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Appalachian Power Co. v. Arthur

United States District Court, W.D. Virginia, Roanoke Division

August 11, 2014


For Appalachian Power Company, Plaintiff: Matthew Patrick Warren Pritts, LEAD ATTORNEY, WOODS ROGERS PLC, ROANOKE, VA; Michael Kirby Smeltzer, LEAD ATTORNEY, WOODS ROGERS & HAZLEGROVE PLC, ROANOKE, VA.

J Stephen Arthur, Defendant, Pro se, Hardy, VA.

Donna S Arthur, Defendant, Pro se, Hardy, VA.

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Hon. Michael F. Urbanski, United States District Judge.

This matter is before the court on plaintiff's motion for summary judgment. Dkt. No. 15. The defendants, proceeding pro se, were notified of their opportunity to file a written response, Dkt. No. 17, but did not do so. Defendant J. Stephen Arthur appeared on behalf of both defendants at a hearing on the summary judgment motion, however, and he offered some argument in response to the summary judgment motion.[1] Subsequent to the hearing, the parties engaged in efforts to reach a mutually-acceptable resolution of the suit. Dkt. No. 25. The parties have now advised that those efforts have been unsuccessful and plaintiff requests a ruling on its summary judgment motion. Id. Thus, the motion is ripe for disposition.

In its complaint, Appalachian Power Company (" APCO" ) seeks a declaration that the defendants, who are property owners of shoreline property on Smith Mountain Lake, expanded certain pre-existing boat docks, constructed new structures on their property, and added fill to portions of their property that resulted in elevation changes, and that each of these actions violated APCO's rights. As described in detail below, APCO holds an easement related to defendants' property allowing it to remove buildings, structures, and improvements below an established contour. It also holds a license from the Federal Energy Regulatory Commission (" FERC" ) requiring it to maintain standards of shoreline development on certain property, including defendants' property. APCO alleges that the defendants' improvements and changes to their property, all of which were undertaken without prior authority or the required permits from APCO, violate the provisions of the license issued by FERC. APCO seeks an order requiring defendants to remove or modify the structures and to remove any fill added by them below a certain contour.

For the reasons explained below, the Court GRANTS the summary judgment motion and will grant the relief sought by APCO.



Defendants J. Stephen Arthur and Donna S. Arthur own shoreline property on Smith Mountain Lake, in Franklin County, Virginia. They have previously operated a business known as Bridgeside Marine on the property and at the time the summary judgment motion was filed, operated a business identified as Hales Ford Boat Rentals. Dkt. No. 16, Ex. A, Decl. of Frank M. Simms, ¶ 12 (" Simms Decl." ).

Plaintiff has provided detailed sworn testimony setting forth title information concerning defendants' property. See Simms Decl., ¶ ¶ 13-14. That information shows that defendants' property is subject to a Flowage Right and Easement Deed dated May 12, 1960. Id., ¶ 14; Dkt. No. 16, Ex. B (copy of Flowage Right and Easement Deed). Pursuant to that deed, APCO has the " right to overflow and/or affect so much of the premises as be overflowed and/or affected . . . as a result of the construction, existence, operation and/or maintenance of . . . the dam and power station, [and] the impounding of the

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waters . . . ." Dkt. No. 16, Ex. B at 1. That deed also grants to APCO

. . . the further right to enter upon said premises at any time and from time to time and, at [APCO]'s discretion, to cut, burn and/or remove therefrom any and all buildings, structures, improvements, trees, bushes, driftwood and other objects and debris of any and every kind or description which are or may hereafter be located on the portion of said premises below the contour the elevation of which is 800 feet.

ECF No. 16, Ex. B at 2. The deed retained to the grantors, i.e., defendants' predecessor-in-interest, " the right to possess and use said premises in any manner not inconsistent with the estate, rights, and privileges herein granted to [APCO]." Id. Significantly, the deed conveying the 2.042-acre parcel to defendants includes a reference to the fact that 0.6 acres of the conveyed property is located below the 800 feet above mean sea level (" fmsl" ) contour elevation. The 800 fmsl elevation was shown on a survey previously recorded with the Clerk of Court of Franklin County, Virginia. Simms Decl., ¶ 13.

APCO operates the Smith Mountain Hydroelectric Project (" the Project" ) under a license issued to it by the Federal Power Commission, now known as FERC.[2] Simms Decl., ¶ 3. FERC initially issued a fifty-year license to APCO in 1960, and in 2009, it issued a new thirty-year license, effective April 1, 2010. See Order Issuing New License, 129 FERC ¶ 62,201 (Dec. 15, 2009). The Smith Mountain Lake portion of the Project contains a reservoir with a normal maximum elevation of 795 fmsl, and the Project's boundary generally follows the contour elevation 800 fmsl. Id.; Simms Decl., ¶ 4.

Within that Project boundary, FERC has the authority over the Project and may approve or reject development plans for boat docks constructed on project lands and waters. See, e.g., Coalition for Fair & Equitable Regulation of Docks v. FERC, 297 F.3d 771, 778 (8th Cir. 2002), cert denied, 538 U.S. 960, 123 S.Ct. 1749, 155 L.Ed.2d 511 (2003) (discussing the authority of FERC within project boundaries). On July 5, 2005, FERC issued an order amending APCO's license to incorporate a Shoreline Management Plan (" SMP" ), which is designed to manage shoreline development within the Project boundary.[3] The SMP gives APCO authority to grant permission--without prior FERC approval--for construction along the shoreline of piers, landings, boat docks, or similar

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structures and facilities " as determined under the Commission approved Shoreline Management Plan." Simms Decl., ¶ 7; see also Va. Timberline, LLC v. Appalachian Power Co., 343 F.App'x 915, 917 (4th Cir. Aug. 31, 2009) (unpublished) (addressing a similar property dispute at the Leesville Lake portion of the Project and noting APCO's authority to regulate the construction of residential boat docks without first obtaining FERC approval). APCO's new thirty-year license also incorporated this SMP. Simms Decl., ¶ ¶ 7-10. Thus, at all times relevant to this lawsuit, the SMP has set the parameters for what defendants may do on or to their property from the 800 fmsl line and below. Under the SMP, defendants' property is classified as " high density commercial," see SMP at 9-10, and is governed by the regulations applicable to that shoreline classification. See, e.g., id. at 13-16.

As relevant here, existing structures that pre-dated the SMP and did not conform to the SMP could remain, but the portions of the structures that were nonconforming could not be expanded unless they complied with the SMP. Simms Decl., ¶ 8. In order for any pre-existing nonconforming structures under the SMP to be permitted to remain, however, property owners had to submit to APCO documentation of any such structures by August 31, 2005. See 112 FERC ¶ 61,026 (July 5, 2005) (adopting as amended, the Shoreline Management Plan submitted by APCO). Defendants here submitted documentation showing the nonconforming structures on their property as two floating docks, both located parallel to the shoreline, on either side of the smaller stationary docks bordering the boat ramp. Simms Decl., ¶ 6; Dkt. 16, Ex. C (submission by defendants).


In their summary judgment motion, APCO claims that defendants have violated APCO's property rights through two types of actions. The first involves the alleged use of fill by defendants to change the 800 fmsl contour. The second involves the placement of various structures on the property in 2006 or later ...

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