Federal judge backs state on structures along Gulf

By CINDY GEORGE
Copyright 2007 Houston Chronicle

In 2006, Texas Land Commissioner Jerry Patterson notified several coastline property owners, including Carol Severance, that he might order them to remove their houses from the beach.

The offer: The owners were offered a reimbursement of up to $50,000 per structure after their structures were moved.
The reaction: Homeowners argued that not everyone could pay the moving costs up front and that the offer doesn't include compensation for the former property or the cost of another lot.

A Houston federal judge's ruling this week has boosted the state's effort to remove beachfront structures that erosion has left too close to the water.

U.S. District Judge Kenneth Hoyt on Wednesday dismissed a lawsuit filed by California lawyer Carol Severance, who spent $1.18 million on three Galveston Island homes in 2005. The houses were built on private property the state now considers public beaches because of the encroaching coastline.

Her lawsuit challenged whether the state can constitutionally recognize and enforce an easement, or setback, from a waterline that is continually moving.

Public vs. private

Under the Texas Open Beaches Act, state officials have sought to move or demolish buildings to ensure public access to the beaches.

"This comes as no surprise," Texas Land Commissioner Jerry Patterson said in a statement issued by the state General Land Office. "The law is clear: Texas beaches belong to Texans - all Texans."

But lawyers for property owners are questioning whether the homes are indeed on public beaches. They maintain the public beach is gone and that homeowner property remains private.

The ruling doesn't resolve the difference between what's public and private, but says the distinction changes with time.

Severance's lawyer, J. David Breemer, said he will appeal.

A naturally changing coastline was narrowed considerably by hurricanes Katrina and Rita in 2005, and major erosion last October washed away what was once public beach in many places on the island.

"Severance's real complaint lies with the Texas courts, which have repeatedly held that the beach easement, once established up to the vegetation line, expands and contracts along with the movement of that boundary," the judge wrote in his ruling.

State court option

Severance and other property owners still can seek relief in state court, Hoyt concluded.

Land Office spokesman Jim Suydam described most of the homes as "cash cows" for their owners, but Houston lawyer Ted Hirtz said not every beachfront homeowner is well-off. For some, the property was purchased with retirement savings.

Hirtz represents about a dozen property owners who sued in state court to prevent the Land Office from forcing the removal of their homes from Surfside Beach Village without compensation.

"My clients' original lawsuit was for a declaratory judgment as to what right the public has under moving beach easements and what rights my clients retained. This has not been clearly spelled out in Texas law," Hirtz said.

"The state has its position on that, including kick you off your land. That doesn't sit well with my sense of fairness and, I believe, the Constitution."

She will be a holdout

Land officials say 14 coastal property owners have accepted the state's reimbursement offer.

"Patterson could have come in four years ago to file lawsuits and begin removing homes on the beach. Instead, what he's chosen to do is seek a cooperative approach and offer relocation money to help homeowners move their property off the beach," Suydam said. "So far it's working. Houses are moving off the beach."

But Severance intends to leave her rental houses where they are.

"She doesn't want to move her properties, but if they're going to threaten her with removal and say that her property is open to public use, then that action has to be stopped until they offer just compensation," said Breemer, a lawyer with the California-based Pacific Legal Foundation, which works to preserve private property rights.

"Her homes are under threat and subject to $1,000-a-day fines. She can't tell the public to get off her property or put up a 'No trespassing' sign."

Don't Mess with Texas Beaches

MISSION STATMENT: The Surfrider Foundation is a non-profit environmental organization dedicated to the protection and enjoyment of the world's oceans, waves and beaches for all people, through conservation, activism, research and education.