7 ms·

Can someone explain how he ever hoped to win this? The law seems pretty clear. In California, the public owns beaches up to the high tide line. Is there some ex

by pilom 9y ago

Can someone explain how he ever hoped to win this? The law seems pretty clear. In California, the public owns beaches up to the high tide line. Is there some exception that the lawyers were betting on?

djrogers 9y ago
I don't think he was ever technically fighting that law, it was the access to that public beach through his property that he blocked off. So basically - "Look, that beach is public, you just can't walk on my property to get to it. Oh, and my property is the only way to get to it. Sorry!"
- abritinthebay 9y ago
  Doesn't quite work that way. He's locking a public right of access (that's been used that way for 100 years). At that point it's a legal public byway. Kind of how easements etc are. He's allowed to have a gate, but he can't actually block access. He also knew this when he bought the place.
  - alasdair_ 9y ago
    I'm surprised no member of the public has shown up with boltcutters yet and told his security people to fuck off.
    - abritinthebay 9y ago
      I think that DID happen initially but it’s technically vandalism. Of course hopping the gate isn’t illegal so...
- kafkaesq 9y ago
  I don't think he was ever technically fighting that law, it was the access to that public beach through his property that he blocked off. Yet there's a near universal consensus that "the law" (i.e. the founding statutes regarding access to coastal properties, from the time California entered the Union) mandates that this access must be maintained, for perpetuity, by whoever takes title to the property. So in effect there's a permanent easement attached to the property (even if the term as such didn't appear in the text of the original statues).
option 9y ago
Money. As I understand it, he can just continue to pay the fine. So, in practice, the law (at least this one) is not for him. There are things we can do - if you are in SV, let this be known in your circles. If you are in CA - let your representative know that this is of concern to you
- salgernon 9y ago
  privilege Middle English, from Anglo-French, from Latin privilegium law for or against a private person, from privus private + leg-, lex law So as long as he pays the fine, he gets his own law? I take it the fine doesn't have an exponential growth penalty.
- slaymaker1907 9y ago
  That's just asking for eminent domain to be declared.
ChuckMcM 9y ago
Because money? He made a long convoluted argument that the property was part of a Mexican land grant that pre-dated the California law and thus was not covered. I gave it high marks for creativity, I half expected him to declare he was genetically part native american and he was going to claim the beach as part of his ancestral birthright. He is running out of options though, the only one left that I can think of is that the law says you have to provide access but it doesn't have to be easy access. I could imagine some pretty complex access mechanisms.
- rosstex 9y ago
  Hedge maze? Rock wall? Lion chained to a post? Big fans to blow sand on beachgoers? Or maybe he floods it and builds a long deck over it?
  - pilom 9y ago
    "Just call this number and give an exact time at least 36 hours from now when you will be at the gate. At that time, you will be escorted to the beach. If you are late, you will need to reschedule"
- jjeaff 9y ago
  I think the courts are already siding on "easy" access being the only option. Because the beach is still accessible without his road access. It is just a mile or so walk over not the best terrain to get there. So access already exists. It's the "easy" part they are fighting over.
- riku_iki 9y ago
  There is 17 miles drive near Monterey, which requires you to pay 10 dollars per car for beach access. Can he do something like that?
  - plussed_reader 9y ago
    That was the original setup for the stretch of coast in question; free access, but you had to pay a small fee for parking.
deleted 9y ago
[deleted]
rayiner 9y ago
For now, the posture is weird. The parties are fighting over whether closing up the existing beach access is a "development" that requires a Coastal Development Permit ("CDP"). The appellate court confirmed that it is and that Khosla closed up the existing access without the required permit. The Constitutional issue is whether it's a taking to force Khosla to provide the level of access that the State wants. While it's clear that the State owns the land up to the mean high tide line, what it actually wants here is for Khosla to maintain the existing public access. That not only includes a pathway to the public shore, but access to the sandy beach, the existing provision of parking, etc. Khosla asserted the Constitutional issue, but the appellate court ruled that it was not yet ripe. In other words, Khosla can't argue there was a taking until the State actually denies his permit to close up the beach access. (The theory is that there is no reason to resolve a Constitutional question until we actually see what position the State takes.) I think Khosla is actually right on the Constitutional point--if the State does make him keep the existing beach access (parking and all) that's a taking. That said, Khosla had full notice of what the State wanted before he bought the property. He basically tried to arbitrage on the fact that other potential buyers wouldn't engage in an extended legal battle with California to exercise the full extent of their private property rights. If he loses on that arbitrage bid, he'll have deserved it.
- Analemma_ 9y ago
  IANAL, but is it really a "taking" if the state wants him to maintain the existing level of access that the previous owner provided? At that point the public access seems to be implicitly part of the property he purchased and nothing is being expropriated.
  - kafkaesq 9y ago
    IANAL, but is it really a "taking" if the state wants him to maintain the existing level of access that the previous owner provided? No, of course not. And that's the whole point that's been finally upheld by the Court.
- ubernostrum 9y ago
  The Constitutional issue is whether it's a taking to force Khosla to provide the level of access that the State wants. While it's clear that the State owns the land up to the mean high tide line, what it actually wants here is for Khosla to maintain the existing public access. Easements and rights-of-way that stay with the property are not new, not unusual, and not generally something you can get wiped out by stomping your feet and yelling that it's a taking. And the specific case of property rights ending at a specific tide line, and public access being guaranteed, exists widely and non-controversially in US states which have tidal coasts, and even where not explicit via statute has precedent running back in the common law to pre-independence times and ultimately at least as far back as the laws of the Byzantine empire. Dude's not gonna get a judgment in his favor; his plan is pretty clearly to just keep locking it up, paying the fine, locking it up, paying the fine, until somebody buys the property from him, he runs out of money, or he dies of old age.
kafkaesq 9y ago
Can someone explain how he ever hoped to win this? One could say it's because the guy's basically a nutjob of sorts. But that's be oversimplifying (if ever so slightly). The more nuanced explanation is that -- like a lot of rich techies -- he apparently subscribes to an intellectual culture that believes that now matter what written laws say -- states and other governmental entities actually have limited legitimacy, and in effect are fundamentally subordinate to "common" or "natural" law. Specifically when it comes to the "rights" of owners of real property. So just because the law says something -- something silly about a requirement to grant the unwashed public "access" to a plot of land that, after all, you bought and paid for -- as the land owner, you really don't need to pay any attention to it. Or if you want to be a big craftier, you can just say "I don't like this current jurisdiction's laws, and I'd prefer to respect the laws of its (for some 150+ years) vanquished predecessor instead." So if people come after you in the courts -- hey, if you can afford lawyers sufficiently skilled so as to bamboozle either the justices in the jury with lofty-sounding talk about how, actually, the chain-of-title goes all the way back the land grants made by the Mexican Empire (and hence, you only have to worry about what its laws say about any requirements for public beach access) -- then more power to you. Which is actually the route Khosla took in this case.

