Permit needed to keep trespassers off private property

Yesterday, a San Mateo Superior Court judge issued a stunning tentative ruling in one of the two Martins Beach lawsuits pending against coastal landowner Vinod Khosla.

The judge concluded that the decision to disallow the public to trespass onto private property–after allowing the public to do so for a fee–constitutes “development” requiring a Coastal Development Permit from the California Coastal Commission.  The immediate effect of the ruling, if it becomes final, is that it forces Khosla to re-open his private property while he applies for a permit allowing him either to close it off or to modify the terms and conditions of public access.

The ruling is premised on a broad, near-limitless reading of the Coastal Act’s definition of “development,” which includes any change in the intensity of use of property or of access to water.  According to the Court, by discontinuing public access onto private land, Khosla decreased the intensity of use of that land and of access to his beach, thereby engaging in “development.”  The Court’s tentative ruling follows a string of court decisions that have gone down the proverbial slippery slope to allow the Coastal Commission to regulate most activities undertaken by property owners in the coastal zone.

It’s difficult to imagine that the Legislature intended for the Coastal Commission to have jurisdiction over these kinds of private decisions. A property owner should be able to decide–without the government’s permission–whom he lets onto his property, and under what terms and conditions. The Court’s tentative ruling in this case makes all coastal landowners a little less free, but it could still make the right decision and adopt a final ruling that reasonably interprets the Commission’s jurisdiction.  And if it doesn’t, the courts of appeal may still have the opportunity to weigh in.