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Texas Open Beaches Act

Another setback for open beaches

At this rate, the concept of “open beaches” is on its way to becoming an anachronism.

The Texas Supreme Court dealt another blow Friday to the Texas Open Beaches Act in a case pitting beachfront property owners against the city of Surfside.

The court overturned an appeals court ruling upholding Surfside’s refusal to permit repairs or extend utilities to houses that the Texas General Land Office determined were in the public right-of-way as a result of beach erosion. It asked the lower court to reconsider its decision in light of the state Supreme Court ruling last year in the Severance case, which weakened the Open Beaches Act.

Angela Brannan and 12 other beachfront home-owners had argued that efforts to force them to remove their houses from the public right-of-way amounted to an unconstitutional taking of their property.

Voting to overturn the appeals court decision siding with the city were justices Nathan L. Hecht, Paul W. Green, Phil Johnson, Don R. Willett, Eva Guzman and John Phillip Devine. Not participating were justices Debra Lehr-mann, Jeffrey S. Boyd and Chief Justice Wallace B. Jefferson.

One bad ruling leads to another. Where will it end?

Making open beaches a campaign issue

This is great.

Michele Petty

The Texas Supreme Court’s decision weakening the state Open Beaches Act has become a key issue in the race for one of the two contested Supreme Court seats in the Nov. 6 election.

San Antonio attorney Michele Petty stood in front of a battered beach home in Surfside last weekend to criticize her opponent, Justice Nathan Hecht, for siding with the majority in Severance v. Patterson, the case that led to the controversial decision.

“Texans have shown their love for their beach and they want access to the beach, and the Texas Supreme Court has ignored that,” said Petty, who would be the only Democrat on the court if she defeated Hecht. Hecht did not respond to a request for comment.

The Open Beaches Act historically has been interpreted to allow the public beach to move landward with erosion, a concept known as a “rolling easement.” The court said the rolling easement does not apply if the erosion is sudden, as in the case of a storm. Although the decision applied only to West Galveston Island, it potentially could affect other areas of the coast.

“We now have private beaches in Texas where the public can be excluded,” Land Commissioner Jerry Patterson said after court issued its 5-3 decision in April. The ninth justice, Chief Judge Wallace Jefferson, did not participate.

Patterson, a Republican, would not go as far as supporting Petty, but said, “It’s an issue and the voters need to be aware of it.”

Patterson has been making an issue of this for awhile now. I’ll give him a pass on not going all the way – he does want to be the Republican candidate for Lite Guv in 2014, after all. Supreme Court races are generally low profile and the issues that usually get brought up don’t often resonate with voters. This time it may be different. Here we have the confluence of a longtime incumbent, a ruling that has been criticized across the political spectrum, a newsworthy issue, and a candidate who appears to be savvy about earned media. Michele Petty may not win this fall, but if she doesn’t it won’t be because the stars refused to align in her favor for her.

Fifth Circuit sends open beaches lawsuit back to district court

Unfortunately, the headline makes it sound like better news than it is.

A federal appeals court Monday ruled that the Texas Open Beaches Act is unconstitutional in the case of a Galveston Island property, a ruling that puts the fate of Texas public beaches in doubt.

The 5th U.S. Circuit Court of Appeals sent the case back to Houston federal district court for retrial, but said that few issues were left to be decided.

“What issues must now be determined, aside from attorneys’ fees accruing to the appellant, is unclear,” the three-judge panel said in a three-paragraph opinion.

Chief Circuit Judge Edith Jones and Circuit Judge Edith Clement relied on an April advisory opinion by the Texas Supreme Court that essentially said the Open Beaches Act does not apply on West Galveston Island if the beach is rapidly eroded by storms, known as avulsion, rather than slowly eroded.

I was a little confused when I first read this, but after exchanging emails with the General Land Office, I got straightened out. A succinct explanation is in this 2010 Chron story about the original Supreme Court ruling.

[Plaintiff Carol] Severance initially filed suit in federal district court, which dismissed the case. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s dismissal but sent some questions to the Texas Supreme Court for answers, prompting Friday’s ruling.

And then the Supreme Court ruling prompted the Fifth Court to finish its task, which came back to them after the Supremes affirmed their ruling in April. As the Tuesday story says, there’s not much left for the district court to sort out, but there are sure to be more lawsuits filed by other beachfront property owners. One possible outcome of that, as former Land Commissioner Garry Mauro wrote in the Trib is that this could lead the Supreme Court to limit the scope of its ruling to lots on Galveston’s West Beach. Before that happens, voters will have a chance to take Commissioner Patterson’s advice and give a verdict of their own on the judges who voted against open beaches. Assuming he doesn’t get booted off the ballot, Justice Nathan Hecht faces Democrat Michele Petty in November. Remember that race when it’s time to vote.

Patterson wants to vote out anti-open beach Supreme Court justices

Fine by me.

Lex Luthor does not approve this message

Voters should replace the five members of the Texas Supreme Court who issued an opinion weakening the state Open Beaches Act, Land Commissioner Jerry Patterson said Monday.

“We now have private beaches in Texas where the public can be excluded,” Patterson said. “I think folks should remember this when it’s time to vote.”

