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Follow TURFTexas Supreme Court rules in favor of property rights on public beaches
Texas Supreme Court limits Open Beaches Act
Associated Press
Published 08:53 p.m., Friday, March 30, 2012
AUSTIN — The Texas Supreme Court placed private property rights ahead of the state's Open Beaches Act in a new ruling Friday.
The decision says that if an act of nature erodes a beach, the landowner's right to the remaining property is not diminished by state law, even if it is now part of the beach. A federal appeals court questioned the high court's first ruling and asked it to clarify its decision while state officials asked for a rehearing. Friday's decision is essentially the same as the earlier one with clarifications.
The Open Beaches Act states that a beach up to the vegetation line is state property and therefore open to the public. The state had argued that the state's right to the land automatically shifts with the sands. The court disagreed.
“When a beachfront vegetation line is suddenly and dramatically pushed landward by acts of nature, an existing public easement on the public beach does not ‘roll' inland to other parts of the parcel or onto a new parcel of land,” Justice Dale Wainwright wrote on behalf of the majority of judges. He said the state must instead take legal action if it wants the property to become open to the public.
The lawsuit was filed after Hurricane Rita's winds and rain pounded the Texas shoreline in 2005, eroding the sand and leaving Carol Severance's home on a sandy beach along Galveston Island's West Beach. The state ordered her to demolish her home, saying her land was now considered a public beach. Instead, Severance took the state to court.
The high court ruled in November 2010 that the land on the beach could be considered private property, as it was when Texas was a republic. Critics said the decision disregarded decades of precedent allowing Texans access to beaches. Land Commissioner Jerry Patterson, backed by outraged advocacy groups and some municipalities, filed a motion for a rehearing.
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Link to article here.
Court: Public beach easement does not roll
By Christopher Smith Gonzalez
The Daily News
Published March 31, 2012
GALVESTON — In Texas, a public beach easement does not roll, the Texas Supreme Court ruled Friday.
And that means the general public’s right to access and the state and city’s ability to conduct restoration projects on Galveston’s West End beaches could be eroding away.
The ruling by the state’s highest court states that if a major weather event, such as a hurricane, erodes a beach, landowners retain their rights to the remaining property, even if it becomes part of the public beach.
The court issued the ruling in response to questions sent down from the U.S. Fifth Circuit Court of Appeals relating to litigation over enforcement of the Texas Open Beaches Act.
Supporters of the court’s ruling said it upheld private property rights. But opponents said it could mean the end of guaranteed public access to Galveston’s West End beaches.
“It seems that the Open Beaches Act — at least for Galveston’s West End — is dead, thanks to the Supreme Court,” Texas Land Commissioner Jerry Patterson said. “This is truly a sad day.”
It also means the land office will not spend any more money on beach renourishment projects on the West End, Patterson said.
Galveston spokeswoman Alicia Cahill said the ruling also will affect any of the city’s future beach nourishment projects.
Before the city would spend any public funds on a private beach, the city would want the property owners to sign an easement agreement with the city, Cahill said.
“That way we are preserving a public easement, and the money would only be spent within that area,” she said.
The End Of Rolling Easements
This is the second time the state Supreme Court has ruled on a lawsuit brought by California resident Carol Severance against the state of Texas. Severance sued to prevent the land office from enforcing a rolling public easement along the beach.
After Hurricane Rita, Severance’s West End house on Kennedy Drive ended up on the public beach.
Under state law, Texas beaches must remain accessible to the public through an easement that exists between the vegetation line and the mean low tide line. And state officials maintain that when the tide and vegetation lines move because of erosion or storm damage, the easement moves. The Open Beaches Act gives the Texas land commissioner the right to remove houses that end up in the easement.
But in 2010, the Texas Supreme Court ruled the state couldn’t condemn and take private property that ends up on the public beach as a result of erosion.
In the opinion authored Friday by Justice Dale Wainwright, in which four other justices joined, the court reaffirmed its earlier opinion by stating “Texas does not recognize a ‘rolling’ easement.”
Beach-front property lines might gradually change, but “they do not ‘roll’ onto previously unencumbered private beach-front parcels or onto new portions of previously encumbered private beach-front parcels when avulsive events cause dramatic changes in the coastline,” the court ruled.
J. David Breemer, an attorney with the Pacific Legal Foundation, which represents Severance, said the ruling was a great victory for all Texas property owners.
The court’s ruling “ends the rolling easement as we know it down there,” Breemer said.
He said Severance was gratified “that the court has once again recognized that she has private property rights that the state can’t take away simply because the vegetation moves.”
“The court confirmed that when the state wants to take private land for public use, it must use lawful means — like paying compensation — not clever theories that magically transform private land into public land,” Breemer said.
Dissenting Views
Friday’s ruling is far from being the last word on the matter — the case now goes back to the U.S. Fifth Circuit Court of Appeals.
In a dissenting opinion, Justice David Medina said Texas beaches always have been open to the public.
The state’s constitution and The Open Beaches Act establish that a beach is open to the public, Medina wrote.
But the court’s decision “jeopardizes the public’s right to free and open beaches,” Medina said in the dissenting opinion.
Meanwhile, the state’s Supreme Court rulings have caused the General Land Office to cancel a $40 million beach renourishment project last year.
It also ends any future possibility of much-needed beach renourishment projects for Galveston Island’s West End and will make it impossible for the state to step in quickly to clear the beach of debris after the next hurricane demolishes the front row of beach houses, the General Land Office said in a statement.
After hurricanes Ike and Dolly, the General Land Office spent $43 million to remove debris from the state’s beaches and bays, the statement said.
“This ruling is bad news for Galveston,” Patterson said.
Centuries Of Precedent
Babe Schwartz, a former state senator from Galveston who was in the legislature when the Open Beaches Act was passed in 1959, said the state’s supreme court is wrong in its decision and is abolishing a well-established right.
“The Severance case opinions are contrary to everything I have ever learned or taught,” said Schwartz, who taught coastal law at the University of Houston and the University of Texas at Austin.
The ruling goes against precedent set by Roman Law, English Common Law, Spanish Civil Law, Texas Common Law, as well as more modern cases, he said.
In his opinion, Schwartz said, the court set out to side with Severance, and she is the only person who will benefit from the ruling.
Severance already sold the property to the Federal Emergency Management Agency’s Hazard Mitigation Grant program but, Schwartz said, the state should condemn the property.
The Supreme Court’s ruling also goes against the will of the people of Texas, said Ellis Pickett, spokesman for the Surfrider Foundation’s Upper Coast Chapter.
Pickett, who said he comes down to Galveston beaches every chance he gets, said he helped with a 2009 constitutional amendment that gave Texans the right to access public beaches. That amendment gained about 77 percent of the votes statewide and more than 80 percent of votes in Galveston County, he said.
But now, that right could be going away.
“The Supreme Court just sold our beach and gave it to the front row people,” Pickett said.
And, Picket said, Supreme Court Justices are elected.
“The voters need to hold them responsible,” he said.