A narrow ruling in pipeline case

Published 9:33 pm Tuesday, March 24, 2015

A lawsuit by a natural gas pipeline group against a property owner was decided for the property owner on a technical matter Tuesday, but a larger constitutional issue looms once the minutiae are resolved.

Fifth Circuit Judge Carl Eason agreed with attorneys for the property owner, Davis Boulevard LLC, that it had not been given notice by the correct party as outlined in state law.

The 540-mile natural gas pipeline by Atlantic Coast Pipeline would run from Harrison County, W.Va., to Robeson County, N.C., with a spur coming east from the Virginia/North Carolina state line to Chesapeake, running through Suffolk on the way.

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Virginia law requires the company to give notice before it enters landowners’ property to survey. But it didn’t do so — a different entity, Dominion Transmission Inc., did.

When Davis Boulevard LLC, which owns a five-acre parcel east of Blythewood Lane abutting the Great Dismal Swamp, did not give permission for its land to be surveyed, Atlantic Coast Pipeline sued to gain entry.

Eason decided the responsibility to give notice cannot be assigned to a different entity, agreeing with attorneys for the defendant that the General Assembly, had it wanted to do so, would have outlined that the responsibility can be assigned. Attorneys for the plaintiff pointed out that the law doesn’t explicitly prohibit assignment, either, but Eason ruled against them.

Charles Lollar of Waldo and Lyle, P.C., said he was not surprised Eason ruled on the smaller matter first, leaving the constitutional issue to be decided later. It’s what many judges would do, he said.

But the bigger issue is the constitutionality of the state law that gives gas companies the right of entry onto private property to survey.

“The right to exclude others from private property is a fundamental right,” Lollar said after the hearing. “There’s got to be a check, and that’s what the constitution is all about.”

Lollar argued that the right to exclude others took on new importance in 2012, when voters passed a constitutional amendment that, Lollar says, elevates private property rights to a “fundamental” level.

Lollar argued that any entry onto the property by representatives of the gas company would constitute a “taking,” even if a temporary one, and that the owner should be compensated for it. The gas company has made no effort to work out compensation with the owner, Lollar said. It has offered to pay for any damage that might occur, but that’s not enough, the attorney argued.

But John Wilburn of McGuire Woods, an attorney for the plaintiff, said the constitutional amendment dealt only with eminent domain and “didn’t create any new property right.”

“It’s clear that property is a fundamental right,” he said. “It’s always been a fundamental right, not only in Virginia, but elsewhere.”

Lollar argued that case law upon which Wilburn was relying did not apply, because all of it happened before the 2012 constitutional amendment.

Listening with interest at the hearing was Buzz Upton of Upton Farms, who also has denied the gas company access to his family’s 500-acre farm near Nansemond River High School.

He recently was notified a route through Upton Farms is “Plan B” for the pipeline. A high-voltage power line already towers over the property, and the gas company has said it might parallel that line, Upton said.

“The high-voltage line damaged the property to some extent,” he said. “A pipeline, that’s a horse of a different color. It would kill any development potential. I’m in the crosshairs just like everybody else.”

A Dominion spokesman said the Atlantic Coast Pipeline would remedy the current situation by resending the letters from the correct entity.

“It does not impact the project schedule,” Frank Mack wrote in an email.