Buy It, Do Not Take It: Eminent Domain, Donations and the Honest Way to Open a Beach

California has considered condemning a road to Martins Beach and has passed the hat for the cost, raising a rare case where the constitutional remedy is also the market one

Eminent Domain at Martins Beach: Why Paying for Access Is the Principled Option

Libertarians are not known for enthusiasm about eminent domain. The power of government to force a sale is easily abused, and its history includes neighbourhoods cleared for stadiums and shopping centres. Yet in the long fight over a road to a San Mateo County surf beach, compulsory purchase may be the most defensible tool on the table.

The possibility has been discussed for years. An advocacy group’s explainer after one court ruling laid out the options facing the property owner and the state. Among them: the State Lands Commission can proceed with eminent domain and purchase the easement, in this case the road leading to the beach, even if the owner is unwilling to sell, thereby establishing permanent access. The group urged supporters to attend the commission’s meeting and ask it to do so.

The commission’s own website shows how far that idea went. Its public notices on the matter include a Martins Beach appraisal, an announcement that the state had filed a joint lawsuit with the Coastal Commission to restore access, and a notice that the agency is accepting donations for the creation of a public access route.

The Constitutional Bargain

The Fifth Amendment allows the government to take private property for public use on payment of just compensation. The clause is a limit as much as a grant. It says that when the public wants something an owner has, the public pays.

Much modern land-use regulation is an attempt to obtain the benefit without the payment. Conditions on permits, restrictions on use and procedural delay can all transfer value from an owner to the public while keeping the cost off the government’s books. Eminent domain, by contrast, puts the price in the open. A court determines fair market value. The legislature must find the money.

Why It Fits Here

A road to a public beach is the classic public use. Nobody disputes that the state may build roads or that the shoreline is public. The only questions are whether this easement is worth acquiring and at what price.

If the public already holds a right of way through long use, a court can say so and no payment is due. If it does not, purchase settles the matter permanently. In either case the owner’s title is clarified and the public’s access no longer depends on permit conditions or the mood of an agency.

The Donation Jar

The appeal for donations is the most interesting feature. A state agency, lacking an appropriation, asked private citizens to contribute toward buying access. Sceptics may find that faintly absurd. It is closer to a market mechanism than anything else in the saga. Those who value the beach most are invited to pay for it.

Voluntary funding of public goods has a long record: land trusts, conservation easements, surf-break protection groups that buy coastal parcels outright. It works best when the good is local and its users are identifiable, which describes a surf beach well.

Objections From Property Defenders

Some libertarians oppose any forced sale. Their argument is that “just compensation” never fully compensates, since it ignores the owner’s subjective value and the simple right to say no. An owner who would not sell at any price is made worse off by definition. They also warn that each use of the power, however reasonable, normalises it.

Those objections have force. The answer is one of comparison. The alternative on offer is not a world in which the owner is left alone. It is one in which the state pursues the same end through litigation and regulation, at the owner’s expense and without paying. Against that, an appraised purchase is the lesser intrusion.

Objections From Access Advocates

Many who favour opening the beach dislike the idea of paying a wealthy man for something they believe the public already owns. To them, purchase rewards obstruction and sets a precedent that every coastal owner can demand a ransom.

That concern is understandable. But if the public’s right is as clear as they say, it can be established in court and nothing need be paid. If it is not clear, then paying is what the constitution requires. Resentment is not a legal theory.

The Number

Everything turns on valuation. Reports over the years have described a wide gap between what the owner sought and what the state’s appraisers believed the easement was worth. That gap is why the matter has not closed. A condemnation proceeding exists to resolve exactly such disagreements, with evidence and a neutral decision-maker.

A General Rule

The principle extends beyond one beach. Where the public wants access across private land, there are three honest routes. Prove an existing right. Buy one voluntarily. Or condemn one and pay. A fourth route, wearing the owner down with process, is the one most often taken, and it is the least consistent with either property rights or good government.

Surfers and other beach users who care about access have an interest in the honest routes. Rights acquired that way are recorded, durable and hard to reverse. Readers should consult the agencies for the current status of the case, which has continued to move through the courts.

Light Relief

Britain calls its version compulsory purchase and has been arguing about it since the railways. The London Prat finds the humour in its English satirical news on compulsory purchase and UK satirical news about public footpaths. Bohiney Magazine covers the American equivalent.

SOURCE: https://bohiney.com/