in Houston, Texas
State of Texas’ evil plan foiled again: Texas Supreme Court affirms coastal property owner’s claim to her own land
Friday, Mar 30, 2012, 05:08PM CST
By Mark Lisheron
Do Right cast

The Texas Supreme Court did its best collective Dudley Do-Right impersonation today, rescuing poor Nell Fenwick from the clutches of the state’s Open Beaches Act.

Somewhere, perhaps inside the General Land Office in Austin, Snidely Whiplash is twisting the end of his handlebar mustache, spitting out between gritted teeth, “Curses, foiled again.”

For the second time in the same case, the court ruled that an act of nature cannot erode an owner’s property rights under state law, even in conflict with the law giving the public access to state-owned land on the Gulf of Mexico, according to an Associated Press story today.

The vote was 5-3. Chief Justice Wallace Jefferson did not vote.

When first we met Nell, by which we mean Carol Severance, in 2005, the San Diego lawyer was discovering that Hurricane Rita had moved Galveston beach from the front to the back of one of the four beachfront properties she owns.

Contending a public easement no longer existed, Snidely, er, Jerry Patterson, the state Land Commissioner, ordered the Severance home demolished. Severance sued the state.

The state Supreme Court ruled in favor of Severance in 2010, but the U.S. Fifth Circuit Court of Appeals asked for a second ruling to answer additional legal questions.

***
Contact Mark Lisheron at 512-299-2318 or mark@texaswatchdog.org or on Twitter at @marktxwatchdog.

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Comments
Jim Suydam
Friday, 04/06/2012 - 06:13AM

AUSTIN — The Texas tradition of guaranteed public access to the beach died today for Galveston's West End with the Supreme Court reaffirming its prior ruling in favor of a California divorce attorney who bought rental properties on the beach.

"It seems that the Open Beaches Act - at least for Galveston's West End - is dead, thanks to the Supreme Court," Texas Land Commissioner Jerry Patterson said. "This is truly a sad day."

Justice Dale Wainwright delivered the court's 5-3 opinion. Justices Debra H. Lehrmann, David Medina and Eva Guzman dissented. Justice Wallace Jefferson did not participate.

Patterson said the ruling ends any future possibility of much-needed beach renourishment projects for Galveston Island's rapidly eroding West End and will make it impossible for the state to step in quickly to clear the beach of debris after the next hurricane demolishes the front row. After hurricanes Ike and Dolly, the General Land Office spent $43 million to remove debris from the state's beaches and bays.

"This ruling is bad news for Galveston," Patterson said. "It also gives a pretty big club to anyone who wants to challenge the Texas Open Beaches Act anywhere else along the coast."

In 2005, California resident Carole Severance purchased several houses on the beach in Galveston. After Hurricane Rita hit that summer, the General Land Office sent Severance a letter stating her property was on the public beach and subject to removal under the Open Beaches Act. She was later offered up to $40,000 in public money to move each house off the beach. Instead, Severance sued, claiming the public's right to access the beach violated her constitutional rights.

In 2010, the Texas Supreme Court issued an opinion in the case that called into question the public beach easement, a key provision of the Texas Open Beaches Act. The court ruled that despite centuries of public use, a public beach easement does not exist on West Galveston Island because the original Republic of Texas land patent from 1840 failed to reserve the public's right to use the beach.

The court stated in today's ruling that even for areas where a public beach easement could be proven by the state, that easement does not "roll" landward and would effectively be extinguished after each new storm event or hurricane that moved the line of vegetation.

The 2011 opinion threw the Texas tradition of public beach access into legal limbo and caused Patterson to cancel a much-needed $40 million beach renourishment project on West Galveston Island.

The opinion also triggered a robust response from Texans defending the Open Beaches Act that resulted in a rehearing that was ruled on today.

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