Unbelievable but True Abuses of Power
When better isn't good enough
Prior to SMP regulations Jim and Mary receive a permit from Appalachian Power to build a dock depicted with a hand drawn preliminary sketch. Jim applies and receives a building permit from the County. During construction the dock design is changed. The final as-built dock is smaller and its setback from adjacent property is greater (less intrusive) than the preliminary sketch. The dock is completed after the SMP becomes effective. The completed dock is inspected and receives a certificate of occupancy from the County building official. [IAW State Code § 15.2-2307 – this dock is vested and can continue to exist as it was built, even if regulations change in the future.]
Three years after completion Jim and Mary decide to sell and ask Appalachian Power to inspect their dock so its permit can be assigned to the new buyer. Appalachian Power’s inspection reveals that the as-built dock is different from the hand drawn sketch. Appalachian Power directs Jim and Mary to either modify their dock to match the hand sketch or apply for a new permit for the as-built configuration. In either case, Appalachian Power informs them that they must also submit a landscape plan for their shoreline and agree to plant several native plants as punishment (mitigation) for this offense. Appalachian Power inspectors ensure them there will be no problem if they cooperate.
Jim and Mary decide to make application for the as-built dock, submit a landscape plan and agree to implement that plan. Appalachian Power sits on the new application refusing to approve and instead asks for additional and costly modifications to the as-built dock. Jim and Mary continue to discuss with Appalachian Power, but never get a straight or timely answer from the SMP staff, and new issues are raised at every meeting; the discussions extend over two years; Jim and Mary lose their buyer; real estate market values fall; and Jim and Mary eventually ask Appalachian Power for a final decision. During this same period, Appalachian Power allowed the neighboring property to expand a non-conforming dock in violation of the SMP.
Appalachian Power demands they modify their as-built dock; submit a new revised and more costly landscape plan; and remove a paved pathway to the dock. Jim and Mary write to the FERC asking it to review the matter and further explain how Appalachian Power has been inconsistent, slow to respond and did not follow SMP rules. FERC responds they think Appalachian Power has not been inconsistent and furthermore they agree with Appalachian Power’s final decision.
Jim and Mary ask the FERC if this is a final decision as they want the FERC staff to “rehear” (revisit) this issue. FERC denies the rehearing and informs Jim and Mary they can request a rehearing of the denial to re-hear. Jim and Mary requested the re-re-hearing and have moved the argument to the 4th Circuit Court of Appeals. Meanwhile three years have elapsed since Appalachian Power’s inspection.
Jim and Mary’s as-built dock is superior in all regards to the preliminary hand drawn sketch: (1) smaller in area, (2) shorter in length, (3) narrower in width; and (4) better in placement. Appalachian Power’s position – yes, but it doesn’t match the original hand drawn sketch.
Only if you want to sell
Dick and Jane own a lot with 375 feet of waterfront. Dick and Jane receive a permit to build a dock from Appalachian Power. They apply for and receive a building permit from the County. Because of the shoreline length, Dick and Jane have the right to build a dock with three slips and up to 3,000 square feet. They choose to build a smaller dock with only one slip and less than 1,000 square feet in total coverage. They complete the dock and receive a CO from their County building inspector.
Dick and Jane decide they want to sell and ask Appalachian Power to inspect their dock so they can transfer the permit. Appalachian Power determines their as-built dock is slightly larger and of a slightly different configuration than what was permitted, but still far smaller than the 3,000 square feet maximum.
Appalachian Power insists they modify their dock to be more conforming with the permit (even thought their dock conforms with the SMP) and directs they plant native trees and scrubs along their entire 375 feet of waterfront, as punishment and at great personal expense. Dick and Jane protest and Appalachian Power eventually agrees that only 100’ of the waterfront needs to be planted with native trees and scrubs. Dick and Jane make the necessary modifications to get the dock permit transferred; they sell and leave the area. After the sale is complete they protest that their transfer permit was held hostage. They remain bitter and tell friends and neighbors up North not to consider SML because of Appalachian Power’s unfair and unreasonable actions.
Dick and Jane’s as-built dock met all requirements of the shoreline management plan. But rather than allow them to submit as-built plans and transfer the dock to the new owners, Appalachian Power instead held up the sale until Dick and Jane planted native vegetation along 100 feet of their shoreline as punishment.
