Private and Community Water Use Facilities at Jointly Owned Community Outlots

Purpose

To provide supporting information regarding the submission and processing of applications for water-use facilities on jointly-owned outlots.

Submission of Applications

TVA Section 26a regulations (§1304.206) require that applications for facilities constructed at jointly-owned community outlots (outlot) must be submitted either with 100 percent concurrence of all co-owners of such lot, or with concurrence of the authorized representatives of a state-chartered homeowners association (HOA).  

A. Private Facilities

Requests for private, individual facilities on an outlot require concurrence by either (a) 100 percent of the owners having an interest in the outlot or (b) a state-chartered HOA with authority to manage the outlot. Before approving individual facilities at an outlot, TVA determines if there is adequate space to accommodate individual facilities for all owners with an interest in the outlot. In cases where all owners cannot be accommodated with individual facilities, community facilities may be required by TVA.

B. Community Facilities

Requests for community facilities that serve five or more lots must be submitted by the authorized representative(s) of a state-chartered HOA with authority to manage the outlot. Requests that serve less than five lots may be submitted by the HOA or by one or more owners of the outlot with documentation of 100 percent concurrence of all the co-owners of the outlot. 

C. Documentation of Concurrence

Applications submitted by an HOA must contain documentation of the HOA's authority (such as Articles of Incorporation). TVA considers an HOA to have the necessary authority to manage an outlot if all co-owners are eligible for membership in the HOA and a majority of the co-owners are members.  The HOA must be legally created under the laws of the state and have authority to manage the outlot.  Property owners needing assistance in forming a state-chartered HOA may want to seek assistance from a private attorney.

Applications submitted with 100 percent concurrence must provide written documentation that each owner having an interest in the outlot concurs with the proposed facilities. The applicant is required to provide evidence of such concurrence before TVA will process a permit application for construction. If extenuating circumstances are present, less than 100 percent concurrence may be acceptable to TVA. Extenuating circumstances may include, but are not limited to, situations where an owner is incapacitated or an owner or heirs of an owner cannot be located. The applicant must provide written justification of the extenuating circumstances; TVA will determine if the circumstances justify accepting less than 100 percent concurrence. Requests for a change in ownership of an existing facility in compliance with and proposing no modifications to the previously issued permit will be processed without requiring documentation of concurrence. If TVA is notified by one or more owners of the outlot of their objection to the request, documentation of concurrence will be required. TVA may also require proof of ownership of the outlot (i.e., private deed).

Size of Community Facilities

TVA regulations, §1304.206(b)(2), establish a number of factors for determining the size and number of slips to be approved at a community facility. In 1999, the TVA Board of Directors adopted a Shoreline Management Policy (SMP) based on the Shoreline Management Initiative Environmental Impact Statement. SMP established size and density standards, later promulgated as regulations, limiting individual dock footprints to 1000 square feet and requiring 50 feet of separation between docks. These standards provide a helpful tool when determining the size of a community facility. TVA will apply the factor(s) in a §1304.206(b)(2) at TVA’s discretion to approximate this density standard for community facilities.

Generally, the primary factors for determining the maximum size of the community facility will be the number of property owners having the right to use the outlot and the length of shoreline frontage associated with the outlot. By allowing 1000 square feet for either (1) each property owner (the property owner allocation)1 or (2) each 100 feet of shoreline frontage dedicated for community use (the shoreline frontage allocation), the amount of water space dedicated to the community facility would be similar to the amount of cumulative water space occupied by individual facilities under size and density standards established in the regulations.  Consistent with the density standards of SMP and if the size can also be supported by the other factors listed in §1304.206(b)(2), the maximum allowable footprint of a community facility is limited to the lesser of the (1) property owner allocation or (2) shoreline frontage allocation. Where the other factors contained in §1304.206(b)(2) or the results of the environmental and programmatic review will not support the maximum size, it may be necessary to reduce the size of the facility or consider a launching ramp and courtesy pier. Additional docks, piers, and boathouses exceeding the total footprint allocation will not be allowed along the shoreline frontage of the outlot(s).

TVA applies the following guidance to determine the facility size based on the shoreline frontage allocation. A recorded plat will be required to provide evidence of the outlot(s). TVA's estimate of the shoreline length is used in the calculation. If there is an objection to TVA's estimate, the applicant will be required to provide a certified survey (meeting TVA’s standards and requirements) for the agency’s consideration.

A. Shoreline Frontage Allocation for Community Facilities in Subdivisions with One Outlot

For every 100 linear feet of shoreline at June 1 flood guide elevation fronting an outlot dedicated for community use, up to 1000 square feet of community water-use facilities may be considered for approval, after completing all programmatic and environmental reviews and considering the other factors contained in §1304.206(b)(2). For example, an outlot with 350 linear feet of shoreline at June 1 flood guide elevation may be approved one or more facilities with a combined, maximum total footprint of 3500 square feet. Once the applicant has allocated the total allowable footprint for the outlot, additional community facilities (docks, boatslips, etc.) on the shoreline frontage of the outlot will not be approved. 

