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BoA backs staff on Lake Austin wall

Tuesday, September 26, 2017 by Elizabeth Pagano

At its most recent meeting, the Board of Adjustment ruled against a Lake Austin homeowner hoping to overturn a staff decision and retain their wall. Though board members expressed sympathy for a frustrating experience with the city and heard testimony that the wall fell under suspicion after complaints by an irritable neighbor, they voted unanimously to reject an appeal that would allow the homeowners to keep the submerged wall at 2005 Manana St.

“It’s hard for me to pass up any opportunity to overturn staff’s position,” said Board Member Don Leighton-Burwell. However, he explained, without any compelling evidence that the wall had been in place prior to 1984 he would have to support the city’s original decision.

At the heart of the issue is a submerged wall that was constructed without a permit when Lake Austin was lowered at the beginning of this year. Staff determined that a previous nearby wall was not constructed before 1984, so it was not grandfathered. If the wall was built before that date, as the appellant alleged, it could be maintained and repaired as a non-compliant structure.

Liz Johnston, who is with the Watershed Protection Department, further explained that the grandfathering applied to bulkheads, and her department did not believe that the older wall was one. In this context, a bulkhead is a retaining wall that manages erosion. A wall meeting that definition is present on the property as well, closer to the shoreline.

“This is a structure that just isn’t allowed in the Critical Water Quality Zone,” said Johnston.

New bulkheads can be constructed, explained Johnston, though a code-compliant bulkhead would be built at a 45-degree angle and closer to the shore than the structure in question.

Rick Rasberry, who is with Lake Austin Shoreline and Boat Dock Permits, represented the home’s owner, Gail Findlay. Rasberry is a former environmental inspector for the city. He said the process so far had been expensive and confusing, even for him. He said that the wall was a retaining wall and a crucial part of stabilizing the shoreline, abating wave action and protecting the roots of “several glamorous heritage trees” on the shore.

Rasberry told the board that he was “concerned” about the ruling and that “any Watershed Protection opinions regarding the navigational safety of the Lake Austin waterway are unaccredited and beyond the scope of the division’s purview.” He said that claims the wall was claiming public property were “groundless.”

Findlay also spoke on her own behalf. She said she was trying to maintain the beautiful shoreline that drew her to purchase the property. “I’m not here to ask for a new plan, or a new look,” she said, and told the board that she was afraid if the wall was removed, the Cypress trees along the back would be in peril.

Findlay said the wall was there, even if it wasn’t on the 2011 MLS survey that Board of Adjustment members found and then scrutinized from the dais. She knew two perpendicular walls had been there since the 1960s, and maintained the original wall that is parallel to the shore had been there before the 1984 cutoff.

Neighbor Steve Yacktman said he was surprised to see satellite photos showing no wall in the water until 2012. He said that when he moved to the neighborhood in 2005, there was a dirt ridge before a steep dropoff. “I don’t know if it just didn’t show up or if it was buried under dirt or whatever. There had to be something, I would think, holding up the dirt,” he said. He also told the board that there was broad support from the neighborhood as the complaint originated from one neighbor “who complains about everything.”

“Then you will find her swimming in your pool on the weekend,” he said. “It’s crazy. Sorry everybody’s time is being wasted by this silly matter.”

Board Member Eric Goff said he was sympathetic to the owner about “what seemed to be a frustrating experience.” However, like his fellow board members, he could not find any evidence the wall had been in place prior to 1984.

Board Member Rahm McDaniel said that a claim that the ordinance had been applied incorrectly was more interesting, but also unsubstantiated. A motion to deny the appeal passed unanimously with a vote of 11-0.

Photo courtesy of the city of Austin.

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