[…]

In an 5-3 decision, Justice Dale Wainwright wrote that the Open Beaches Act “does not create easements for public use along Texas Gulf-front beaches.” Public access exists only where established by long-term use, the opinion said.

Public access continues as gradual erosion moves the beach landward, but it ends if the beach is eroded by an “evulsive” event, such as a storm, according to the opinion. Justices Nathan L. Hecht, Paul W. Green, Phil Johnson and Don R. Willett joined Wainwright.

See here for some background. For the record, Justices Hecht and Willett are on the ballot this year. Willett has a primary opponent, while Hecht will be challenged in November by Democrat Michele Petty. (Justice David Medina, who dissented, is also on the ballot and has two GOP primary challengers, one of whom is the ever persistent John Devine.) When you go to vote in these races this year, just remember what Jerry Patterson said and you’ll be fine. Burka has more.

Supreme Court keeps beaches closed

Phooey.

Affirming the private-property rights of shoreline landowners, the Texas Supreme Court ruled Friday that the public’s right of access to state beaches cannot be guaranteed when hurricanes or storms reshape the coast.

The sharply divided ruling will limit the state’s ability to enforce the Open Beaches Act, a 53-year-old law that had been used to force landowners to raze or move structures that intrude on the public right of way because of storm erosion.

Writing for the 5-3 majority, Justice Dale Wainwright said the easement that preserves public access to Gulf of Mexico beaches cannot suddenly jump many feet inland after a storm, encroaching on private property where no easement previously existed.

“On one hand, the public has an important interest in the enjoyment of the public beaches. But on the other hand, the right to exclude others from privately owned realty is among the most valuable and fundamental of rights possessed by private property owners,” Wainwright wrote.

[…]

Public land, owned by the state, runs from the high tide mark to the water and is known as the “wet beach.” Friday’s ruling did not change this concept.

Instead, the ruling focused on the “dry beach,” which runs from the high tide mark to the vegetation line and may be privately owned.

Under the Open Beaches Act, the dry beach also is typically subject to an easement that keeps it open to the public.

[…]

In its ruling, the Supreme Court acknowledged that the public beach easement can subtly shift to follow natural patterns of erosion. It cannot, however, jump to encompass previously private property after a storm, the court said.

Remember the Christopher Reeves Superman movie? Lex Luthor buys up a bunch of seemingly worthless land in the middle of the desert in California, then hatches a plot to detonate a nuke in the San Andreas Fault, thus causing a massive earthquake that results in most of the coastline to fall into the ocean and turn his desert wasteland into valuable beachfront property? Basically, on two separate occasions, the Supreme Court of Texas has sided with Lex Luthor. That’s what this comes down to. Forrest Wilder has more.

Federal court refuses to throw out Open Beaches lawsuit

I hadn’t realized that there was federal court action on the Galveston open beaches case.

The 5th U.S. Circuit Court of Appeals denied a request by the General Land office that it throw out the case because the beachfront house at the heart of the lawsuit had been sold.

The three-judge panel’s decision keeps alive a case challenging the constitutionality of the Texas Open Beaches Act.

The Land Office had asked the court to rule the case was moot because the San Diego attorney who filed it, Carol Severance, had sold her rental property to the city of Galveston under a federally funded program aimed at homes that flooded repeatedly.

The two-paragraph opinion by appellate judges Edith Jones, Jacques Wiener Jr. and Edith Clement said that Severance could be subject to penalties even though she sold her house, and therefore could maintain her lawsuit.

The “briefing persuades us that under Texas law, Carol Severance remains exposed to potential liability for alleged violations of the Texas Open Beaches Act,” the opinion reads. The opinion is unpublished and does not say whether the denial was unanimous or who wrote it.

“The effect of this is it allows Ms. Severance to continue her crusade to destroy the Open Beaches Act,” said Land Office spokesman Jim Suydam.

The Land Office has asked the State Supreme Court to reconsider its decision based on the fact that Severance sold the property in question. No word on when that might happen.

State asks Supreme Court to vacate Open Beaches ruling

Apparently, the original litigant no longer owns the house in question.

San Diego, Calif., attorney Carol Severance, who brought the lawsuit challenging the Open Beaches Act, sold the storm-battered property last week to the city of Galveston. Money for the purchase came from a Federal Emergency Management Agency buyout program for homes in areas prone to repeated flooding to ensure that nothing is built there again.

The Texas General Land Office sent a letter to the court last week arguing that the opinion issued in November favoring Severance is no longer relevant now that the house has been sold.

“Vacating the opinion would avoid confusion and unnecessary litigation about what that decision means,” Land Office spokesman Paul Sturrock said.

The Land Office noted that Severance had said in filings to the Supreme Court that she would delay selling the house until the case was resolved.

Severance sold the house at 22716 Kennedy Drive for $335,686. The property, badly damaged by Hurricane Ike in September 2008, was valued at $202,720 for tax purposes before the storm. The 2010 tax value was $1,690.

