As the beach blows
One of the proposed state constitutional amendments on the November ballot will be especially significant for coastal communities like Port Aransas.
Proposition 9 would “protect the right of the public, individually and collectively, to access and use the public beaches bordering the seaward shore of the Gulf of Mexico,” according to an analysis of proposed constitutional amendment by the staff of the Texas Legislative Council.
The area addressed in the amendment would include state beach areas extending from the mean low tide line to the vegetation line at the dunes.
The state already has the Open Beaches Act, which for 50 years “has served as one of the strongest coastal access laws in the nation,” the council’s analysis said.
The proposed amendment would strengthen the act “by clarifying its intent to protect the public’s right to free and unrestricted access to public beaches and by placing the law in the Texas Constitution, thus protecting it from future tampering,” according to the analysis.
The Open Beaches Act recognizes a rolling beachfront easement and authorizes the state to enforce the easement as natural changes occur in the location.
Supporters of the amendment argue that property owners who build or buy homes on Texas beaches do so with full knowledge of the risks to their property, because provisions in deeds and title policies state that storms may shift vegetation lines, causing property to be located on a public beach.
Opponents to the proposed amendment point out that, under the current Texas open beaches act, the state is authorized to require private property owners whose houses now stand on a public beach because of erosion and storm damage to remove the structures from that land.
Many homes along the Texas coast stood for generations on private land until Hurricane Ike’s winds and storm surge a year ago moved the line of vegetation, leaving homes on public beaches in areas of the state’s north coast.
Just because a storm moves the vegetation line shoreward, putting a structure on what technically becomes a public beach doesn’t mean lawyers from the Texas General Land Office are going to try to force the property owner to move the structure, said GLO spokesman Jim Suydam. For example, he said, the GLO has not made such a move in the wake of Ike.
“It’s all about public beach access and whether (a building) blocks public access,” Suydam said. “The question is, can a person still get to the beach, despite your structure? Is it a public safety hazard due to rebar sticking out of the sand and septic (problems)?”
Beachfront buildings in Port Aransas are not so likely to be left on a public beach due to erosion as structures on the north coast of Texas because buildings on Mustang Island mostly are built further off the beach, Suydam said.
Still, Suydam said he could not guarantee that the state would not take action against a building’s owner if erosion moves vegetation lines behind the struc- ture.
A California legal foundation three years ago filed suit against the enforcement of the Open Beaches Act on behalf of the owner of several houses on the Galveston coast.
The GLO is embroiled in a lawsuit brought by a California legal foundation that owns some buildings on a north coast beach and is challenging the right of the state to have the buildings moved landward.
Opponents of the proposed Amendment 9 say the amendment would “entrench” the Open Beaches Act in the Texas Constitution, “providing the state with excessive authority to restrict property owners’ right to enjoy their property and compounding the problem for those owners by making the law more difficult to change in the future,” according to the Texas Legislative Council analysis.
Groups including the Sierra Club and Texas Surfrider Foundation support passage of Proposition 9.
“The truth of the matter is that the issue of public access along the Texas coast has become more complicated in recent years due to population growth, economic development, hurricanes, erosion and changes in the line of vegetation that currently define what is public beach or public beach easement,” the Texas Surfrider Foundation says on its Web site.
“These factors have led to lawsuits challenging the Open Beaches Act,” the Web site says. “Constitutional Amendment No. 9 would strengthen the Open Beaches Act by making it clear for time immemorial that the public has a right to use Texas beaches.”
Proposition 9 came about as a result of House Joint Resolution 102, sponsored by Sen. Juan “Chuy” Hinojosa, D-McAllen, whose district includes Port Aransas. The House sponsor was Rep. Richard Raymond, D-Laredo.
The vote approving the measure in the House was 140-1. It was 29-2 in the Senate.
Hinojosa could not be reached for comment.
Contacted on Monday, Aug. 31, Rep. Todd Hunter, R-Corpus Christi, said he was awaiting further analysis of the proposition. “Until then, I will reserve judgment,” Hunter said.
However, Hunter added, “I always question the Texas constitutional amendment procedure, because we’ve amended the Texas Constitution so many times.” Hunter said. “We need to be careful how many times we amend the Constitution.”