Kelo? We don't need no steenking Kelo!

Although I am happy to say that Texas is one of the states leading the way in the race to undo the harm to property rights dealt by the U. S. Supreme Court in its recent Kelo decision, that knowledge is tempered by the fact that Texas is far from being a capitalist utopia for the property owner.

One glaring inconsistency in the state's protection of private property rights extends for the entire length of its coastline. In addition to forbidding structures past the vegetation line on the beach, Texas lays claim to all land seaward of the high tide line, which can shift dramatically due to beach erosion. This state of affairs has existed for quite some time, as witness these two strikingly similar stories which may be separated by nearly twenty-five years, but occur within the same county.

In the November 1, 1980 issue of The Intellectual Activist, Peter Schwartz reports the following.

Carl Clark owns a small beach house, which is his retirement home, in Surfside, Texas. The Texas General Land Office has temporarily ordered him to vacate his property because, it insists, all land seaward of the high tide line belongs to the government. It seems that Mr. Clark's land has been slowly eroded by the tides, to the point that his house -- built on stilts and unaffected by the water -- was officially on the wrong side of the high tide mark. "You are maintaining a structure on this State-owned land," he was told in a letter. "Further use of this structure will be regarded by the state as an unlawful infringement on its ownership rights."

Compare that story to this one, which I saw on the news Saturday. Note that the boldface I have added shows that, if anything, landowners on the shoreline have it even worse off now.

For 10 years, [Dick] Royer has watched the waves lap against his home on Brazoria County's Treasure Island.

"They not only want me to remove my homes, but also the bulkheads and all the land back to the street," Royer said.

The State Land Office, which said Royer's properties are in clear violation of the law, is suing to force Royer not only to remove his homes, but also to foot the bill for the work.

"My son's college education goes away," Royer said. "If we have to move it, our lives will change dramatically."

Officials with the state land office would not talk with Local 2 because of the pending lawsuit.

The suit claims Royer's properties violate two state laws -- the Submerged Land Law and the Open Beaches Act.

"They say if it were not for artificial means, I would be on submerged land," Royer told Local 2.

Artificial means refers to these two bulkheads holding back the Gulf. In the early '90s, Texas made it illegal to build bulkheads. But Royer's bulkheads were built nearly 30 years ago with permits from the Army Corps of Engineers.

Royer believes that makes his land grandfathered.

The Open Beaches Act says any structure that is past the vegetation line has to be removed.

According to the state coastal survey, Royer's land is not past the vegetation line. But, again, the [state] argues that if it were not for the bulkheads, the property would be in violation.

Royer said that state's not listening to his argument.

Officials with the land office said that they do not make the laws -- they just enforce them.

"It's been a drain for my family, both financially and emotionally. I have to apologize to them for not being able to make this monster go away," Royer said.

Royer told the Troubleshooters that if he loses the case, it would bankrupt him.

The state filed suit against Royer in 2004, but it wasn't the first time the two have been at odds with each other. Royer won the right to keep his land in 1999 when the Texas attorney general rules in his favor.

If the Texas legislature can tackle Kelo (first link above), to protect property owners from rapacious local governments, it should also consider some measure of relief for landowners like Royer in the short term -- and reform or repeal of the Submerged Land Law as well as the Open Beaches Act in the long term.

-- CAV

Crossposted to the Egosphere

Updates

8-1-05: Moved incorrectly-located HTML tag.