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Open beaches

Got the following email from a colleague and thought it was worth mentioning:

Very late Sunday night a “deal” was made in the Texas legislature to make an exemption in the Texas Open Beaches Act – the law that guarantees public access to our beaches.

Rep. Wayne Christian of Center, Texas use to have a beach house on Bolivar. Hurricane Ike destroyed it. I feel badly for him and the thousands of others who lost property. But state law prohibits construction of houses on the public beach. Why? Because its the PUBLIC BEACH, not private beach.

Anyway Rep. Christian wants to build a new house on what is now PUBLIC BEACH, and he snuck a law through that exempts front-row owners in Bolivar to build new houses on our beach. That is bad public policy. Beaches are like public parks, you can live near them but not in them.

Right now, please phone Gov. Perry and respectfully ask him to “veto HB770, building houses directly on the public beach will cost us billions of dollars in the next storm”.

512-463-2000

Rep. Christian was on the conference committee for HB770, which is (I presume) where this amendment was added. The Galveston News had a story about HB770 on Monday.

House Bill 770 started as a bill to allow homeowners whose houses were destroyed by a hurricane to maintain their homestead exemptions — even if a final decision on whether to rebuild hadn’t been made.

But the law also appears to have exempted houses along the Bolivar Peninsula from the requirements of the Texas Open Beaches Act for four years.

Under existing law, buildings must be behind the line of naturally occurring vegetation.

The bill would exempt from state open beaches laws a house “located on a peninsula in a county with a population of more than 250,000 and less than 251,000 that borders the Gulf of Mexico.” Only one area in the state meets that description — the Bolivar Peninsula.

The bill, which was co-authored by Galveston County’s state representatives, Craig Eiland, D-Galveston, and Larry Taylor, R-Friendswood, won unanimous approval in the state House and easily earned passage in the Senate. One of Galveston County’s two state senators, Mike Jackson, R-La Porte, was the bill’s sponsor in the Senate.

Texas Land Commissioner Jerry Patterson, whose agency is responsible for managing the open beaches laws in Texas, blasted the law.

“I don’t think building houses on the beach, with the waters of the Gulf beneath them, is a good idea or good public policy,” Patterson said. “This bill is so poorly drafted that will happen.”

Here’s the bill text. I agree with Commissioner Patterson on this, and think a veto is not a bad idea. And according to today’s Chron, he plans on sticking to his guns.

Land Commissioner Jerry Patterson has asked Gov. Rick Perry to veto the bill containing the amendment. The bill has not yet crossed the governor’s desk, and he will not make a decision until he sees it, said Perry spokeswoman Katherine Cesinger.

“I don’t think building houses on the beach, with the waters of the Gulf beneath them, is a good idea or good public policy,” Patterson said.

If the governor signs the bill, Patterson vowed that he would not enforce the amendment. “My option is just to say, ‘Screw you, Wayne Christian,’ because the Legislature didn’t pass this, one guy passed this,” he said.

Patterson said the Legislature would have to impeach him if lawmakers wanted the provision enforced.

That would be going too far – filing a lawsuit strikes me as the better way to stop enforcement of that law – but at least we know where he stands. Christian, for his part, says this wasn’t about him:

Christian said his vote for the amendment benefited other peninsula property owners and therefore was not a breach of ethics. “If I were to pass a law that affected only Wayne Christian, that would be a conflict,” he said.

At least 12 of his neighbors want to rebuild but can’t without the amendment, Christian said.

The amendment will keep property on the tax rolls that otherwise would be taken off if left undeveloped, Christian said. He also insisted the amendment is “not mine,” because it was put forward by Rep. Mike “Tuffy” Hamilton, R-Mauriceville.

“I did sign with him because I approved the concept,” Christian said. The amendment targeted the Bolivar Peninsula because it bore the brunt of the storm, he said.

He denied that it was improper to add the amendment to a bill so close to the end of the session. “This is not an unethical, deceptive method of doing anything,” Christian said. “This is the way it’s been ever since government was invented.”

Well, that much is certainly true. As has also been the case since government was invented, sometimes these last-minute deals contain unpalatable provisions. And so here we are.

You’ll be hearing more about the Open Beaches Act this November, as the passage of HJR102 means there will be an amendment voted on to make the Open Beaches act part of the Constitution instead of an ordinary law that could be changed by a majority vote in the Lege. The above-linked story, and this Chron story from last week have more info about that.

The push to protect public access comes in the wake of lawsuits challenging what is public and what is private along the 367 miles of mostly wild Texas coastline.

The Open Beaches Act prohibits houses seaward of the vegetation line, which crawls steadily landward as the beaches erode.

While trophy houses, subdivisions and hotels have sprouted along the Gulf of Mexico, rising seas, sinking land and storms have led to the rapid erosion of Texas coastline. By some estimates, as much as 10 feet of beach front washes away each year.

As the sandy shore shifts over decades, a barrier island, such as Galveston, may look the same, but it will be farther landward. Houses that once stood hundreds of feet from the surf will be encroaching on the Gulf.

