Monthly Archives: September 2018

NY Times: Constitution? What Constitution?

Check out a long piece in the Sunday NY Times by a lady named Nellie Bowles, Sue at Your Own Risk, 9-2-18, Business Section, p. 2. It’s about the kerfuffle in California — where else? — that pits the state against a high-tech multi-billionaire named Vinod Khosla. His misfortune stems from the fact that he bought a 53-acre beachfront parcel, and — silly man that he is — he thought that this entitled him to all the indicia and prerogatives of land ownership. But hey man, this is California where private land ownership (particularly of beachfront land) though not quite a crime, is not something that is entitled to the law’s protection either.

Long story short, the land’s previous owner kept the land closed to the public but had maintained a gated fence surrounding the property. The gate would be opened now and then, allowing members of the public to enter and park for a fee. Mr. Khosla wasn’t interested in such an arrangement, so he closed and locked the gate. Anywhere else that would be the end of the story. But like we said, this is California, man. So local dudes calling themselves the Surfrider Foundation took umbrage and demanded that Khosla keep that gate open for their convenient access to the beach. So this being California, quick as a bunny the State Lands Commission asked the legislature for funds wherewith to acquire an access easement to the sea across Khosla’s land. Also, the California Coastal Commission took the position that locking that gate was “development” which Khosla could not engage in without a Commission permit. No, we are not making this up.

California courts (which have never seen a government beach seizure they didn’t like) upheld the Commission’s contention, and the California Supreme Court denied review. Mr. Khosla then petitioned the US Supreme Court for a writ of certiorari seeking reversal of the California courts’ ruling, thus restoring Khosla’s rights in the subject property, being as the state never paid for them. SCOTUS, however, has been sitting on that petition, and went home for its summer break without either granting or denying Khosla’s plea. So we’ll have to wait until some time after the first Monday in October to learn whether California will have to comply with the Fifth Amendment’s “just compensation” clause, or whther SCOTUS will permit it to go on its merry way of flipping off that provision of the US Constitution.

What makes this particular NY Times dispatch interesting is that in spite of its length (about two broadside newspaper pages) it never mentions the Constitution, nor any takings cases decided by SCOTUS in the recent past. Like Kaiser Aetna, for example, which is directly on point (holding that the government may not order private land owners to open their property to the public, without paying just compensation. We recommend you read that article yourself and check us out. The way the Times describes this controversy sounds like a private quarrel between some local, beach-loving surfer dudes, and a wicked, greedy land owner who has the temerity to think that his ownership of land (on which he pays taxes) is protected by law, or that he has the right to exclude strangers from it, and that the Constitution (as well as the California Civil Code) grant him the right to exclude third-party strangers from his land.

So as we are fond of saying, stay tuned and keep your eye on the calendar to see if, come that first Monday in October, constitutional rights will be restored to California land owners.