With Supreme Court challenge, tech billionaire could dismantle beach access rights — and a landmark coastal law

Rosanna Xia, Los Angeles Times on

Published in Political News

Khosla is not the first wealthy landowner to challenge coastal regulations. Many still recall the 22-year fight with music producer David Geffen to unlock his Malibu gate.

But not all fights have ended in public victory. When the Coastal Commission demanded in the 1980s that James and Marilyn Nollan allow the public to walk on their beachfront in Ventura in exchange for obtaining a building permit to enlarge their house, the Supreme Court ruled the agency had gone too far.

In handing down the 1987 Nollan v. California Coastal Commission decision, Scalia compared the commission's tactics to "an out-and-out plan of extortion." The first of a number of rulings in which the court tilted the law toward protection of property rights, it dramatically scaled back the commission's power to require public access ways to the coast.

"Nollan had a catalytic effect, and I expect any decision in the Martins Beach case ... would have a similar sweeping and catalytic effect on public access law and property rights more generally," Frank said. "It's one of those landmark foundational cases that is cited all the time throughout the nation and has prompted more litigation."

Ralph Faust, who was the commission's general counsel from 1986 to 2006, said a striking difference between the Nollan case and Martins Beach is that Khosla is challenging the Coastal Act "as written, not as it's applied."

Nollan applied for a permit but didn't like the stipulations the commission required, so he challenged them, Faust said. Khosla is skipping that step altogether and arguing that the requirement to seek a permit -- as well as the state court injunction to maintain the status quo of keeping the gate open while the matter is being decided -- violates his rights as a property owner.

"That's a pretty stunningly broad attack on state government," Faust said. "If he were to win on that and just get a declaration that the Coastal Act could not possibly be constitutionally interpreted to require a permit for that kind of development -- that would be just huge."

The Nollan case unfolded in unexpected ways and to this day affects the way access rights are argued and how land should be set aside for the public, Faust said. Should the Supreme Court take up Khosla's appeal, the implications are beyond imaginable.

"Just because you think you know what the situation is when you're talking about a case, doesn't mean that's how it's going to look if the Supreme Court actually decides something," he said.

"These things take on a life of their own."

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