Lawsuit seeks to block removal of houses
Published August 1, 2006
GALVESTON — A California-based legal foundation has sued to stop the state of Texas from removing houses from the public beach.
The lawsuit was filed on behalf of California attorney Carol M. Severance, who spent nearly $1.2 million for three beachfront rental properties last year.
The lawsuit filed by J. David Breemer, an attorney with the Pacific Legal Foundation, comes in response to a plan by the Texas General Land Office to offer homeowners up to $40,000 each to move their houses from the public beach. The foundation specializes in private property rights.
On Monday, Jim Suydam of that office’s communications staff said he could not respond to claims in the lawsuit.
“What I’d like to say and what I can say are two different things,” he said. “The lawyers have put the clamps on.”
Land Commissioner Jerry Patterson had announced in June his plan for enforcement of the Open Beaches Act. Last month, he followed up by sending letters to invite affected homeowners to apply for reimbursement of up to $40,000 of the cost of moving their houses further inland.
“It is my duty to enforce the Texas Open Beaches Act, but it is my hope to be able to work with these property owners and avoid costly litigation,” he said at the time.
According to the land office, two of Severance’s houses — at 13107 Bermuda Beach Drive in the Bermuda Beach subdivision and at 22716 Kenedy Drive in Sea Isle — are entirely on the public beach. The land office says the third — a house at 21238 Gulf Drive in Sea Isle — is 50 percent on the beach.
Severance bought all three houses in March and April of 2005, nearly a year after Patterson’s office placed them on a list of houses deemed to be in legal limbo.
In her lawsuit, Severance acknowledges that she signed a disclosure when she bought the properties saying that the houses might be subject to legal action should they be found to be on the public beach.
“Nothing in the purchase contract for plaintiff’s properties states that compensation will not be provided if it is determined that a public beach easement exists on the properties, nor does any provision say that an action to remove a home seaward of the vegetation line will occur without just compensation,” the lawsuit states.
The lawsuit also notes that Severance paid more than $20,000 in property taxes on the three properties. It contends that all three are well maintained and notes that not one is standing in the water.
“Plaintiff’s homes do not otherwise interfere with public beach access,” the suit says. “Plaintiff’s homes are not a threat to public health or safety. The act cannot be enforced to require the removal of plaintiff’s homes as such action is not rationally related to a legitimate state interest.”
The lawsuit, filed last week in U.S. District Court, seeks to block state and local officials from seeking to remove Severance’s houses from the beach. If that fails, the lawsuit seeks just compensation for the houses.
The three homes at issue in the lawsuit represent only part of Severance’s Galveston real estate holdings. She owns two other houses and some land in Galveston, and she’s in the process of closing on the purchase of a house north of Houston.
Severance said her investments in Galveston real estate came after some study.
“I went to visit areas I thought were developing and had good, solid growth potential,” she said.
She visited the Virgin Islands, Mexico and Galveston, and she settled on Galveston.
“I love Galveston,” she said. “I don’t plan to move there, but I like to visit a lot. I was in Galveston four or five times last year.”
She said she planned a visit this month.
In a news release last month, the land office said the reimbursement program represented the first time the state had worked to cooperate with homeowners to resolve the long-standing problem of private homes on the public beach.
“I’d rather assist a property owner than sue one,” Patterson said at the time. “But either way, I’m committed to resolving this problem. Texas beaches must be open for all.”
The news release said those who did not apply by the Oct. 2 deadline might not be eligible for future reimbursement.
“I know $40,000 may not cover all the cost of moving a house, but this is just the first step,” Patterson said. “I will continue seeking additional funding to help these property owners get off the beach, and I pledge to find more ways to work with those who are willing to do what is required.”
Patterson said he hoped the land office would be able to approve every application filed, but he said if the total cost of applications exceeded the money available, he would have to prioritize the requests.
In that case, he said, priority will go to structures that pose a threat to public health and safety or those that block public access to the beach.
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On the Web: Pacific Legal Foundation: www.pacificlegal.org
Texas General Land Office: www.glo.state.tx.us
