4 ms·

Is the question here not that Public Access if guaranteed constitutionally, but whether a single citizen should bear the cost of the public having to go through

Is the question here not that Public Access if guaranteed constitutionally, but whether a single citizen should bear the cost of the public having to go through his property to access the beach? I can't tell what the Constitution says about which path the public must use to access a beach. Is it the case that the State or municipalities failed to secure or purchase property to build a path, and now want a single citizen to pay for this path?

johnmarcus 9y ago
"e had been warned by San Mateo County and the California Coastal Commission – before and after buying the property – that he would be required to keep the public access open. Public access to Martins Beach, and to all land seaward of the mean high tide line in California, is guaranteed in the state’s constitution and mandated within the Coastal Act of 1976."
- hyperliner 9y ago
  I had read that too. It's clear that the beaches are public. But I would not trust a government employee. It's unclear to me that the Constitution guarantees my right to cross anybody's private property to access the public beach. Why can't people go through other properties doors, climb fences, etc. to enjoy the right to use a public beach? Why is this path considered public property, when it is clearly private? I think this is the issue.
  - djrogers 9y ago
    It’s a simple easement issue. If he wanted to create a new path for he public to access the beach, then nobody would care if he closed this one. It’s not as if this was an after-the-fact decision, the public access path existed when he bought the property, as did the existing law and state constitution. His responsibility as a property owner there is to maintain that public access.
  - ScottBurson 9y ago
    "An easement is a non-possessory right to use and/or enter onto the real property of another without possessing it." https://en.wikipedia.org/wiki/Easement https://en.wikipedia.org/wiki/Easement
  - mattkrause 9y ago
    > But I would not trust a government employee. That isn't really a choice. You can either going along with what the employee says, or a) appeal their decision b) change the law, or c) abide the consequences. They also presumably have records. As for why this path, California has a prescriptive right of access--if people have customarily accessed the beach through this path (for 5 years, I think), then they are permitted to continue doing so. The California Constitution also doesn't just make the beaches public, but explicitly provides for public access to them: 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 and the Legislature shall enact such law as will give the most liberal construction to this provision so that access to the navigable waters of this state shall always be attainable for the people thereof.
    - hyperliner 9y ago
      Very useful. Is the issue then that there is a discrepancy between property rights and access rights that needs the CA Supreme Court to resolve? The Denny's (previous owners) used to CHARGE for access to the beach, presumably supporting the case that access through this path is not a right. Source: "Joan Gallo, a former San Jose city attorney who represents the land owner, agreed that the courts should weigh in. The Deeneys had run a private business, she said, allowing invitees of their choosing onto the property, and that hadn't changed. "It seems to us that it's an important issue to be litigated," Gallo said. "I have a strong belief that the Constitution doesn't require you to give up property rights or conduct a business you don't want to conduct." Mark Massara — a surfer and attorney who is working with McClosky and the law firm Cotchett, Pitre & McCarthy on the case — said he believed the constitutional arguments have merit. But since that approach could drag on for years (think Geffen), his team opted for "a very narrow strike to the heart of this thing."
      - mattkrause 9y ago
        It's not totally clear to me when a fee can be charged (or who can charge it), but it's possible that the fee covered land beyond the mean high water mark or amenities, parking or something like that.

johnmarcus 9y ago

"e had been warned by San Mateo County and the California Coastal Commission – before and after buying the property – that he would be required to keep the public access open. Public access to Martins Beach, and to all land seaward of the mean high tide line in California, is guaranteed in the state’s constitution and mandated within the Coastal Act of 1976."

hyperliner 9y ago
I had read that too. It's clear that the beaches are public. But I would not trust a government employee. It's unclear to me that the Constitution guarantees my right to cross anybody's private property to access the public beach. Why can't people go through other properties doors, climb fences, etc. to enjoy the right to use a public beach? Why is this path considered public property, when it is clearly private? I think this is the issue.
- djrogers 9y ago
  It’s a simple easement issue. If he wanted to create a new path for he public to access the beach, then nobody would care if he closed this one. It’s not as if this was an after-the-fact decision, the public access path existed when he bought the property, as did the existing law and state constitution. His responsibility as a property owner there is to maintain that public access.
- ScottBurson 9y ago
  "An easement is a non-possessory right to use and/or enter onto the real property of another without possessing it." https://en.wikipedia.org/wiki/Easement https://en.wikipedia.org/wiki/Easement
- mattkrause 9y ago
  > But I would not trust a government employee. That isn't really a choice. You can either going along with what the employee says, or a) appeal their decision b) change the law, or c) abide the consequences. They also presumably have records. As for why this path, California has a prescriptive right of access--if people have customarily accessed the beach through this path (for 5 years, I think), then they are permitted to continue doing so. The California Constitution also doesn't just make the beaches public, but explicitly provides for public access to them: 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 and the Legislature shall enact such law as will give the most liberal construction to this provision so that access to the navigable waters of this state shall always be attainable for the people thereof.
  - hyperliner 9y ago
    Very useful. Is the issue then that there is a discrepancy between property rights and access rights that needs the CA Supreme Court to resolve? The Denny's (previous owners) used to CHARGE for access to the beach, presumably supporting the case that access through this path is not a right. Source: "Joan Gallo, a former San Jose city attorney who represents the land owner, agreed that the courts should weigh in. The Deeneys had run a private business, she said, allowing invitees of their choosing onto the property, and that hadn't changed. "It seems to us that it's an important issue to be litigated," Gallo said. "I have a strong belief that the Constitution doesn't require you to give up property rights or conduct a business you don't want to conduct." Mark Massara — a surfer and attorney who is working with McClosky and the law firm Cotchett, Pitre & McCarthy on the case — said he believed the constitutional arguments have merit. But since that approach could drag on for years (think Geffen), his team opted for "a very narrow strike to the heart of this thing."
    - mattkrause 9y ago
      It's not totally clear to me when a fee can be charged (or who can charge it), but it's possible that the fee covered land beyond the mean high water mark or amenities, parking or something like that.