Defending beachfront property rights against “rolling easements”

Texas statutes provide that private land seaward of a beach’s natural vegetation line is considered part of the public beach. Private property landward of that natural vegetation line was private. When Tropical Storm Frances hit Surfside, Texas in September, 1998, it severely and obviously dislocated the vegetation line landward of homeowner’ houses. The State then claimed a public beach easement existed on the dry sand beach areas where the houses stood. When the owners sued for relief, the State counterclaimed to remove their homes as beach encroachments. The Village of Surfside even disconnected the homeowners’ utilities to advance the public beach easement. In 2007, the trial court rejected the owners’ takings claims and granted the State an injunction to remove the homes without just compensation.

PLF took over representation of the property owners before the Texas Court of Appeals, which affirmed the trial court. While PLF’s petition on behalf of Brannan and the other owners was pending before the Texas Supreme Court, that court issued its decision in PLF’s Severance v. Patterson case, invalidating the “rolling easement” that Texas land use officials used to deprive owners of their dry sand beachfront property. The Texas Supreme Court then reversed the adverse Court of Appeals decision in this case, and ordered the lower court to reconsider the trial court’s judgments against the property owners in light of Severance. The appeals court vacated the trial court’s judgments and remanded the case to the trial court for it to conduct further argument and fact development based on Severance. That decision eliminated the last Open Beaches Act opinion left in favor of the state but the homeowners continue to fight for their rights in the trial court.