Woman had been ordered to move or raze homes after Hurricane Rita reshaped shoreline


Blunting state enforcement of the Open Beaches Act, a 51-year-old law meant to preserve public access to the shoreline, the Texas Supreme Court ruled Friday that state officials cannot seize private property that suddenly moves onto public beaches because of erosion from hurricanes or storms.

The 6-2 ruling means state officials can no longer automatically order landowners to raze or move homes that encroach on Gulf of Mexico beaches after a major storm reshapes the shoreline.

The case began in 2005 when a Galveston property owner was ordered to move or raze several homes after Hurricane Rita struck.

Justice Dale Wainwright, author of the opinion, said the court sought to balance public and private property rights.

“On one hand, the public has an important interest in the enjoyment of Texas’ public beaches. But on the other hand, the right to exclude others from (their) property is among the most valuable and fundamental of rights possessed by private property owners,” Wainwright wrote.

But a dissenting opinion by Justice David Medina, joined by Justice Debra Lehrmann, said the court “jeopardizes the public’s right to free and open beaches” by giving greater deference to private property owners.

“I would instead follow the constitution and the long-standing public policy of this state and hold that the beaches of Texas are, and forever will be, open to the public,” Medina wrote.

The issue revolves around the dividing line between public and private beachfront.

Public land, owned by the state, runs from the high tide mark to the water and is known as the “wet beach.” Friday’s ruling did not change this concept.

The “dry beach,” from the high tide mark to the vegetation line, may be privately owned. But under the Open Beaches Act, the dry beach also is typically subject to an easement that keeps it open to public access.

The present controversy began with a lawsuit by Carol Severance, who bought several beachfront homes on Galveston Island’s West Beach in 2005. Five months later, Hurricane Rita pummeled Severance’s properties, moving the vegetation line behind the houses.

State officials ordered Severance to move or raze the homes, saying they were in the public easement and interfered with public use of the dry beach. Severance sued, claiming the action was an unreasonable seizure and improper taking of her property.

In its ruling, the Supreme Court said the public easement can subtly shift to follow natural patterns of erosion — but it cannot jump to encompass previously private property based on sudden, storm-wrought changes.

“It says the state can’t expand public beaches just because a storm blows away the beach grass,” said Dave Breemer, a lawyer with the Pacific Legal Foundation, which supports limited government and wields lawsuits to enforce property rights. The organization sued on Severance’s behalf.

“It changes really the entire dynamic about how you enforce and recognize and define public beaches,” Breemer said.

State officials declined to comment Friday, saying they needed to study the effect of the ruling. But Lynn Blais, a University of Texas law professor who specializes in property law, said that although the ruling will hamper state efforts to keep beaches open, officials have other options at their disposal. Nuisance laws, for example, can keep homes out of public beach areas, she said.

“It is not right to assume that elected officials are going to roll over and allow private landowners to stop citizens from using the beaches. There’s too much history of public access,” said Blais, who submitted a court brief opposing Severance’s claims for the Galveston Chamber of Commerce.

Chief Justice Wallace Jefferson did not participate in the decision.