The Virginia Supreme Court has refused the petition for appeal in two cases involving property owners on Smith Mountain Lake fighting Appalachian Power Co. for permission to build docks.
The court found March 22 that there was no reversible error in decisions in the Franklin County Circuit Court.
The cases involve lakefront property owners Richard Pressl and Bill Nissen. The Virginia Supreme Court’s writ panel, which decides if a case is worthy of appeal, heard both cases Feb. 13.
Pressl said he and Nissen are making a final appeal to ask the court to hear their cases, but said he thought that would be unlikely.
Appalachian Power operates a pumped storage hydroelectric project on Smith Mountain and Leesville lakes under a permit from the Federal Energy Regulatory Commission. The Shoreline Management Plan approved as part of that federal permit gives the utility company broad authority to regulate development along the lake, including the building of docks.
Appalachian Power filed a complaint in federal court in 2014 when Nissen began constructing a dock after obtaining a permit from Franklin County but not getting one from the utility company. Nissen’s case has gone between U.S. District Court, the 4th U.S. Circuit Court of Appeals and back to state court in Franklin County where Judge James Reynolds ruled in Appalachian’s favor. Nissen appealed that decision to the Virginia Supreme Court.
Nissen did not respond to requests for comment.
Pressl filed a civil lawsuit against Appalachian Power in June 2015 in an effort to construct a dock on his property. In the past two years, the case has moved between state and federal courts before returning to state court in May where the case was ruled in Appalachian’s favor by Reynolds. Pressl also appealed Reynolds’ decision to the Virginia Supreme Court.
Pressl said the Virginia Supreme Court’s writ panel only spent 10 minutes each on his case and Nissen’s, which limited what could be discussed.
“Almost three years into this, and no court has heard my story,” Pressl said. During the multiple court hearings, Pressl said his attorneys have not had the opportunity to present his side of the case.
Pressl purchased his lakefront property in 2012. The previous owner lost the property to foreclosure. Pressl said Appalachian Power did not grant the previous owner a dock permit after he removed several trees and vegetation along the shoreline.
Pressl said he knew about the issues Appalachian Power had with the previous owner when he purchased the property. During discussions with the power company Pressl said he was told that he would have a dock permit in 18 months if he mitigated the removal of the trees by the previous owner.
The previous owner had planted several trees to replace those that were cut down, but Appalachian Power requested that Pressl plant more. Pressl said he followed every request at first with the intention of getting a dock permit.
After years of trying to work with Appalachian Power, Pressl said, he decided to take legal action.
Pressl said he just wants the same access to the lake that thousands of other owners already have and wants to build a small, one-slip dock for his cove.
If Appalachian Power is able control his access to the shoreline, Pressl said they could deny access to anyone on the lake — even those who already have a dock. “Both Nissen and I are fighting this fight for everyone,” he said.
Despite what the final decision is with his court case, Pressl said he has had enough of Smith Mountain Lake and is planning to sell his home in the near future. One of the main reasons he is continuing the legal battle is to have a dock permit that would make the home marketable.
“They [Appalachian Power] have sucked any enjoyment of this lake right out of me,” Pressl said.
Appalachian Power spokesman John Shepelwich said he could not discuss past interactions with shoreline property owners.
Shepelwich said Appalachian Power does not object to the construction of docks at Smith Mountain or Leesville lakes, but any proposed structures must comply with shoreline management plan requirements, including obtaining a permit from the company.
“We continue to work with all permit applicants to come up with a suitable solution within the framework of the shoreline management plan,” Shepelwich said.
The recent ruling by the Virginia Supreme Court reaffirms Appalachian Power’s right and obligation to regulate dock construction under the flowage right and easement deeds attached to most shoreline properties, Shepelwich said.