In some cases, the Texas General Land Office, which is responsible for the coastline, has sued to remove houses from the beach.
Jerry Patterson, the state’s land commissioner, suggested that the proposed amendment wouldn’t change anything along the coast.

“We work every day at the Texas General Land Office to ensure the public’s right to access the beach,” he said.

Property owners contend that the existing state law tramples on their rights and that a constitutional amendment would make matters worse, according to the House’s analysis of the pros and cons of the bill.

J. David Breemer, a Pacific Legal Foundation attorney who is challenging the land office’s enforcement of the Open Beaches Act, said he doesn’t believe a constitutional amendment would insulate the state from lawsuits.

“The issue is how the law is used, not the intent,” Breemer said. “The easement keeps rolling over land that the public hasn’t ever walked and development has already happened.”

Still, beachgoers and environmentalists expressed enthusiasm over the proposed amendment, which cleared the state House on a 140-1 vote and the Senate on a 29-2 vote.

Ken Kramer, director of the Sierra Club’s Lone Star chapter, said the environmental group would campaign in favor of the ballot measure.

“It’s a great issue to elevate people’s awareness of coastal protection,” he said.

This KHOU story has more on that lawsuit. I’ll be voting for this proposition, and I look forward to seeing how the Supreme Court deals with it when that lawsuit, which has been sent its way by the Fifth Circuit Court of Appeals, comes before it.

UPDATE: Land Commish Jerry Patterson keeps pushing this, with a press conference tomorrow in Galveston. From his release:

Texas Land Commissioner Jerry Patterson will hold a press conference at 10:30 a.m. Friday on the beach in Galveston to rally Texans to demand Governor Perry kill a proposed law that would exempt the Bolivar Peninsula from the Texas Open Beaches Act.

The press conference will be on the beach in the Pirates Beach subdivision in Galveston, just seaward of the 4200 block of Ghost Crab Lane.

“Call Governor Perry now and let him know you want to keep Texas beaches for the enjoyment of the public,” Patterson said. “An eleventh hour amendment to HB770 would allow an elite few to rebuild their houses on the public beach or even in the surf. That’s not just a bad idea, that’s bad public policy.”

Patterson urged Texans who love the beach to call Governor Perry’s office at (512) 463-2000 and ask him to veto HB770.

The amendment was covertly slipped into the bill without any public debate on the first day of the 2009 hurricane season, which was the last day of the 81st Legislature.

“As Gulf Coast residents were thinking about the next storm, a few lawmakers were actually sneaking an amendment on to a bill that would allow their neighbors to rebuild their houses on the public beach or even in the surf zone of the area hardest hit by Hurricane Ike,” Patterson said. “That’s just unthinkable.”

Far as I know, there’s been no public comment from Governor Perry yet. He probably won’t say anything until he takes action on the bill, but it’s possible he could telegraph his intent.

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4 Comments

  1. Patrick says:

    This is a bad bill crafted so narrowly and specifically that the self-interest is readily evident. If this is truly a good idea why write the bill so that it only is in effect in one specific area of the state? Why not Galveston or Corpus?

    Oh wait, it’s because the open beach law is a good law and the representative authoring the bill doesn’t have beach property there.

    Moreover, and this is going to sound cruel but it’s true – this bill punishes folks who wisely purchased lots in the 2nd and 3rd row of those beach areas. I know that some of them took into consideration the fact that one day a storm like Ike was going to roll in, push the vegetation line back and make their 2nd and 3rd row houses, 1st and 2nd row houses, which are more valuable.

    Folks on the 1st row took the risk and before the storm enjoyed the reward…but now the chickens have come home to roost. This bill serves a very narrow group of people at the expense of everyone else which is huge hint number one that a bill is bad.

  2. […] would have thought that an otherwise-obscure bill about granting homestead exemptions to people who lost houses in Galveston to Hurricane Ike would become the most controversial bill of […]

  3. Patches says:

    VETO! That poor developer (5th cir. case) who had a very expensive home wash away (oh…she actually claimed it as a homestead but she had other homes) . While very tragic the very act of buying that home with the disclosures that some day that home may very well be on public property was a gamble. Now the developer lost the gamble, knew what was at stake, and now want’s to over turn our open beaches act through a federal lawsuit? What ever happened to “taking your lumps”?. People with money should not make the rules for those of us who do not have money to enact legislation. What if it happens again? (inevitable) What if it happens somewhere else? What if there is no more land to build on? Is she then going to take someone else s property? Are we now going to have to let people on the Bolivar build and live on piers? Do they get there very own “Private” Beach? Hawaii has a similar law but goes a bit further. They have to allow access to the beach through their property if there is no access.

  4. Beach Homeless says:

    it continues to express that only those that have power can lie like dogs and get away with it. while those of us that live with rules and honor like our parents thought take it in the shorts.

    the do as i say not as i do rule sure comes up a lot with politicians!
    Also, the take home message is (which is totally wrong) lie, cheat, steal, lie again, and pass it off as if it were ok just because “it how it has always been done”

    take your lumps like a man, rep. christian, you jack ass…