by pilom 9y ago

djrogers 9y ago

I don't think he was ever technically fighting that law, it was the access to that public beach through his property that he blocked off. So basically - "Look, that beach is public, you just can't walk on my property to get to it. Oh, and my property is the only way to get to it. Sorry!"

abritinthebay 9y ago
Doesn't quite work that way. He's locking a public right of access (that's been used that way for 100 years). At that point it's a legal public byway. Kind of how easements etc are. He's allowed to have a gate, but he can't actually block access. He also knew this when he bought the place.
- alasdair_ 9y ago
  I'm surprised no member of the public has shown up with boltcutters yet and told his security people to fuck off.
  - abritinthebay 9y ago
    I think that DID happen initially but it’s technically vandalism. Of course hopping the gate isn’t illegal so...
kafkaesq 9y ago
I don't think he was ever technically fighting that law, it was the access to that public beach through his property that he blocked off. Yet there's a near universal consensus that "the law" (i.e. the founding statutes regarding access to coastal properties, from the time California entered the Union) mandates that this access must be maintained, for perpetuity, by whoever takes title to the property. So in effect there's a permanent easement attached to the property (even if the term as such didn't appear in the text of the original statues).

option 9y ago

Money. As I understand it, he can just continue to pay the fine. So, in practice, the law (at least this one) is not for him. There are things we can do - if you are in SV, let this be known in your circles. If you are in CA - let your representative know that this is of concern to you

salgernon 9y ago
privilege Middle English, from Anglo-French, from Latin privilegium law for or against a private person, from privus private + leg-, lex law So as long as he pays the fine, he gets his own law? I take it the fine doesn't have an exponential growth penalty.
slaymaker1907 9y ago
That's just asking for eminent domain to be declared.

