Law should protect property owners

Published 2:58 pm Friday, April 3, 2015

A Suffolk judge ruled in favor of a property owner last week in a case that opponents of the 540-mile Atlantic Coast Pipeline had hoped might be the death knell for the controversial natural gas pipeline, which is planned to 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 and running through Southampton County and the city of Suffolk on the way.

Surveyors and engineers working for the company are still trying to nail down the likely route for the project, which means surveying thousands of properties from one end of the proposed pipeline to the other.

Most of the property owners along the way have been cooperative as crews have showed up to survey the route. Others, however, have denied the company access to their property. Last week’s case in Suffolk Circuit Court involved Davis Boulevard LLC, a developer that took the latter position in regard to its five-acre property east of Blythewood Lane and adjacent to the Great Dismal Swamp.

When Atlantic Coast Pipeline officials learned they’d been denied access to the Davis Boulevard property — as they have been on the 500-acre Upton Farms near Nansemond River High School and on other properties all along the route — they sued, claiming Virginia’s so-called “right to trespass law” gives utility companies right of entry onto private property to perform necessary surveys.

Judge Carl Eason ruled against the pipeline company on a technicality, leaving undecided an important issue of law under the state constitution: Does the commonwealth’s 2012 constitutional amendment prohibiting the use of eminent domain for private purposes protect property owners from a utility’s right to trespass?

Pipeline opponents make an interesting argument when they suggest that allowing essentially unfettered access to private property by agents of a utility represents an effective “taking” of that property. Indeed, it’s not hard to imagine a situation in which the simple fact of having surveyors working on one’s property could keep the property owner from using it in whatever way he saw fit. In that case, the utility’s agents would temporarily, at least, have taken the property owner’s full use and pleasure of the property from him.

Surely the state should be able to plan public utilities and other public projects, and surveying is a necessary part of the planning process. Surveyors must be given access to properties that could be affected by such projects.

But there’s inherent value in access to one’s property, and someone should be responsible for paying that value when it is taken from the property owner. The interlopers should be required to pay rent at the market rate for however long they impinge on the portions of the properties they are surveying.

In the end, this is a property rights issue, and property rights are — or should be — sacrosanct in Virginia. A citizen should be secure in the knowledge that his property is his own to use — or to lend — however and whenever he sees fit. He should be further comforted in the knowledge that if the state requires him to use or give up the use of that property, however temporarily, he will have recompense.

We hope Virginia’s legal system comes to a similar conclusion.