Texas Supreme Court Rules for Private Beachfront Property Owners

By Janet Elliott

AUSTIN – In a case pitting private property rights against Texas’ longstanding protection of public access to beaches, a divided Texas Supreme Court said public beaches may become private when a hurricane dramatically alters the coast line.

Dissenting justices said the ruling jeopardizes the public’s right to free and open beaches, and threatens to embroil the state in beachfront litigation for decades to come.

Texas Land Commissioner Jerry Patterson, who was sued by a Galveston property owner after his office tried to buy her home, said the ruling kills the tradition of open beaches on Galveston’s West Beach, and could apply to other coastal areas.

“This is truly a sad day,” he said.

The court in 2010 issued an opinion that questioned the public beach easement, a key provision of the Texas Open Beaches Act. The court agreed to the state’s request that it reconsider the ruling, but surprised Patterson by reaffirming the original decision.

The earlier opinion caused Patterson to cancel a $40 million beach re-nourishment project on West Galveston Island, and he said the latest ruling will eliminate post-hurricane beach cleanups.

“We will not be able to spend public money to improve private property,” Patterson said.

After Hurricane Rita in 2005 moved the vegetation line in front of a home owned by Carol Severance, she rejected the states $40,000 offer to remove or relocate the home, and asserted her constitutional property rights in a federal lawsuit.

The U.S. Court of Appeals for the Fifth Circuit said it could not decide the case until the Texas Supreme Court answered questions about whether the state recognizes a “rolling” public beachfront access easement. Such a rolling easement would allow continued public access even when a storm pushes the vegetation line onto what was previously private property.

The court, in a 5-3 opinion, said the vegetation line is not the automatic beach boundary, and that what matters is whether the state can prove there is an easement.

“On one hand, the public has an important interest in the enjoyment of the public beaches. But on the other hand, the right to exclude others from privately owned realty is among the most valuable and fundamental of rights possessed by private property owners,” Justice Dale Wainwright said in the majority opinion.

The court drew a distinction between gradual changes along the beaches due to everyday forces of wind, rain and tides with sudden changes caused by a major storm.

“Because sudden and perceptible changes by nature occur very quickly, it would be impossible to prove continued public use in the new dry beach, and it would be unfair, and perhaps unlawful, to impose such drastic restrictions through the Open Beaches Act upon an owner in those circumstances without compensation,” the court said.

Patterson said that Severance is a California attorney who bought rental properties on the Galveston beach. She was represented by the Pacific Legal Foundation, a Sacramento, Calif.-based organization that litigates for property rights.

David Breemer, a principal attorney with the foundation, said the court was correct to relegate rolling easements to the dustbin of Texas law.

“You can’t turn private land into a public beach simply because a storm blows away the beach vegetation,” Breemer said.

He said the ruling puts the state in the same position it is in with respect to any private land, that it must compensate owners if it wants to take their property for public use.

David Medina, in a dissenting opinion, said the majority ignored the implied easement arising from the public’s continuous use of the beach for nearly 200 years.

“The Court’s refusal to follow existing Texas law means that every hurricane season will bring new burdens not only on the public’s ability to access Texas’s beaches but on the public treasury as well,” Medina said.

Justices Eva Guzman and Debra Lehrmann also dissented, and Chief Justice Wallace Jefferson did not participate.

Lehrmann said the court’s decision restricting beach access will decrease the value of non-beachfront properties on the island. She said the court should have declined to answer the federal court’s questions because Severance sold the home to the city of Galveston as part of a Federal Emergency Management Agency hazard mitigation grant program.

Breemer said Severance sold the home and one other, but still owns a beachfront home on the island.

Patterson said that he believes the opinion is specific to Galveston because it discusses the island’s original land grants that created private property. But he said that similar arguments could be applied to other coastal areas and their historic land grants.

Cities and counties around the state, including Galveston, Houston, and Harris and Travis counties, had asked the court to uphold the Open Beaches Act.

The beach home case was the third time this year that the Supreme Court has taken a strong stand for private property rights. In February, it re-asserted the rights of landowners to the water flowing beneath their ground in a case that critics said could make it more difficult for the state to manage water resources.

And in a pipeline case a few weeks ago, the court ordered more stringent oversight of pipeline companies that declare themselves common carriers in order to condemn private land.

“This is a brave court that is making a stand for property rights at a time when property rights are not as respected or cherished as they used to be in this country,” Breemer said. “I applaud that.”

PLEASE NOTE: Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.