, appellants continued to allow the public to access the coast upon payment of a parking fee. From July 2008 to September 2009, numerous vehicles paid the fee to access the coast.4 Appellants stopped allowing public access in September 2009.5 They closed the gate (requiring a remote control or key to open it), put a no-access sign on the gate, and painted over a billboard at the entrance to the property that had advertised access to the beach.

Prior to this complete closure, on February 6, 2009, the San Mateo County Planning and Building Department had sent appellants an "Informational Warning Letter" that, among other things, referenced observations that the gate allowing access to Martins Beach was closed and the billboard advertising access had been painted over. The County requested a schedule of operation and an explanation "of how the schedule relates to historic patterns of public use," to allow a determination of whether future beach closures "would trigger the need for a CDP." The County asserted that "any change in the public's ability to access the shoreline at Martins Beach triggers the need for a CDP because it represents a ‘change in the intensity of use of water or access thereto.’ " (See § 30106.) On February 9, appellants responded, informing the County they "voluntarily intended to maintain the same amount and type of access as did our predecessors." Appellants also stated the beach was usually closed in winter and they considered the public "invited guests."

In April 2009, the County responded to appellants' February letter, again asserting appellants were required to apply for a CDP before changing the public's access to Martins Beach. Among other things, the County requested additional information regarding the history of public access, referencing publications stating the public previously had year-round access to Martins Beach. In May, appellants again informed the County they would "provide access to the extent it was provided by the" prior owners, but appellants asserted they were not legally obligated to do so. Appellants also offered to "provide [the County] with affidavits" to support their contentions about the circumstances under which access and use had historically existed.

In June 2009, appellants filed a lawsuit against San Mateo County (the County) and the California Coastal Commission (the Coastal Commission), seeking a declaration that, among other things, they were not required to maintain public access to Martins Beach. In October, the trial court in the case sustained the defendants' demurrers without leave to amend, concluding appellants were obligated to "comply with the administrative process provided by the" Coastal Act before seeking a judicial determination of their rights.

In September 2009, appellants stopped allowing the public access to the coast at Martins Beach. Appellants did not apply for a CDP allowing them to do so.

In September 2011, the Coastal Commission sent appellants a letter asserting, among other things, that "the erection of beach closure signs ... as well as the permanent closure of an existing gate ... [at Martins Beach] would constitute development under the Coastal Act" and San Mateo County's Local Coastal Plan. In November, San Mateo County sent appellants a letter entitled in part, "Notice of Preliminary Determination of Violation." The letter asserted appellants' "closure of the coastal access" at Martins Beach was unlawful because appellants did not obtain a CDP. In December, appellants responded, arguing the beach closure was not a violation of the Coastal Act. Appellants asserted, "the road on Martins Beach is not subject to any access easement or any condition of any permit, but, rather, has historically been available to the public permissively at the voluntary election and sole discretion of the property owner." The parties do not refer to further enforcement efforts by the County or the Coastal Commission relating to closure of public access to Martins Beach.

In October 2012, an unincorporated association going by the name "Friends of Martin's Beach" filed a lawsuit against appellants seeking access to the coast at Martins Beach based on claims including a constitutional right of access or an express dedication of access. (Friends of Martin's Beach v. Martins Beach 1, LLC, et al. (Super. Ct. San Mateo County, CIV517634).) The trial court in that case entered summary judgment in favor of appellants, concluding Martins Beach is private property not subject to any right of public access. The plaintiff appealed, and Division 2 of this court reversed in part. (Friends of Martin's Beach v. Martin's Beach 1 LLC (Apr. 27, 2016, A142035) review den. and opn. ordered nonpub. July 20, 2016.) As relevant here, the court of appeal held the plaintiff had "alleged facts sufficient to state a common law dedication claim" and appellants had "not shown that as a matter of law they are entitled to judgment" on the claim. (Id . at p. 45.) The court of appeal remanded for trial on the dedication claim. (Id. at p. 51.) The Friends of Martin's Beach case is still pending in the trial court; accordingly, the existence of public access rights to Martins Beach is presently undetermined.

In March 2013, Surfrider filed the present action. The complaint alleged appellants engaged in "development" (§ 30106) within the meaning of the Coastal Act by closing public access to the coast at Martins Beach. The complaint alleged appellants closed the gate to Martins Beach Road, added a sign to the gate stating "BEACH CLOSED KEEP OUT," covered over another sign that had advertised public access, and stationed security guards to deny public access. The complaint sought a declaration that appellants' conduct constituted development under the Coastal Act requiring a CDP, injunctive relief, imposition of fines, and an award of attorney fees...

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