Whether you believe in global warming or not, there is ample evidence that ocean levels are rising, which has created some very interesting legal issues, namely what happens when a public beach moves onto private property? This is precisely the issue in Surfside, Texas – a small beach town south of Houston. To read an article about the struggle of one homeowner dealing with this issue in Surfside, Texas, NPR has written an interesting article on it.
At issue in Surfside is private property rights and the provisions of the Texas Open Beaches Act, a 50 year old act, which was passed in order to protect the public’s right for "free and unrestricted" access to state-owned beaches.
Enforcement of the Act has effectively resulted in the state and the lowers courts ruling that once land is on a public beach — through erosion or another factor — any private structure has to be moved. Enforcement of the Act has resulted in lawsuits over the state’s ability to enforce the Texas Open Beaches Act. For example, Wayne and Janice Mikeska and Mose and Carol Smith filed a lawsuit against the City of Galveston for its refusal to grant permits for reconnection of their homes to utility services after Tropical Storm Frances.
Until 1998, when Tropical Storm Frances hit the coast of Texas causing erosion of the vegetation line, their homes were landward of the public beach. After Frances, their homes were entirely seaward of the vegetation line- i.e., the homes were completely situated on the public beach as defined by Texas law. Along with 105 other houses that were also fully positioned on the public beach, their properties were placed on the Texas General Land Office 100% List. The 100% List consisted of 107 homes on the Texas coast that, after Frances, were 100% seaward of the natural vegetation line and therefore considered encroachments on the public beach. The 100% List was submitted to the Texas Attorney General to decide whether the listed homes should be removed.
The City of Galveston then condemned their homes, disabling a number of important utilities including electricity, sewer, and water services. Although the Attorney General concluded that their homes did not require removal, the Attorney General’s office notified the homeowners by letter that it was deferring any questions as to the reconnection of utilities services to the City. The owners submitted a number of requests for the reconnection of their electricity, water, and sewer lines. As to the sewer lines, the homeowners requested connection to the City’s newly constructed line. Their requests, along with those from five others were rejected.
The homeowners subsequently filed suit in federal court seeking both a preliminary injunction to force the City to allow the restoration of utility services and compensatory damages. The district court granted the preliminary injunction request, and the appellants pursued their suit for money damages, averring that the City violated their substantive due process and equal protection rights under the color of state law.
On the City’s motion for summary judgment, the district court dismissed the owners’ complaint. According to the district court, the City’s actions were rationally related to the protection of open access to the public beach (substantive due process) and to the City’s obligation to follow state law to "protect the public beaches from interference" (equal protection). The homeowners filed an appeal in the Fifth Circuit Court of Appeals.
The owners argued to the appeals court that neither the City’s persistent denial of the appellants’ requests for utility connections nor its differential treatment of appellants’ homes vis-a-vis similarly situated houses was rationally related to any legitimate governmental interest.
The appeals court ruled that the City must conform its discretionary actions to its constitutional obligations; because the City did not demonstrate the requisite rational relationship to sustain a motion for summary judgment at this stage of litigation, the court vacated the district court’s determination as to the substantive due process claim.
The homeowners’ equal protection claim was based on their contention that there are a number of other similarly situated homes that were allowed reconnection of their utility services. In contrast to a due process action, which looks solely to the government’s exercise of its power vis-a-vis the appellants, an equal protection claim asks whether a justification exists for the differential exercise of that power. To bring such an equal protection claim for the denial of zoning permits, they had to show that the difference in treatment with others similarly situated was irrational. The appeals court ruled that city’s actions indeed were irrational.
This case, along with the ongoing "just compensation" issues raised by the Porters in the NPR article, perhaps foreshadow the various legal issues that may well occur as coast lines continue to encroach on private property.