A clear matter of rights

Published 9:20 pm Monday, June 22, 2015

A Suffolk landowner is among more than 100 across the state who are being taken to court in an effort to secure a court order requiring them to allow representatives from the Atlantic Coast Pipeline access to their properties for the purpose of surveying potential routes for a proposed natural gas pipeline.

This is not the first time that Davis Boulevard LLC will have appeared in court to protect its property rights against the utility companies involved in the pipeline. A Suffolk judge hearing arguments in a similar lawsuit in March ruled the companies had failed to meet the requirements of the law in their notification of Davis Boulevard, because the notice had been sent in the name of the wrong party.

The judge’s decision gave landowners throughout Virginia a reprieve, but it did not answer the constitutional question that was at the heart of their arguments. Property owners argued that Virginia’s recent constitutional amendment buttressing the concept of property rights by disallowing the use of eminent domain to benefit a private company or to spur economic development should be construed in this case as a restriction against utility companies doing work on private property without the landowners’ consent.


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Davis Boulevard and other property owners believe they should be compensated for the loss of free use of their properties during the period of the surveys.

The surveys would include sticking flags in the ground, clearing brush, looking for endangered species, conducting borings and studying soil types. Any items of historical or cultural interest would be studied and catalogued but left in place, according to recent letters sent to the property owners.

Those activities might seem to be minor inconveniences to most of us, but the scale of the inconvenience isn’t the point. What matters is the meaning of “property rights.” Does the new amendment mean one has an unfettered right to choose who can enter his property during non-emergencies? And if the existing state law that allows such work by utilities supersedes the constitutional enjoinment, then should property owners not be compensated for the loss of use of their property during the duration of the work?

Property rights are a bedrock principle in American jurisprudence, and they are woven into the fabric of both the nation’s and the commonwealth’s constitutions. Thomas Jefferson’s arguments in favor of the concept that property rights exist outside of and predate governmental constructs laid the foundation for the assertion that this nation was established by free men and not by serfs who owed their king the fruits of their labor and lands.

A government that can force property owners to allow access to that property without recompense could also use that power to give the property to someone else that it thinks might use it better. It’s a dangerously slippery slope and just the sort of outcome Virginians sought to avoid when they overwhelmingly passed the amendment that limited government’s use of eminent domain to public, rather than private, uses.

Whether this issue is finally decided in a Suffolk court or in a court in some other part of the commonwealth remains to be seen. Either way, though, the consequences will be far broader than the Atlantic Coast Pipeline. What’s at stake is the very concept of property rights.

Our Founding Fathers were clear about the matter in the Fifth Amendment to the U.S. Constitution: “Nor shall [anyone] be deprived of life, liberty, or property without due process of law; Nor shall private property be taken for public use without just compensation.” We can only hope whatever judge finally rules on this matter will see the matter as clearly.