You can see what kind of hardship the poor woman has suffered as a result of all this. The Court was originally asked to reconsider its ruling in December; it agreed to rehear arguments in March, and actually heard them in April. As Burka points out, if they vacate their ruling they’re not addressing the merits of the original case, they’re simply saying it didn’t count. The issues would remain to be determined again by the Court if and when a future litigant came along.

Supreme Court rehears Open Beaches case

Not sure it’ll be any different this time around, but at least there’s a chance.

The Texas Supreme Court appeared closely divided Tuesday during a second round of arguments in a turf battle over who controls the beach after a storm moves the vegetation line landward.

The hearing came five months after the court ruled in a 6-2 decision that the state cannot take private property for a public beach because of a sudden change to the coastline.

[…]

Justice Dale Wainwright, for one, questioned whether a beachfront property owner should reasonably expect to lose his or her land to the state because of the ever-shifting vegetation line.

He also suggested that the public right to the dry beach was too expansive.

“What is the limit on how far this easement can migrate or roll?” Wainwright asked Assistant Solicitor General Daniel Geyser, representing the state.

Geyser argued that people buy property along the coast at their own risk and with the knowledge that the rolling easement is common law.

Justice Paul W. Green went further, asking if the state thinks it’s unreasonable for property owners to build along the beach.

“Not at all,” Geyser said, “because they enjoyed the use of the property while it has not actually been swallowed by the water. It’s important to remember that if the water rises up and submerges the land, title shifts to the state. But it doesn’t mean they’re unreasonable for locating there. It’s just a risk.”

I’ve blogged about this before and I don’t know what else there is to say at this point other than I agree with the state’s position. I still don’t understand how the original ruling in this case is compatible with the constitutional amendment we passed two years ago. While I don’t expect the Supreme Court to rule differently this time, I do note that there are two Justices who were not part of that original ruling, so I suppose there is the potential for change. We’ll see how it goes.

Supreme Court will review Open Beaches ruling

This is encouraging.

Faced with a tidal wave of legal protests, the Texas Supreme Court Friday agreed to reconsider a California woman’s lawsuit that ended in a controversial ruling last November that left public access to some beaches in question.

The court’s decision to reopen the Carole Severance case — oral arguments will begin April 19 — came at the behest of Texas Land Commissioner Jerry Patterson.

Harris County and the city of Galveston joined 18 other area counties, cities and chambers of commerce in submitting friend of the court briefs supporting Patterson.

“This is nothing less than a second chance for the Texas Open Beaches Act,” Patterson said in a statement. “Public access to the beach is a Texas tradition that predates the Republic. Today’s decision by the court to take another look at its decision in this case is great news.”

Houston lawyer Barry Abrams, who acted as outside counsel for the city of Galveston in filing an amicus brief, credited the “fire storm of controversy” and the large number of entities filing briefs supporting Patterson with convincing the court to revisit its ruling.

“Hopefully,” he said, “this will reaffirm the public’s long-honored rights to use coastal beaches that the prior decision disrupted.”

See here, here, here, and here for some background. According to the Statesman’s Austin Legal blog, “Motions to rehear are rarely granted and hard to decipher, sometimes resulting in changed rulings, sometimes in nothing more than minor factual or technical corrections to the original opinion.” As such, no one should get their hopes up too much just yet. It’s nice to see, but it may turn out to be nothing.

Amicus briefs filed in Galveston beach case

Good for you, Vince Ryan.

Harris County today joined other public agencies and activists in urging the Texas Supreme Court to reconsider a recent opinion that critics contend blocks public access to most beaches on Galveston island.

County Attorney Vince Ryan filed a friend-of-the court brief on behalf of the county and the Texas Conference of Urban Counties. The brief supports a request by Texas Attorney General Greg Abbott for a rehearing on a Nov. 5 decision he says amounts to the overturning of the state Open Beaches Act, which voters made part of the Texas Constitution last year.

[…]

Similar briefs have been filed by the city of Galveston, environmental attorney Jim Blackburn and former legislator A.R. “Babe” Schwartz, who helped write the Open Beaches Act. Kendall County was expected to file an amicus brief today.

So far all the amicus briefs filed since Nov. 5 support the attorney general, who is defending Texas Land Commissioner Jerry Patterson in a lawsuit brought by San Diego attorney Carol Severance that led to the state Supreme Court decision.

[…]

Terry O’Rourke, first assistant Harris County attorney, said that every beach in Texas eventually will be hit by a storm.

“If you read the opinion as written, you are looking at the end of public beaches,” O’Rourke said.

The decision created private beaches on Galveston island and the frequency of storms eventually will render all public beaches private, O’Rourke says.

The vagueness of the decision allows beachfront property owners to point to the last storm and declare their beach private, Blackburn says in his brief.

I still don’t quite understand why the 2009 amendment that basically added the Open Beaches Act to the state constitution doesn’t moot this ruling, but clearly it didn’t, so here we are. I also still think that the best solution here is going to be a legislative one, perhaps another amendment, which ought to be doable given the support for overturning the Court’s decision from the likes of Patterson and Abbott. Someone will need to step up and sponsor a bill or joint resolution first, though.

