Smith Mountain Lake Residents, Appalachian Power Battle Over Property Rights

posted Dec 5, 2014, 10:33 AM by Site administrator   [ updated Dec 6, 2014, 11:54 AM ]
Posted: Dec 04, 2014 11:03 PM EST By Kody Leibowitz WSET-TV

Smith Mountain Lake, VA - Drive into Smith Mountain Lake and you can't miss a white sign pitched in the grass off the side of the road..

It reads: Rights Stolen, Repeal AEP's Shoreline Management Plan.

"It's a nightmare of their own creation," said Rob Gerner.

Gerner has lived and worked as a real estate broker in town since the 1970's. He says Appalachian Power's permit process has caused housing deals to fall through.

"Since AEP has jumped in and started making their own rules, they're telling people how big their storage units have to be, how wide the gangways have to be, how tall their docks have to be," said Gerner.

According to AEP spokesperson John Shepelwich, the rule applies to every project involving work within the lake boundary, "essentially below the 800 foot elevation."

It includes docks and every property owner must fill out a description of the project and get approval with a possible inspection along the way to make sure they're complying.

"The [Shoreline Management Plan, or SMP] lays out specific regulations associated with dock and marina construction, island protection, shoreline stabilization [erosion], flotation materials, resource protection areas, public access, vegetation cover, woody debris, protection of cultural resources and other activities on or around the lakes," Shepelwich wrote in an email to ABC 13 News. "The SMP seeks to balance progressive development and environmental issues around the lakes [Smith Mountain and Leesville]."

Appalachian Power says it is required by the Federal Energy Regulatory Commission, also known as FERC, to develop the SMP and oversee it.

AEP says most of the time issues with property owners are settled out of court. But some disputes have had legal action, including a case currently tied up in federal court against Bill Nissen, a Smith Mountain Lake resident who wanted to build a dock.

According to Bill Brush, founder of the group Cut Unnecessary Regulatory Burden, better known asC.U.R.B, AEP accused Nissen of violating the Federal Power Act.

C.U.R.B is helping support the defendant.

"He can't violate it," said Brush. "We can't violate it. [Nissen] bought a lot. He read his flowage easement. He read his deed and he understood that he had the right to build a dock without AEPs permission. He went ahead and did it and AEP filed a federal lawsuit to stop this. What's ironic about this is that there's no federal issue here.

"The federal issue is irrelevant and there isn't one."

Brush hosted a meeting Thursday night in Moneta with more than a hundred property owners in attendance. Brush says that AEP isn't abiding by their easements from 1960 that allowed residents recreational use of the lake.

"They had the right to build a dock. They had a beach. They had a boat ramp, a boat launch, we had a lot of options. Now we're being limited," said Brush. "You need to know your deed and an easement [that goes with your deed] allows you to access the lake.  AEP's only authority derives from its property rights. AEP doesn't own much of the lake, everyone has an easement to use it.

"They tried to make a federal case out of a state issue and the reason they're doing that is to avoid addressing the issue in state court of property rights."

AEP disagrees.

"As builder, operator and licensee of the two lakes that make up this project, we take our responsibilities very seriously and know that the enduring success of the lakes is dependent on a partnership with all the stakeholders who play important roles in that," stated AEP. "The interface between the property owner and the lake itself-and the ability to allow the lake operator to make sure the lake is in no way harmed by careless activities [erosion, inappropriate dredging, removal of vegetation and fish habitat, infringement of the viewshed, etc.] is the type of oversight required. Additionally, remember that as part of a major river system, these waterways contribute to lives and livelihoods for many others downstream."

Brush says that they are waiting on the federal judge to make a ruling. If the case is dismissed, Brush says they will file in state court for a ruling on property rights issues.

ABC 13 News asked AEP why not allow just allow private property owners the right to build docks at any size?

The company said it is not opposed to anyone building a dock.

"All we are seeking is construction through the permitting process that helps maintain the stability and beauty the lake has come to be known for while maintaining the rights of neighbors, stakeholders and visitors in the process."