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Public Use: Texas Works to Protect Rights and Beaches

"Our Beach Drive is the line in the sand."
James Bedward,
Village of Surfside Beach

When erosion eats away the sand in front of a house to the point that it is on state-owned land and is uninhabitable, making the public's use of the beach difficult and dangerous, whose rights are more important—those of the public to use the beach or those of the property owner whose land has been lost? Texas coastal resource managers have developed a compromise to try to protect both public use and private property rights.

"Texas beaches belong to Texans—all Texans," says Jerry Patterson, commissioner of the Texas General Land Office. "We are working to ensure a fair deal for the property owners and keep Texas beaches open to the public."

The compromise is the Texas Open Beaches Act relocation expense reimbursement program, which offers the owners of homes now on state-owned lands $50,000 to help with the cost of moving the structures to a new location. Of the 116 structures on public beaches, the program has focused on 37 houses on Surfside Beach.

"These are the most egregious examples," says Thomas Durnin, a planner for the Texas Coastal Erosion Planning and Response Act, which implements the relocation program. "They all have water under them at least part of the time. Many are a threat to public health because of their condition, which is physically deteriorating. Decks and stairs are starting to come off, and Public use: Texas Works to Protect Rights and Beachesthey impede the public's access to move around on the beach."

Twenty-two of these houses and related debris were removed from the beach this summer by the state and the Village of Surfside Beach, which received Federal Emergency Management Agency (FEMA) mitigation funds to purchase and demolish the worst of the structures.

Village and state officials say removing the houses is a critical step in acquiring state and federal funding to do beach renourishment that will protect 450 homes in the community, as well as a road and other infrastructure.

Access a Right

In Texas, access to the beach is a right founded in state common law, Patterson says.

In 1959, the Texas Legislature formalized this with the creation of the Texas Open Beaches Act, which ensures the right of all Texans to access the beach. Beaches can be privately owned, but owners must allow the public free and unrestricted access to and use of the beach, which is defined as extending from the lowest waterline inwards to the line where plants naturally take root, or the natural line of vegetation.

This creates a rolling easement, as the line of vegetation moves because of winds, waves, tides, storms, and hurricanes.

Under this rolling easement, property may become the state's if beaches erode, "but the reverse could be true, too," Durnin says. "The beaches can accrete, and people can gain property. That does happen in some places."

Losing Ground

Since 1983, much of the Texas coastline has had one of the highest erosion rates in the nation, losing five to ten feet of beach each year.

"Our erosion rate has accelerated to 11 to 13 feet a year in the last four years, says Kelly Hamby, city secretary for the Village of Surfside Beach. "Just in the last three days, we've lost another 6 to 8 inches of elevation."

"With that kind of erosion rate, it's not too difficult to see how structures that have been there for 30 years that were once way back from the beach landward of the dunes are now in front of the vegetation on the public beach," explains Durnin. "The state is not taking that land; it's the forces of Mother Nature at work."

In Surfside, the line of vegetation has moved back to Beach Drive, which is the primary access road along the beach, says James Bedward, mayor of the Village of Surfside Beach. Beach Drive is often damaged during extreme high tides or storms.

"There is not a place to locate another road to provide service to the next row of 85 houses," Bedward says. "Our Beach Drive is the line in the sand."

Changing Course

For decades, the Texas General Land Office struggled with the problem of houses on state-owned beaches, Durnin says. In the past, officials tried litigation to force owners to remove their houses, but that was time-consuming, expensive, and not terribly effective, with only one house ever being removed.

With the number of appeals these cases go through, he says, it's estimated to cost the state $500,000 per case.

In 2004, after Hurricanes Katrina and Rita did severe damage to Texas' beaches, Patterson imposed a two-year moratorium on enforcement of the Open Beaches Act for the 116 houses determined to be located on public beaches. This allowed the natural vegetation line to grow back and gave Land Office staff members time to study the problem.

On Hold

The damage to the beach at Surfside was so bad after Rita, Bedward says, that it was unsafe for the village to reconnect the 37 houses—mostly rental properties—to sewer or water utilities, and the properties were ordered evacuated.

A $3 million beach renourishment project that had been approved for Surfside before Rita was lost because the houses were in the way and the beach had changed so dramatically.

A New Plan

When the moratorium was up, Patterson presented his "Plan for Texas Open Beaches," which included eight proposals—some needing legislative approval—to strengthen and clarify the Texas Open Beaches Act.

While litigation was maintained as a tool for removing structures on state-owned beaches, Patterson offered to help property owners remove their structures from the public beach, making $1.3 million in state money immediately available. The initial offer from the state was $40,000 per house, which was raised to $50,000 after the first offer received a small number of applicants, Durnin says.

The money can be used by property owners to help defray the cost of tearing down or moving the structure to another location, including removing underground utilities and completing final site grading. It, however, cannot be used to cover the cost of a new piece of land.

"It's not completely a free ride, but it does help defray a lot of the expenses," Durnin says.

Because two lawsuits were pending, Patterson says the offer allows property owners to retain their right to sue the state.

Moving Forward

Patterson held a public hearing in Surfside to explain the program and its requirements to residents.

So far, the state has approved and funded 13 relocations off Surfside Beach, as well as one relocation project in Galveston and a demolition at Treasure Island near Surfside.

Simultaneous to the state's offer of assistance, the village received a FEMA Hazard Mitigation Grant to pay volunteer homeowners full market value for some of the homes that were in the worst condition.

Before closing out their FEMA grant in October, the village paid $103 a square foot for nine homes and paid for their destruction and removal. An owner of four houses that were eligible for the buyout did not take the offer.

The property that was bought with the grant will become a village park, notes Bedward.

Rulings in both of the lawsuits against the state came down this summer on the side of the Texas Open Beaches Act. The remaining houses were ordered to be removed, but an appeal in at least one of the cases could still be filed.

Working Together

Patterson is reluctant to call the relocation program a success until all the houses are removed from Surfside Beach.

"Our objective is to get these houses off the beach so we can renourish the beach and save the next row of houses and infrastructure," Patterson says.

Durnin and Hamby both say that Patterson has provided an innovative solution to a problem that has stymied his predecessors for decades, and that the first phase has been a success.

"I don't think we are there yet," Patterson says, "We're moving in the right direction, and we're doing it in a fair manner, but there's still a lot of work to do."


For more information on the Texas Open Beaches Act relocation expense reimbursement program, visit www.glo.state.tx.us/coastal/beachdune/openbeaches.html. You may contact Jerry Patterson, c/o Jim Suydam at (512) 463-2716, or Jim.Suydam@GLO.STATE.TX.US. Contact Thomas Durnin at (512) 463-1192, or Thomas.Durnin@GLO.STATE.TX.US. For more information on the FEMA Hazard Mitigation Grant Program, go to www.fema.gov/government/ grant/hmgp/.

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