This was originally posted on Live Oaks on September 20, 2008. Comments have not been migrated.
If you have seen photos of the Texas coast after Hurricane Ike, you are aware of the the destruction caused by the storm. Thousands of homes were seriously damaged or destroyed, and many will be prohibited from rebuilding. And the owners of many of the homes that survived Ike may be prohibited from occupying their property.
The Dallas Morning News reports that the State of Texas may seize hundreds of properties, including homes that survived the storm, under the Texas Open Beaches Act (TOBA):
Hundreds of people whose beachfront homes were wrecked by Hurricane Ike may be barred from rebuilding under a little-noticed Texas law. And even those whose houses were spared could end up seeing them condemned by the state.
Now here’s the saltwater in the wound: It could be a year before the state tells these homeowners what they may or may not do.
Worse, if these homeowners do lose their beachfront property, they may get nothing in compensation from the state.
What this means is that what Hurricane Ike could not accomplish will be done with a stroke of the lawmaker’s pen. The 1959 law proclaims that the beach between the normal high tide and the normal low tide is public property and it is illegal to build private homes on public property.
The law is typically enforced after a large storm moves the shoreline, but it can also be invoked after gradual erosion does the same thing. Regardless, the owner loses his property and receives no compensation.
The author of the law expressed no sympathy for the victims of this land grab.
“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,” A.R. “Babe” Schwartz said.
According to “Babe”, since these property owners did something foolish (which is debatable) then the state has every right to seize their property. But who determines what is foolish? And why do foolish actions give the state the right to seize the property? “Babe” offered no explanation. Foolishness is not illegal, nor should it be so.
“Babe” attempts to justify his law:
Every one of them was warned of that in their earnest money contract, in the deed they received, in the title policy they bought,” he said. “And whether you like it or not, neither the Constitution of the United States nor the state of Texas nor any law permits you to have a structure on state-owned property that’s subject to the flow of the tide.
That may be true, but it does not justify condemning private property and seizing it for the state. More significantly, “Babe” uses the law to justify itself– private structures cannot be built on public land, and since the beach is public land, the law is proper. This is nothing more than a circular argument.
The proper purpose of government is the protection of individual rights, including property rights. As a part of that function, government must define how property rights are established– as it properly did in the Homesteading Act. TOBA defines property rights out of existence.
The premise behind TOBA is that the public has a right to beach access. To secure this “right” a certain portion of the beach was declared public property and accessible to all.
The web site for Texas Open Beach Advocates defends the law because it protects a “basic and traditional right to some of the best of God’s creation”. No explanation is offered as to the source of this “right”. Apparently we are supposed to just know.
The truth is, there is no such right. A right pertains to action. A right is the freedom to take action in the pursuit of one’s values. A right is not a guarantee that one’s actions will be successful, or that one will attain the object of one’s desires. The mutual rights of others prohibits us from pursuing or attaining our values through the use of force.
The TOBA crowd believes that their desires constitute a right. They believe that if they desire something– such as open beaches– then others must provide that something. And all they need is some politician eager to win votes to accomplish their goal. All they need is someone willing to use a pen to accomplish what the storm surge couldn’t.