RICHMOND, Va. (Legal Newsline) – On July 13, the Virginia Supreme Court issued a decision in an appeal involving a property survey notice provided by a natural gas company.
The case brought by natural gas company Atlantic Coast Pipeline LLC was for a declaratory judgment against landowners Charles and Linda Chaffins, Michael Huntley and Beverly McQuary in regards to Virginia Code § 56-49.01. The decision was ultimately made in favor of the landowners.
The code outlines the rights given to a “firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company,” the opinion states.
The code entitles such entities to examine, test, and survey land for a multitude of reasons including, but not limited to, satisfying regulatory requirements, selecting the most advantageous locations, and improve their lines. The code goes on to explain proper notification procedures for landowners such as issuing a notice via certified mail at least 15 days prior to the intent to come onto the property.
Atlantic Coast Pipeline sent a notice on March 6, 2015, to each of the previously named landowners stating they would survey the property on or after April 27, 2015. The recipients “withheld their permission,” and the company immediately filed for the declaratory judgment for the right to enter the property.
However, the landowners responded with a demurrer challenging Atlantic Coast Pipeline’s filing on the grounds that the notice did not “set forth the date of intended entry.”
A circuit court rejected the demurrers, which were filed separately for each landowner, and proceeded to determine that the notices given by Atlantic Coast Pipeline were sufficient. The circuit court ruling stated that the notice was written in such a way that it provided “a hope[ful] date of entry” that could change due to various circumstances. The landowners appealed and the case was reviewed by the Supreme Court of Virginia.
In the decision, the court agrees that the “on or after” date did not satisfy the code as it was written to give landowners a warning as to when the companies would be on their land.
The notice Atlantic Coast Pipeline provided did not adequately do so, it was ruled. The court continued to state the basis of Atlantic Coast Pipeline’s argument that it would be “absurd” to need to continuously file new notices with the 15-day waiting period if the intended date was not conducive to the survey or work needed.
However, the Supreme Court ruled to overturn the circuit court’s decision and ruled in favor of the landowners.
A second point was also reviewed by the court - a declaration of a moot case filed by Atlantic Coast Pipeline. The company argued that the issue was moot as it had filed new notices in light of the circuit court ruling giving a small range of dates in which it intended to go on to the property, referring to them as “operative documents.”
Despite this, the court explained that the company had maintained through litigation that the “on or after” language was valid.
The court determined that the dates where entry was authorized in July 2016 were technically after the original notice, which if not reviewed would give Atlantic Coast Pipeline and other companies who used such language an open ended time frame to go on to landowner property as any date after the date provided would be considered “after.”