When a Private Beach is Really Not Private
The Texas Supreme Court has decided to reconsider its opinion in Severance v. Patterson, No. 09-0378 (Tx. Nov. 5, 2010), where that court was asked to decide “whether private beachfront properties on Galveston Island’s West Beach are impressed with a right of public use under Texas law without proof of an easement” when an avulsive event causes dramatic changes to a beach. This question has been addressed by the Supreme Court of United States and also New Jersey in opinions released last summer. In a holding similar to that in New Jersey’s City of Long Branch v. Liu, 203 N.J. 464 (2009), the Texas Supreme Court concluded no.
In City of Long Branch v. Liu, the New Jersey Supreme Court considered, in the context of a condemnation action involving commercial property, whether a property owner should be compensated for the additional beach area created by a government replenishment project. Under New Jersey law, beachfront which accrues naturally over long periods of time – through a process known as “accretion” – is considered to accrue to the benefit of adjacent private property owners. However, where beachfront is added suddenly – through a different process called “avulsion” – the new land is considered to be public property. The Supreme Court, under the “public trust doctrine”, held the public was the beneficiary of the larger beach created by the government-funded program, and as a result, the adjacent private property owners could not be compensated for the taking of property they never owned.
Also last year, the United States Supreme Court, reviewing a case from the Florida Supreme Court, was asked a slightly different question than the New Jersey Supreme Court, but reached a similar conclusion. The US Court examined whether property owners on Florida’s Gulf Coast were entitled to compensation because a beach replenishment project converted their properties from oceanfront properties to ocean view properties, and held that the public was entitled to use the newly gained beach area because it belonged to the State. The Court also concluded that the Florida Supreme Court’s decision did not take property without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution. The ruling was based upon the finding that the State, as the owner of the land beneath the water line has the right to fill that land under Florida law, so long as it does not interfere with the rights of the public and adjacent property owners. Furthermore, Florida law also provides that if an “avulsion” occurs, exposing previously submerged land seaward of the waterfront property, that land belongs to the State even if it interferes with the private property owner’s previous contact with the water.
A copy of the New Jersey Supreme Court opinion in City of Long Branch v. Liu, 203 N.J. 464 (2009), can be found here.
A copy of the United States Supreme Court opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010), can be found here.
For prior blog posts about beach access and eminent domain cases, please see the following:
Supreme Court Denies Compensation to Owners in Beach Replenishment
NJ Supreme Court Rules That Replenished Beach Area is Public Property
“Bizarre” Condemnation Case Resolved — Family Can Seek Payment for Avalon Beach Property
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
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