Patterson on the Open Beaches ruling

I must say, I enjoyed Land Commissioner Jerry Patterson’s op-ed on the recent Open Beaches ruling by the State Supreme Court. The man can bring the snark, I’ll give him that. Two points of interest besides that:

Texans, you see, can be such a hard-headed lot. Most of us ignorantly thought passing the Texas Open Beaches Act in 1959, and voting overwhelmingly to enshrine this right in the state’s Constitution in 2009, would keep the beaches open. With this public access came opportunities for public money.

I don’t quite understand how there could be a constitutional issue with something that was added to the Constitution. Isn’t something in the Constitution by definition constitutional? Perhaps the issue is that the litigation predated the amendment, or perhaps the amendment wasn’t on point, I don’t know. I have not seen it discussed anywhere. If someone who understands this better than I do could tell me what I’m missing, I’d appreciate it.

The Open Beaches Act isn’t dead. Breemer’s brag that the “law won” for his side is deceptive. The Texas Supreme Court affirmed that submerged lands, between mean low tide and the mean high water mark, are owned by the state. Breemer lost that argument. The Supreme Court opined that a rolling beach easement does exist in Texas common law. Breemer lost that argument too, which answers, in part, two of the three questions the Fifth Circuit Court of Appeals had for the Supreme Court.

I wouldn’t expect Patterson to note this, but someone needs to say that it was an all-Republican Supreme Court that handed this ruling down, both the parts that Patterson is touting and the parts that he thinks were wrong.

State Supreme Court asked to reconsider open beaches verdict

Good luck with that.

Galveston has joined key state agencies in pleading with the court to reconsider a ruling that favors private property rights over public access to Texas shores.

“I think the Supreme Court really needs to understand the impact of its ruling. It’s not just a theoretical question — they just changed Galveston Island’s ability to nourish its beaches,” Mayor Joe Jaworski said.

“These are Texas’ beaches,” he said. “It’s ironic that the Supreme Court has essentially said it’s every man for himself.”

Jerry Patterson, the Texas land commissioner, said he canceled the beach project because the court ruling removed the guarantee of public access to the area, which extends west of Galveston’s seawall to 13 Mile Road . The Texas Constitution forbids spending public money to benefit private property.

“Our hands are tied now,” Patterson said at the time.

[…]

Late last week, Galveston County joined a motion by Patterson and Attorney General Greg Abbott that asked the Supreme Court to reconsider its ruling as unwise, unsound and unworkable.

The motion for rehearing argued that the ruling disregarded the state’s long-valued tradition of public beach access. The court also ignored its own precedents and the policies of “every other branch of Texas government” when it declared that the public beach easement lasts only until the next devastating storm, the brief said.

The motion also warned that the ruling threatens other beach-restoration projects, not just the canceled Galveston effort.

“In the absence of a clear public easement, the state also lacks any clear authority for pursuing the kind of essential beach-renourishment projects on which the local economies of our coastal communities depend,” the brief said.

See here for more. I don’t have a whole lot of faith that the court will take any action, but it’s worth a shot to ask them. You’d also think, if Abbott and Patterson are on board with this, that it ought to be possible to get a constitutional amendment to correct the court’s erroneous ruling through the Lege. I hope someone is thinking about that.

The cost of closing the beaches

The recent Supreme Court ruling predictably leads to the enrichment of a lucky few.

Although Carol Severance’s lawsuit killed the largest beach resanding project in Texas history, her four Galveston beach properties won’t suffer.

Instead, she could walk away with more than $2 million from the sale of her hurricane-damaged houses at pre-storm prices.

The money comes from a federal program to buy houses in hazardous areas. Twenty-five percent of the buyout will be paid by the Texas General Land Office, the same agency she sued in a case that led the Land Office last week to cancel a $40 million project that would have placed fresh sand on six miles of beach west of the Galveston Seawall.

“It’s an ironic result that someone who has been at the trough has also caused the loss of all these public resources to the west end beach front,” said Galveston city Councilwoman Elizabeth Beeton.

Severance, a lawyer living in San Diego, Calif., says she brought her lawsuit because she believes in private property rights.

Heck of a job, State Supreme Court! I’m imagining an attack ad that would run against the justices who are up for re-election in 2012 that speak in ominous tones of how they gave millions of your tax dollars to a bunch of California lawyers that lost their fancy beach houses to Hurricane Ike. What I have a much harder time imagining is a funding source for such an ad. Alas.

Is this the end for truly open beaches?

From last week:

The Texas Supreme Court ruled Friday the state cannot take private property for a public beach when a storm moves the vegetation line landward — a decision that may lead to restricted access along the coast.

Texas law allows anyone to place a blanket on the beach, right up to the vegetation line, even if it’s an intrusion on the privacy of a seaside home.

But in a split decision, the court found that the state’s policy of “rolling easements” – the ever-shifting border between public and private land – does not apply when the vegetation line is moved by a storm.

The boundaries may move because of erosion, which is a gradual occurrence, but “the state cannot declare a public right so expansive as to always adhere to the dry beach,” Justice Dale Wainwright wrote in the court’s 6-2 opinion.

“This could divest private owners of significant rights without compensation,” he wrote, “because the right to exclude is one of the most valuable and fundamental rights possessed by property owners.”

