By MIKE NORMAN
mnorman@star-telegram.com
Give beachfront property owners along the Texas Gulf Coast credit. They whine and whine about being mistreated by the state, but they also fight tough. They have friends in high places, and they’re not afraid to use them.
This year when state Rep. Wayne Christian almost lost his home on the Bolivar Peninsula south of Houston because it encroached on the public’s access to the beach, he got his friends in the Legislature to exempt his house and those of his neighbors from the state’s 50-year-old Open Beaches Act.
Gov. Rick Perry ranted about the exemption, but he didn’t have the guts to veto it.
The Open Beaches Act says that Texas beaches along the Gulf of Mexico are open to the public. Anything, including a house, that impedes public access can be ordered removed. Beaches are defined as the land between the water and the shore’s vegetation line.
Under a proposed constitutional amendment in the Nov. 3 election, well-connected property owners could no longer bend or reshape the Open Beaches Act to fit their private purposes, because the law would be incorporated into the Texas Constitution.
Storm tides and other natural events frequently erode Texas beaches and the amount of land between private property and the water. Through no fault of their own, property owners can wake up and find that their house
near the beach suddenly is wholly or partly
on the beach instead.
When that happens, property owners can’t repair storm damage to their houses without state permission, aren’t covered by title insurance and can’t renew the windstorm insurance that the rest of us subsidize. Although any land above the water level at mean high tide remains theirs, they can’t exclude public use between high tide and the vegetation line.
Courts have almost unanimously supported Texas on this, but that hasn’t prevented lawsuits from quixotic property owners, even half a century after the Open Beaches Act was passed. Carol Severance, a California resident, has such a suit scheduled for a Texas Supreme Court hearing on Nov. 19.
Severance is fighting to keep two rental houses on west Galveston Island that she bought in April 2005. In both 1999 and 2004, the state had listed the houses in Galveston County property records as encroaching on the public beach and thus subject to removal.
You’d think Severance would have known what she was getting into when she bought the property, right?
Erosion from Hurricane Rita in September 2005 moved the water’s edge even closer to Severance’s houses, and the vegetation line shifted completely landward of them. In June 2006, the state informed her that her property was on the public beach and offered her $40,000 to help pay for moving the houses.
She declined and sued in federal court claiming denial of her property rights.
A federal judge dismissed her claim in 2007, saying her "right to exclude the public never extended seaward of the dynamic, natural boundary of the beach" as defined in the Open Beaches Act.
Severance appealed, with legal representation provided by the Pacific Legal Foundation, a Sacramento-based organization that fights in courts nationwide for limited government and the rights of property owners.
Two of the three judges on a panel of the 5th U.S. Circuit Court of Appeals panel that heard the case voted to dismiss part of her claim. But for another part, they sent questions to the Texas Supreme Court about how the Open Beaches Act. The third judge wanted to dismiss the case completely.
The third judge also raised questions about whether Severance has been operating on behalf of the Pacific Legal Foundation all along in an effort to gut the Open Beaches Act. That might at least explain why she spent good money on houses that were already targeted for removal. Maybe she did know what she was doing.
Either way, November will be a crucial month for Texans and their right to use the beaches of their state. I hope voters will stand behind the Open Beaches Act by approving Proposition 9 on Nov. 3.
The Texas Supreme Court should explain the sound basis of the Open Beaches Act to the 5th Circuit so it will toss out the rest of Severance’s case.
Mike Norman is editorial director of the Star-Telegram / Arlington and Northeast Tarrant County. 817-390-7830
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