B. Shoreline Frontage Allocation for Community Facilities in Subdivisions with Multiple Outlots

In subdivisions containing multiple, non-contiguous outlots, TVA will determine a maximum allowable community facility footprint for the subdivision based on the sum total of shoreline length at June 1 flood guide elevation fronting all outlots. For every 100 linear feet of shoreline at June 1 flood guide elevation fronting the outlots dedicated for community use, up to 1000 square feet of community water-use facilities may be considered for approval. The applicant may allocate the total square footage for the subdivision across any combination of outlots or entirely on one outlot. Once the applicant has allocated the total allowable footprint for the subdivision among the outlots, additional community facilities (docks, boatslips, etc.) on the shoreline frontage of the outlots will not be approved. If the applicant chooses to allocate the entire square footage to one outlot, other outlots may be considered for launching ramps and other land-based community recreational facilities subject to TVA approval and the Section 26a regulations. 

For example, a subdivision with three non-contiguous outlots (outlot A, B, and C) with 600 feet, 250 feet, and 150 feet of linear shoreline at June 1 flood guide elevation, respectively, may be considered for a total subdivision community facility footprint maximum of 10,000 square feet. The developer may propose a 10,000-square-foot community facility on outlot A and launching ramps on outlot B and C for TVA’s review. After completing all programmatic and environmental reviews and considering the other factors contained in §1304.206(b)(2), TVA will determine if outlot A can support the proposed facility (10,000 square feet) or if a modification of the proposed allocation is required. In this example, if TVA approves the facility (10,000 square feet on outlot A), no additional water-use facilities (docks, piers, etc.) can be approved on outlots A, B, or C. Alternatively, the developer may propose three docks, one on each outlot, the total of which may not exceed 10,000 square feet.

All outlots used in the above determinations of the total footprint for the subdivision must be (1) deeded for community access within the recorded subdivision (shoreline frontage outside the recorded subdivision will not be included in the calculation) and (2) capable of supporting a water-use facility. For example, in subdivisions recorded after November 1, 1999, lots deeded for community access that cannot support an individual water-use facility based on the requirement of §1304.206(h) cannot be used in the total footprint calculation for the subdivision. Outlots with less than 50 feet of shoreline frontage will not be included in the calculation of the total footprint unless TVA determines they can support a facility in accordance with the requirements of §1304.206(h).

Conclusion

TVA will apply the factor(s) in §1304.206(b)(2) at TVA’s discretion to approximate SMPs density standard when determining the maximum size of a community facility on an outlot. Where factors contained in §1304.206(b)(2) or the results of the environmental and programmatic review will not support the maximum size, it may be necessary to reduce the size of the facility or consider alternative facilities, such as a launching ramp and courtesy pier.

TVA may, at its discretion, require modifications to the size of facilities due to changes in circumstances, including but not limited to, the ownership of the outlots. The following condition shall be included as an additional condition in approvals for community facilities on outlots:

"TVA may, at its discretion, require modifications to the size of facilities due to changes in circumstances, including but not limited to, the ownership of the jointly-owned outlot(s). Requests for additional docks, piers, and boathouses on the jointly-owned outlot(s) beyond the maximum allowable footprint will not be considered."

Proposals to exceed the maximum footprint require the approval of a variance in accordance with §1304.408 and §1304.2(c). Additionally, applicants that wish to exceed the size limitations may be required to apply for a commercial marina provided such an application is supported in the relevant land plan and the proposal is consistent with TVA’s Commercial Recreation Guidance.

Definitions

Community Facilities:  Multiple-slip boat docks that provide wet boat slips in front of a jointly-owned community outlot to those with interest in the outlot. These generally provide water access for non-waterfront lot owners in the subdivision, although waterfront lot owners may also be accommodated. Community facilities may also be required where physical or environmental constraints prevent the approval of individual facilities.

Homeowners Association:  An organization of homeowners in a particular subdivision or planned development, generally for the purpose of enforcing deed restrictions or managing the common elements of the development. TVA considers an association to have the necessary authority to manage a jointly-owned community outlot if all co-owners are eligible for membership in the association and a majority of the co-owners are members.

Jointly-Owned Community Outlot:  A designated lot within a waterfront subdivision that has access rights for consideration of water-use facilities and is available for use by designated property owners within the subdivision, as designated by deed, subdivision covenant, or recorded plat. Community facilities as defined in this guidance can be considered at these locations.

Private Facility:  A privately-owned facility proposed by an individual with an interest in the outlot.

Waterfront Subdivision:  A subdivision connected by property boundary to the designated jointly-owned community outlot.

1)Property owner refers to the ownership interest of each lot, even if multiple lots are owned by the same person or multiple people own a single lot. Lots must be independent and capable of being sold separately (e.g, two lots encumbered by the same house is considered as one lot in the property owner allocation).