Justice David Medina, who wrote the dissent, argued that the court’s vague distinction between gradual and sudden changes to the Texas coast jeopardizes the public’s right to open beaches, “recognized over the past 200 years, and threatens to embroil the state in beach-front litigation for the next 200 years.”

I’m not qualified to judge the legal merits of these opinions, but philosophically speaking I have very little sympathy for the plaintiffs here. I do believe that the public’s right to the beaches outweighs their right to build wherever they want to, and I believe that they should have known the risks of building so close to the vegetation line. Hurricanes happen, and I say they don’t deserve any special consideration for them. Justice Medina is right, and this ruling is badly misguided.

Jim Suydam, a spokesman for the General Land Office, said the state agency would not comment on the decision until after its attorneys had more time to review it.

“The opinion raises a lot of questions” about how the state enforces the Open Beaches Act, Suydam said.

The 50-year-old state law guarantees public access to every inch of the 367-mile Texas coast, from Sabine Pass to the Mexico border. It’s so popular that more than 80 percent of Texas voters decided last year to include the Open Beaches Act in the state’s constitution.

Just curious here. Given that the Open Beaches Act is now in the Constitution, what exactly are the legal implications of this ruling? Why wouldn’t that override the issues in this lawsuit? Any lawyers want to address that? Thanks.

The Chron on Prop 9

Proposition 9 on the ballot would make Texas’ Open Beaches Act of 1959 and add it to the state constitution. This Chron story is an overview of it.

“People who use the beach think of it as a public park,” said Ellis Pickett of the Texas Surfrider Foundation, which is campaigning in favor of the proposition. “That’s why this is so important. It ensures that the coast of Texas will be a public park forever.”

Texas Land Commissioner Jerry Patterson, whose office regulates beach access and other land issues, also is in favor of the ballot measure.

“Our freedom to walk on any beach we choose is unique – and under threat,” he wrote in an opinion piece sent to newspapers throughout the state. “Developers, overpaid lawyers and even the members of the Legislature fail to appreciate this freedom.”

You can read Patterson’s piece here, which I mentioned on October 13. Patterson also included an anti-Prop 9 article when he sent out his op-ed, which you can read here. The crux of the opposition is this:

While houses 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 washes away each year.

That means some houses, once hundreds of feet from the surf, now are in the public right of way. And the state has ordered their removal, prompting two legal cases challenging to the Open Beaches Act, including one to be heard by the Texas Supreme Court next month.

Brooks Porter, one of the plaintiffs, claims the state took his Surfside Beach property without paying fair-market value after Tropical Storm Frances in 1998 moved the vegetation line .

I suppose I see it as Patterson does, that this is nature and not the state of Texas that’s taking their property. I’ll be interested to see what the state Supreme Court makes of this. I presume that if Prop 9 passes, there can be no more lawsuits of this kind.

Endorsement watch: Takings

The Chron endorses Prop 11, which is the constitutional amendment to limit eminent domain takings that were allowed by the Supreme Court’s 2005 Kelo ruling.

[It] would prohibit “the taking, damaging, or destroying of private property” for purposes of economic development. The Houston Chronicle urges a vote for Proposition 11.

It was for good reason that the high court ruling in Kelo v. City of New London alarmed many property rights advocates here and elsewhere. It upheld the taking by right of eminent domain of private residences by the Connecticut city for purposes of economic development and expanding the tax base. Proposition 11 would prevent takings of property for either of those reasons.

Preventing takings for economic motives is consistent with Texans’ historically strong support for property rights. At the same time, it would not impede eminent domain takings for necessary purposes.

In situations where economic development is the objective it is simple fairness to give property owners the benefits of choice, and of a marketplace sale. To force a sale upon them under such inflexible circumstances is inimical to constitutional principles enumerated in the takings clause.

Opponents contend a constitutional amendment is unnecessary and that the state courts should be allowed to clear up any potential problems in Texas. Maybe so, but that is no match for the carved-in-stone finality of an amendment.

Maybe it’s just my distrust of anything pushed by Rick Perry, but I’m not sold on Prop 11. I fear that this amendment will be interpreted too broadly, and since it’s an amendment it’d be near impossible to fix. But maybe I’m just being paranoid. Can anyone convince me one way or the other on this?

In other constitutional amendment news, Land Commissioner Jerry Patterson wrote an op-ed in favor of Prop 9, and in the interest of equal time sent it out with an opposing argument, which was written Pacific Legal Foundation attorney J. David Breemer. You can read Patterson’s piece here, and Breemer’s piece, which is more about the Open Beaches act in general and not specifically about Prop 9, though if you agree with his position you’d certainly vote against it, here.

Endorsement watch: The Chron goes Green

In their first endorsement for an elected office on the ballot this November, the Chronicle endorsed Council Member Ronald Green for Controller.

A practicing attorney with a master’s in business administration from the University of Houston, Green chaired the Council Budget and Fiscal Affairs Committee, and says the biggest challenge for the next controller will be saving money by finding efficiencies and ways to close a widening budget gap.

