Another win on the beach for Texas property owners

Today, the Texas Supreme Court handed down a short but sweet victory for Texas property owners who had their land and beach homes taken for use as a public beach, without compensation, by the State of Texas and Village of Surfside.

The case arises from a long running dispute in Surfside, Texas, a small, but popular coastal area. At the center of the case are a row of beachfront homes that were lawfully built in the 1960 and 1970s. After a 1998 tropical storm moved the vegetation line landward of these homes, the State informed the homeowners that, based on its now illegal policy of considering the public beach to extend inland to the vegetation line (wherever it goes), the homes were encroachments on a public beach and subject to removal for violating the State’s Open Beaches Act.

Some homeowners sued. The State counterclaimed for a court order to have the homes physically removed without compensation.  Later, the State and Village disconnected utilities from the entire row of beachfront homes, denied repair permits and built a rubble barricade between the homes and  the first road near the sea. More homeowners joined the suit, and the State also sought a court order allowing removal of these homes.

The homeowners lost in trial court in 2007, with that court holding that the State could impose and enforce a public beach on the owners’ properties simply because they were denuded of vegetation by a storm (turned into dry sandy lots instead of grassy ones), and that at the moment the public beach attached, the homes became illegal and could be targeted and ultimately, removed without government liability for a taking.  The owners appealed.

Meanwhile, Pacific Legal Foundation was litigating Severance v. Patterson, the landmark case which successfully struck down Texas’ policy of “rolling” a public beach to the vegetation line, and across  private parcels, whenever that line moved landward due to storms. See here. But that case was at an early stage in the Texas Supreme Court, and the Brannan owners did not want the Court of Appeals to wait for the outcome in Severance to act–they feared a storm would destroy all the homes if they had to wait too long to secure a favorable judgment, because the State still prevented them from maintaining and protecting them.

The Court of Appeals obliged and issued an adverse decision in  2009 affirming the trial court’s order that the Surfside homes enroached on a public beach because of the inland location of the vegetation line and could be removed without compensation. The Brannan plaintiffs then went to the Texas Supreme Court, and when Severance came out,  argued there that the lower court decisions against them were wrong and had to be reversed because of the recent Severance decision.

Today, the Texas Supreme Court agreed. While the Court stopped short of granting final victory, it rejected the State’s arguments that Severance did not apply and struck the Court of Appeals opinion, ordering that tribunal to rehear the case and this time, to take into account the private property rights protected by Severance.  This means that there is not a single Texas court opinion left supporting the State’s vegetation line-based public beach boundary and its generally anti-private property understanding of the Open Beaches Act.