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Board of Adjustment rules: A private boat dock may not block public waters

Wednesday, January 16, 2019 by Jessi Devenyns

Houses along Lake Austin are coveted pieces of property whose main focal point is the water. Some homes are even lucky enough to have inlet coves creep into their properties for their near-private use.

However, when a home has a boat dock spanning the neck of the channel leading into a backyard cove, that brings public property rights into question.

“What you’ve created is a gated community on a public right-of-way,” noted Board Member Bryan King at the Jan. 14 meeting of the Board of Adjustment.

The boat dock at 3005 Westlake Drive that was causing such a ruckus is a midcentury, bare-bones structure that David Cancialosi, who was representing the applicant on the case, said is not even large enough to fit a modern-day water ski boat. Nevertheless, because the channel to enter the cove is so narrow, he said that if the boatlift is down, it does jut out into the middle of the channel, making it a “tight squeeze” to pass by.

Although not a part of the variance case that came before the board, the boat dock quickly established itself as a condition in order to allow the board to approve the request to reduce building setbacks around the cove from 75 to 25 feet.

Cancialosi explained that the homeowner was requesting the setback reduction in order to more freely use the lot to bring the sewage system out of the middle of the backyard and away from the lake as well as remodel the main house and construct a guest house on the backside of the property, looking onto Lake Austin. With the current setback requirements, that configuration would be impossible as the cove eats up roughly 37 percent of the property.

The hardship he noted is due to a new interpretation of the code that applies waterfront setbacks to man-made coves and inlets as well as main bodies of natural water. In years past, he told the Austin Monitor, man-made coves only required a 25-foot setback. He pointed out precedent cases where the code language was applied in the way he described, saying “that’s the way it was applied by staff for years.” In the last 10 years, however, he said that staffers have gotten away from that interpretation and that “we have to go in and remind them gently (of the historical interpretation).”

Although the board members did not seem to be perturbed by the request for a setback reduction, they remained focused on the position of the boat dock.

“In my opinion that (boat dock) needs to go away,” said King. “Will you take that as a condition?”

With the homeowner not present at the hearing, Cancialosi said he was hesitant to commit to such a condition, since the building and shoreline rehabilitation plans had not yet been completed in any detail; they were waiting on the approval of the setback variance to begin planning. However, he noted that “it’s 50-50 whether (the boat dock) is going to go.”

He did say that as it stands, the dock “basically stops anybody from coming into the main body.”

To make it clear that a horse-trade deal was the only way Cancialosi would receive the variance, Chair William Burkhardt said, “given that it’s public, the idea of constructing what appears to be a barrier gives me pause.”

Still, his pause was long enough that Cancialosi agreed to the board’s condition in exchange for the approval of the variance. With his acquiescence to the condition, the board unanimously approved his request for the variance. Board Member Michael Von Ohlen was absent.

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