“Over the past six years we’ve enjoyed some good times, but now we’re going to have to make some tougher decisions,” says Green. “I’m proud of the fact that we built up our cash reserves, but unfortunately it’s raining, and we’re having to dip into our rainy-day funds.”

During his council tenure Green says he worked hard to improve the operations of the city municipal courts system, making it more customer-friendly while replacing a failed computer system. A winnowing process of evaluating judges and a court outreach effort to the neighborhoods has made it more responsive and efficient.

He cites as a success his trip to Washington, D.C., to lobby Federal Emergency Management officials to approve reimbursements for expenditures to aid Hurricane Katrina evacuees who had previously been denied.

If elected controller, Green says he will scrutinize the city’s existing long-term contracts to make sure Houston is getting the best possible deals. He points to the successful renegotiation of a solid-waste disposal pact with Republic Waste that will save more than $150 million over the next decade.

He would press the city to include clauses in contracts with technology vendors to provide training for city employees.

“We spend a lot of money on outside contractors, and what we don’t get is a knowledge-transfer piece of the contract,” says Green. “So we’re always having to feed the monster … on the hook forever with consultants to come in and work the system.”

On the complicated issue of unfunded liabilities in the city’s three pension funds, Green says he would work with employee representatives to begin shifting to a system that realistically balances contributions and benefits for incoming workers.

Green promises to be a full-time city controller, and to forgo his private law practice if elected. That will be essential in effectively filling the evolving, expanding role of the office.

In his council tenure Green has proven he can work closely with the mayor while maintaining independence and advocacy for his constituents. His track record indicates he will be able to do the same as city controller.

This should be a nice boost for a campaign that isn’t spending a lot of money. CM Green is my choice in this election, and as such I’m glad to see him get the endorsement, but I continue to be concerned about the low profile of his campaign, especially given the quality of his opponents and the resources they have to get their message out. You can listen to my interview with CM Green here, and you can compare what he had to say with Council Member Pam Holm here and Council Member MJ Khan here.

Today was an endorsement twofer, as the Chron also gave a thumbs-up to Proposition 9, the Constitutional amendment that would essentially add the Open Beaches Act to the state constitution.

Supporters of this amendment to the Texas constitution say strengthening the open beaches act is needed to keep public access free, clear and open in the wake of storms, such as Hurricanes Rita and Ike, that can radically shift the tidal and vegetation lines on Texas beaches. These shifts can put privately owned beach houses on public property, causing confusion about legal access.

Amendment opponents say entrenching the open beaches act in the Texas constitution would give the state excessive powers that would infringe upon the rights of beach-property owners to use and enjoy their homes.

We believe strengthening and clarifying the laws relating to public access, as Proposition 9 would do, is both proper and necessary. As Texas Gulf Coast residents know all too well, Mother Nature can change the landscape of beaches abruptly. That is one of the acknowledged risks of building a vacation home on the sand. Granting a permanent public easement onto our beaches seems likely to avoid confrontation and confusion while ensuring the broadest possible access. In short, it is in the spirit of opening beaches that has been built in Texas over half a century.

Prop 9 is probably the next highest profile amendment after Prop 4, which appears set to cruise towards ratification. I’m still not sure how I’m going to vote on a lot of these amendments. If you’re seeking guidance, I recommend State Rep. Scott Hochberg, and for a view from the right, Blue Dot Blues.

New beach boundaries

We have a new vegetation line, which determines where the public beach ends and private property begins, courtesy of Land Commissioner Jerry Patterson.

The line will determine whether beachfront property owners whose buildings were destroyed by Ike on Sept. 13 will be able to rebuild or possibly lose their houses to the public beach.

Patterson published new maps at TexasBeachAccess.org showing the new vegetation line.

[…]

Ike chewed away the shoreline, reducing his 198-foot lot to 8 feet. But beaches tend to rebuild themselves and, after checking the Texas General Land Office Web site, McConnell found that he now has 195 feet of property.

“As promised, I gave the natural line of vegetation a year to recover,” Patterson said. “In those areas where it has recovered it will be the boundary of the public beach.

“In areas where it hasn’t, I’ve drawn the line at mean low tide plus 200 feet,” he said.

The mean low tide line is the average of all daily low tide lines over 19 years.

Patterson said beachfront property owners who find that their buildings are on the public beach as a result of the new vegetation line will be left alone unless they block beach access or pose a health or safety risk.

He said it is too early to know how many structures that are now on the beach would have to be removed or how many properties would be barred from rebuilding. Patterson said it was likely that some houses on Galveston Island would have to be removed. It is less likely that houses on the Bolivar Peninsula will have to be moved because so few structures near the beach remain standing, he said.

In case you were wondering, State Rep. Wayne Christian and his beach house wound up on the right side of the line, meaning that he could have saved himself some trouble. Some guys have all the luck. A press release from Commissioner Patterson about this is beneath the fold.

(more…)

More on Perry’s vetoes

Governor Perry’s veto of SB2468, the “revolving door” restrictions bill for Harris County, has puzzled its sponsor.

In his veto message, Perry said he rejected the ethics bill, authored by Sen. Mario Gallegos, because it addressed lobbying matters and related criminal penalties only in Harris County, not statewide, and thus characterized it unconstitutional.