How to get an expedited approval
Appalachian Power insists that all applications for docks must be originals and have the signature of the applicant. They will not allow submittals by fax or other electronic means, that is unless you work at the FERC and fax your application under a coversheet from the Federal Energy Regulatory Commission … in this case your application is accepted and approved within 24 hours – no questions asked.
If you can it’s always good to include a fax coversheet from the Federal Energy Regulatory Commission with your application.
Common sense is truly uncommon
George and Martha own a lot in a narrow cove that was heavily sedimented when a neighbor’s upland containment pond overflowed and carried muck into the lake in 1984. They purchased the lot, built a home, and cleared their shoreline of nuisance vegetation – scrub pines and blackberry bushes – so they could see the lake, without asking Appalachian Power’s permission. Their lot purchase included deeded ownership of the land under the lake and a permit for a boat dock. A not so well meaning agent of Appalachian Power reported that George and Martha cleared their lot without permission, causing the Appalachian Power SMP staff to revoke permission for the dock that was under-construction.
Using photographs (that have never been shown to either George or Martha) and counting trees on an adjacent undeveloped-lot, Appalachian Power decreed that before they could resume work on their dock, they must replant (and this is no joke): 176 trees of at least ½ inch caliper; 462 trees of at least 1 inch caliper; 407 trees of at least 2 inch caliper; 187 trees between 1 ¾ and 2 inch caliper – plant 1,232 tree in an 60 x 100 foot area.
To further complicate the issue, during the writing of the SMP, Appalachian Power’s consultant classified the shoreline of this lot as Conservation-Environmental, designating it as a wetland. Unfortunately for George and Martha, Appalachian Power failed to follow the Federal mandated process for delineating a wetland; for if they had, this shoreline would have failed all three “diagnostic environmental wetland characteristics” necessary for a wetland delineation. Additionally, the Army Corps of Engineers agreed there were no wetlands present and VDGIF explained there was no beneficial fishery habitat, only muck.
Eventually George and Martha negotiated and installed a landscape plan that Appalachian Power approved. In the interim, the FERC officially approved the SMP along with its flawed wetland designation for George and Martha’s shoreline. So before Appalachian Power could reinstate the dock permit, they had to submit a variance request to the FERC, because dock construction in a wetland (even though it really isn’t a wetland) required FERC’s approval, along with a guarantee that any wetlands, if present, would not be harmed.
The FERC eventually denied the variance and the right to a dock because they were unsure if a wetland was present, because George and Martha had shown disregard for SMP regulations when they cleared their lot of nuisance vegetation, because the dock location wasn’t optimal, and because the clearing probably harmed the wetlands they weren’t sure even existed – leaving George and Martha as the owners of a waterfront home, a professionally landscaped shoreline, and a partially completed dock; none of which can be sold. And yes the FERC did this all remotely, never having visited the site to validate their concerns.
The end of this story, unable to sell there waterfront property without a dock, the property was foreclosed and George and Martha have lost their life savings ... all because the FERC and Appalachian power invented a new way to designate wetlands -- that violates state and federal code.
It must be a wetland if the shoreline is classified Conservation-Environmental by Appalachian Power.
It’s a game of inches in a world of uncertainty
The dock builder finishes construction by placing a bumper along the edge of the floater to prevent damage to docking watercraft. The County inspector issues a CO for the dock and Appalachian Power is asked to perform a final inspection. The inspector measures from what he believes to be the 795 foot contour (not readily determinable) to the end of the dock and its attached floater – the length is exactly, wait for it … 100 feet and two inches. The inspector directs that the bumper along the edge of the floater be removed, before he will issue his final approval.
The couple has a safety rail installed on both sides of their 6 foot-wide walkway to the dock. Appalachian Power’s final inspection reveals that although the walkway meets the width requirement, unfortunately the handrail must be removed because it added two inches to either side of the walkway.
The dock builder carefully measures the framed dock enclosure to ensure it’s exactly 6 feet wide by 12 feet long (72 square feet). He installs the vinyl siding and trim. The Appalachian Power inspector determines that the vinyl siding added 1 inch to the length and 1 inch to the width and directs the enclosure be rebuilt to meet the 72 square feet requirement.
The owner contracts to have an awning installed on the open section of his dock to provide additional shade. The installation does not require a building permit and it doesn’t add to the area of the dock. A neighbor complains, Appalachian Power inspects and demands the awning be removed and directs the planting of vegetation along the shoreline as punishment.
The owner of a non-conforming dock approaches Appalachian Power to install vinyl siding on his enclosure. He’s told he can only paint.
And the saga continues …