Property Owner Threatened with Removal of Homes To Promote Open Beaches - Lawsuit begun to protect private property rights 7/26/2006 Pacific legal Foundation

Galveston, TX: Pacific Legal Foundation today filed suit in federal court against government officials charged with enforcing the Texas Open Beaches Act, claiming that they are unconstitutionally depriving beachfront property owners of their private property rights. PLF is representing a homeowner forced to suffer a public invasion of private property and potential destruction of her homes under the Open Beaches Act simply because government officials have determined that the vegetation line has moved to the landward side of the homes. PLF’s suit demands that government officials cease applying the Act to strip property owners of their homes and land without just compensation. "For too long, state and local government officials have used the Open Beaches Act as an excuse to take valuable beachfront property without constitutional due process or just compensation," said J. David Breemer, a lawyer with Pacific Legal Foundation. "This suit aims to remind those officials that private property is protected by the United States Constitution and that the Constitution is superior to a state law, however well-intentioned." Named in the lawsuit are Jerry Patterson, Commissioner of the Texas General Land Office (GLO), Texas Attorney General Greg Abbot, and Dirk Sistrunk, District Attorney for the County of Galveston. The Commissioner of the GLO maintains that the Open Beaches Act creates a public beach access easement on private property whenever the natural vegetation moves across that property. The GLO Commissioner and other defendants further claim that homes that become seaward of the vegetation line are encroachments on the public beach that may be removed forcibly without just compensation, even though it is the easement that has encroached on private property. The GLO Commissioner has recently identified at least 116 beachfront homes subject to a public beach access easement and removal because they have become seaward of the vegetation line. Carol Severance, whom PLF represents in the current litigation, owns three valuable homes along the Galveston coastline. The homes are among those recently determined to be wholly or partially seaward of the vegetation line by the GLO Commissioner. Her well-maintained homes do not sit in standing water and never have been declared a threat to public health, safety, or beach access. But, because the homes are deemed to be seaward of the vegetation line, the GLO Commissioner claims the public may use her property and the homes may be forcibly removed at any time through enforcement action under the Open Beaches Act. The Commissioner’s 2006 "Plan for Texas Open Beaches" offers Severance $40,000 per home in reimbursement expenses if she voluntarily destroys her beachfront homes, but provides no compensation for the value of the homes or for the public use of her property. According to PLF’s complaint, under the "Takings" and Due Process Clauses of the Constitution, Severance has a fundamental constitutional right to exclude the public from her property and to receive due process and just compensation before her property is invaded or destroyed by state officials for benefit of the public. PLF is asking the court to declare that Severance’s constitutional rights prevent government officials from enforcing the Open Beaches Act to impose a public access easement on her private property and to require the removal of her preexisting homes simply because the vegetation has moved to the landward side of her private property. On behalf of Severance, PLF is asking the court to order the GLO Commissioner and other officials to stop using the Open Beaches Act to convert private property into a "public beach" and to stop removing homes just because the vegetation line has moved landward of the owner’s property. Consequently, the suit has the potential to affect all present and future property owners subject to attempts by state officials to take their property for public beach access. About Pacific Legal Foundation Pacific Legal Foundation (www.pacificlegal.org) is the oldest and largest public interest legal organization dedicated to property rights, limited government, and a balanced approach to environmental protection.