Gallegos, a Houston Democrat, said he was surprised at the veto because the bill’s language had been revised to address constitutional issues and further because the governor’s office called him around noon Friday saying Perry was going to bless it.

But around 7:15 p.m., Gallegos said, the governor’s office called again and said the attorney general’s office had declared it unconstitutional.

“I was told several people from Harris County called him (the governor) and told him to the veto the bill. It was a good ethics bill,” Gallegos said.

The so-called “revolving door” restriction required former county employees to wait two years before lobbying.

You would think that a basic concept as a constitutional prohibition on criminal penalties that apply in one part of the state but not in other parts would have come up earlier in the process than this. Sen. Gallegos is suggesting that the people who would be affected by the bill’s restrictions managed to convince Perry to maintain the status quo. I have to say, that strikes me as a much more likely explanation than a sudden discovery that the bill was unconstitutional.

Speaking of bills tailored to specific counties, here’s the story on HB770, which became law by default.

Even though a provision allowing a lawmaker’s beach house — and those nearby — to be rebuilt in an exemption from the Texas Open Beaches Act was not vetoed by the governor, the measure is too flawed to be enforceable, the state land commissioner said Friday.

Commissioner Jerry Patterson said the provision won’t pave the way for the rebuilding of Rep. Wayne Christian’s home or any other one on public beaches.

“It will be the policy of the Texas General Land Office that notwithstanding the Christian amendment, no structure will be rebuilt if it will interfere with the public right to access Texas beaches,” said Patterson, who has railed against the provision but said he agreed with Gov. Rick Perry’s decision.

[…]

In a statement Friday, [Rep. Wayne] Christian said, “I am pleased Governor Perry has agreed with those of us in the Texas Legislature to expedite the post-Ike recovery of Texas families and respect their private property rights.

Patterson, who had urged a veto of the bill, said he had changed his thinking and supports Perry’s decision.

“Two weeks ago, that would have disappointed me. Today, I think the governor did the right thing,” Patterson said, adding that the Christian amendment will change nothing.

“Texas beaches will remain as they have always been, open to all Texans, not just a few,” Patterson said.

Too bad, I was kind of hoping Patterson would go rogue. So what happens if Christian starts rebuilding his house? Who’s going to stop him, and how?

One veto I hadn’t noted yesterday was of HB130, which was a pre-kindergarten bill. As with pretty much all of the vetoes here, this one caught supporters by surprise.

“It’s a bad day for public education and for Texas’ youngest and neediest children,” [bill author Rep. Diane Patrick, R-Arlington] said.

House Bill 130 would have put in place new quality standards for pre-kindergarten classes, including teacher training and class size limits. The classes serve children who are homeless or in foster care, have a parent in the military, have limited English-speaking skills or whose families are low-income.

The original bill would have expanded pre-kindergarten classes from half-day to full-day for the children who now qualify for the program. But the initial $623 million price tag proved too much for the Legislature to swallow in a tight budget.

The final bill that cleared the Legislature, while keeping the quality standards, provided $25 million in grant money for districts that already have full-day pre-kindergarten but were slated to lose state funding.

UPDATE: Perry wrote in his veto statement that the money would be better used to expand the number of children served in the existing program.

“Under the funding formula for the existing grant program, $25 million would serve more than 27,000 students over the next biennium, which is 21,000 students more than the estimated 6,800 students that would have been served under the bill’s proposed program – or a 305 percent increase,” Perry wrote.

But Patrick noted that the $25 million does not provide the districts the full amount needed to offer full-day classes, so the districts will still bear significant costs.

Even with the veto, those districts will get the money but the quality standards will not take effect.

One-hundred House members had signed on to the bill, which had the strong backing of House Appropriations Chairman Jim Pitts.

“More Republicans supported the bill than not,” Patrick said. “Clearly, many Republicans as well as Democrats understand that pre-k education is an investment for which there is a great return.”

Penny-wise and pound-foolish, which is about what you’d expect from our Governor. Other views on the vetoes: from Grits, who agreed with some but as I expected disliked the rejection of HB3148; and from Eye on Williamson.

Planting vegetation against the tide

I suppose there’s more than one way to try to save your beachfront property.

In Texas, a thin green line in the sand separates private property from public beach. And that line of vegetation is drawn by Mother Nature.

Some property owners, however, are taking a more proactive approach by planting grass and shrubs along the edge of a dune on Bolivar Peninsula to keep their homes off the public beach.

These owners are trying to create an artificial vegetation line, marking where their property ends and the public beach begins.

Under the Texas Open Beaches Act, as administered by the General Land Office, houses cannot be built seaward of the vegetation line, which was scoured away by Hurricane Ike.

Between 20 and 30 property owners on the peninsula, however, have planted their own vegetation line, said Angela Sunley, leader for the General Land Office’s beach and dune team. Land office officials can easily spot man-made vegetation versus the real thing.

Silly homeowners. They should have just called Wayne Christian.

Editorialists urge veto of HB770

HB770, the originally obscure bill to grant homestead exemptions to folks who lost their house in Hurricane Ike that has generated a big stink thanks to the self-serving provision inserted on behalf of State Rep. Wayne Christian, is getting panned by editorialists around the state. Here’s a sampling.

