“Don’t mess with Texas.”
We’ve all heard this and have a pretty good idea what it means. Texas is a unique place, accustomed to doing things its own way. Despite growing progressivism in the state’s sprawling urban areas, Texans still retain an independent streak that encourages intrusive government to bug out.
But what happens when Texas messes with you?
Property owners along the state’s Gulf Coast are finding out that Texas bureaucrats can be as power hungry as their counterparts elsewhere. The Texas General Land Office (GLO) recently threatened the property rights of coastal landowners by reclassifying the private properties of Charles Sheffield and Merry Porter as public beach.
With the Flick of a Bureaucrat’s Pen
After Hurricane Laura and Tropical Storm Beta changed the shoreline of Surfside Beach (near Galveston), the GLO claimed that damages to the vegetation line prevented an accurate assessment of changes to the coast. Using this as an excuse, the GLO unilaterally declared the public beach to be 200 feet from the mean low tide for the next two years.
As a result of the redrawn boundaries, the public beach suddenly encompassed Charles’ and Merry’s properties. Although the U.S. Constitution under the Fifth Amendment requires just compensation when such takings or restrictions of the use of private property occur, they were offered nothing.
Charles and Merry have filed a federal lawsuit challenging the Texas order that converts their property into public beach, fighting back against the GLO’s land grab.
It turns out that controversies surrounding the GLO’s practices predate the Surfside Beach land grab.
For instance, as Niko Malhotra and Carol Park of the Pacific Legal Foundation (PLA) point out, the GLO improperly relies on the “vegetation line” as the proper boundary of a public beach, circumventing common law which precisely defines the boundary of the public beach as up to the mean high tide line.
Because Charles’ and Merry’s properties are behind the proper line, their properties would not be considered public beach in most other states. Despite this, the GLO has improperly used the vegetation line to seize private property.
“Sudden Conversion of Private Property to Public Beach”
The new rule also goes against a Texas Supreme Court ruling that made progress toward stronger protection of coastal land rights. In Severance v. Patterson, Malhotra and Park note, “the Texas Supreme Court clearly rejected the notion that the public vs. private beach boundary rolls back following sudden weather events. While erosion and accretion may alter the property boundary over a long period of time, after avulsive weather events like tropical storms and hurricanes, the property boundary must remain the mean high tide line to prevent the sudden conversion of private property to public beach. In sum, the GLO cannot use sudden weather events such as hurricanes to whittle away the rights of coastal landowners and take private property without due process and just compensation.”
Rather than validating the GLO’s abuses, they argue, Texas should seek to emulate states such as Florida with coastal land management policies that respect the rights of local landowners. Florida law makes a sharp contrast between gradual changes to the coastline and sudden events like storms that alter to coastline, which would not change the property boundary of coastal landowners.
In Walton County v. Stop the Beach Renourishment Inc. the Florida Supreme Court reaffirmed this principle and held that the speed of change was a crucial factor in differentiating the impacts of gradual, imperceptible change and dramatic, sudden change on coastal properties.
Such established framework for coastal land policy provides certainty for the state’s coastal landowners and reinforces confidence in property rights.
August 12, 2021