ChuckMcM 9y ago

Because money? He made a long convoluted argument that the property was part of a Mexican land grant that pre-dated the California law and thus was not covered. I gave it high marks for creativity, I half expected him to declare he was genetically part native american and he was going to claim the beach as part of his ancestral birthright. He is running out of options though, the only one left that I can think of is that the law says you have to provide access but it doesn't have to be easy access. I could imagine some pretty complex access mechanisms.

rosstex 9y ago
Hedge maze? Rock wall? Lion chained to a post? Big fans to blow sand on beachgoers? Or maybe he floods it and builds a long deck over it?
- pilom 9y ago
  "Just call this number and give an exact time at least 36 hours from now when you will be at the gate. At that time, you will be escorted to the beach. If you are late, you will need to reschedule"
jjeaff 9y ago
I think the courts are already siding on "easy" access being the only option. Because the beach is still accessible without his road access. It is just a mile or so walk over not the best terrain to get there. So access already exists. It's the "easy" part they are fighting over.
riku_iki 9y ago
There is 17 miles drive near Monterey, which requires you to pay 10 dollars per car for beach access. Can he do something like that?
- plussed_reader 9y ago
  That was the original setup for the stretch of coast in question; free access, but you had to pay a small fee for parking.

deleted 9y ago

[deleted]

rayiner 9y ago

For now, the posture is weird. The parties are fighting over whether closing up the existing beach access is a "development" that requires a Coastal Development Permit ("CDP"). The appellate court confirmed that it is and that Khosla closed up the existing access without the required permit. The Constitutional issue is whether it's a taking to force Khosla to provide the level of access that the State wants. While it's clear that the State owns the land up to the mean high tide line, what it actually wants here is for Khosla to maintain the existing public access. That not only includes a pathway to the public shore, but access to the sandy beach, the existing provision of parking, etc. Khosla asserted the Constitutional issue, but the appellate court ruled that it was not yet ripe. In other words, Khosla can't argue there was a taking until the State actually denies his permit to close up the beach access. (The theory is that there is no reason to resolve a Constitutional question until we actually see what position the State takes.) I think Khosla is actually right on the Constitutional point--if the State does make him keep the existing beach access (parking and all) that's a taking. That said, Khosla had full notice of what the State wanted before he bought the property. He basically tried to arbitrage on the fact that other potential buyers wouldn't engage in an extended legal battle with California to exercise the full extent of their private property rights. If he loses on that arbitrage bid, he'll have deserved it.

Analemma_ 9y ago
IANAL, but is it really a "taking" if the state wants him to maintain the existing level of access that the previous owner provided? At that point the public access seems to be implicitly part of the property he purchased and nothing is being expropriated.
- kafkaesq 9y ago
  IANAL, but is it really a "taking" if the state wants him to maintain the existing level of access that the previous owner provided? No, of course not. And that's the whole point that's been finally upheld by the Court.
ubernostrum 9y ago
The Constitutional issue is whether it's a taking to force Khosla to provide the level of access that the State wants. While it's clear that the State owns the land up to the mean high tide line, what it actually wants here is for Khosla to maintain the existing public access. Easements and rights-of-way that stay with the property are not new, not unusual, and not generally something you can get wiped out by stomping your feet and yelling that it's a taking. And the specific case of property rights ending at a specific tide line, and public access being guaranteed, exists widely and non-controversially in US states which have tidal coasts, and even where not explicit via statute has precedent running back in the common law to pre-independence times and ultimately at least as far back as the laws of the Byzantine empire. Dude's not gonna get a judgment in his favor; his plan is pretty clearly to just keep locking it up, paying the fine, locking it up, paying the fine, until somebody buys the property from him, he runs out of money, or he dies of old age.

kafkaesq 9y ago

Can someone explain how he ever hoped to win this? One could say it's because the guy's basically a nutjob of sorts. But that's be oversimplifying (if ever so slightly). The more nuanced explanation is that -- like a lot of rich techies -- he apparently subscribes to an intellectual culture that believes that now matter what written laws say -- states and other governmental entities actually have limited legitimacy, and in effect are fundamentally subordinate to "common" or "natural" law. Specifically when it comes to the "rights" of owners of real property. So just because the law says something -- something silly about a requirement to grant the unwashed public "access" to a plot of land that, after all, you bought and paid for -- as the land owner, you really don't need to pay any attention to it. Or if you want to be a big craftier, you can just say "I don't like this current jurisdiction's laws, and I'd prefer to respect the laws of its (for some 150+ years) vanquished predecessor instead." So if people come after you in the courts -- hey, if you can afford lawyers sufficiently skilled so as to bamboozle either the justices in the jury with lofty-sounding talk about how, actually, the chain-of-title goes all the way back the land grants made by the Mexican Empire (and hence, you only have to worry about what its laws say about any requirements for public beach access) -- then more power to you. Which is actually the route Khosla took in this case.