From the Chron:

Rep. Christian should be ashamed of pushing stealth legislation that benefits himself. As Tom Brown, president of Texas Open Beach Advocates, told the Chronicle, “it’s a very special bill to benefit a state legislator and that is flat-out wrong.”

For a half century, Texas has had one of the strongest coastal access laws in the nation. Residents who buy beach-front property are well aware that storms and rising sea levels may someday reshape the landscape, putting their investment in peril.

A law allowing homeowners to rebuild at the water’s edge, even if it is restricted to Bolivar, is laying the groundwork for future destruction of property while undermining the principle of open beaches. Texans should join [Land Commissioner Jerry] Patterson in calling on the governor to veto the bill.

From the Statesman:

he amendment makes a significant statement about public beaches and private property. Significant enough to warrant full legislative review, complete with public hearing.

Patterson, never a mincer of words, told the Houston Chronicle: “My opinion is just to say, ‘Screw you, Wayne Christian,’ because the Legislature didn’t pass this, one guy passed this.”

In his e-mail [to us], Christian railed about Patterson’s “cursive language.”

We’re really not sure what “cursive language” is, but perhaps this falls under that header: Perry should veto the damn bill.

From the Galveston Daily News:

The other reason this legislation deserves a quick veto is that it is bad public policy. The Open Beaches Act says that beaches belong to the public. If your land becomes a beach in Texas, you lose it, just as you would lose part of your cow pasture if a river changed course and ran through it. If a river runs through your pasture, you would not get to set up a tollbooth in the river and you would not get to charge bass boats and kayakers to pass.

The river would not be your private property in Texas — and neither would the beach.

Waterways and beaches are public property in Texas. And people who buy beach-front property are warned repeatedly, loudly and often about that provision in the law.

The Open Beaches Act is a good law. The alternative is to live in a state where most of the beaches are owned by the wealthy.

Remember that the initial purpose of this bill was to help folks in Galveston; it’s the reason given by State Rep. Craig Eiland why he voted for it. For the Galveston Daily News to argue for its veto strikes me as pretty powerful.

From Bud Kennedy:

Retired state Rep. A.R. “Babe” Schwartz, a Galveston Democrat, led the 1959 effort to defend public beaches.

After Ike, he talked about beachfront homeowners.

“We’re talking about damn fools that have built houses on the edge of the sea for as long as man could remember and against every advice anyone has given,” Schwartz said.

And who have power in Austin.

From the Star-Telegram:

Does the Open Beaches Act encroach on property rights in cases like this? Every beachfront-property owner knows the risk. If not for the act, eventually much of the Texas coast would be lined with private beaches.

Perry should veto HB 770. While that would hurt property owners in Galveston and elsewhere who want to retain their homestead tax exemptions while they rebuild, the greater good would come from upholding the integrity of the Open Beaches Act.

From the Beaumont Enterprise:

The sanctity of public beaches cannot be compromised in Texas. Homes or businesses cannot intrude onto beaches that belong to all Texans. For those reasons, Gov. Rick Perry has little choice but to veto a bill that contains a provision that would exempt property owners on the Bolivar Peninsula from a state law that bans construction on public beaches.

The Enterprise also had one of the better stories I’ve seen on the issue. Elise Hu has a statement from Rep. Christian that tells his side of it as well.

As of Friday, Governor Perry said he was still studying the bill. I have no idea what he’s going to do, and I daresay we won’t know until the June 21 deadline for him to take action. If you have an opinion, the Governor’s fax number is 512-463-1849; those who are rallying for a veto have been urging their supporters to send faxes asking for the bill to be rejected.

Still bitching about the beach

Who 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 the first week post-sine die?

Open beaches advocacy groups sent out e-mails and posted Web messages Thursday asking voters to call Gov. Rick Perry’s office and urge him to veto a bill containing a provision exempting a legislator’s beach house from the Texas Open Beaches Act.

Phone calls poured into the governor’s office urging Perry to veto a bill with a provision that Rep. Wayne Christian, R-Center, helped write allowing him and others on the Bolivar Peninsula to rebuild on the public beach.

As of 5:30 p.m. Thursday, the tally was five for a signature and 249 for a veto, including phone calls and e-mails.

Land Commissioner Jerry Patterson scheduled a news conference for today to urge more phone calls to the governor asking for a veto of HB 770. General Land Office spokesman Jim Suydam said Patterson would wade into the Gulf waters off Galveston Island to show where houses could be built under the provision that protects Christian’s right to rebuild his beach house.

Christian denies that he did anything improper, saying the bill will allow other property owners to rebuild who otherwise would not be able to under Open Beach Act regulations administered by the General Land Office. He said the provision would keep property on the tax rolls that otherwise would be removed.

Christian, by the way, made it to the Texas Monthly Ten Worst list this session, and that was without any mention of this little debacle, presumably because the word of it came too late in the writing process. It was gilding the lily anyway, I suppose. Still no word from Governor Perry about this bill’s future, which as I said before is standard practice. We’ll know soon enough.

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.