Atlantic Coast Pipeline, L.L.C. v. Avery, 92 Va. Cir. 387

Atlantic Coast Pipeline, L.L.C. (ACP) seeks entry onto multiple Virginia landowners’ parcels to perform pre-construction surveys required for FERC approval of an interstate natural gas pipeline.
ACP sent initial requests for permission to inspect under Va. Code § 56-49.01(B); landowners either denied access or did not respond, so ACP sent certified "notice of intent to enter" under § 56-49.01(C) and petitioned the circuit court for declaratory relief authorizing entry.
Respondents filed multiple defenses: motion to stay, pleas in bar (statutory inapplicability), and demurrers challenging constitutionality, sufficiency of notice, service, and proper parties.
The court denied the stay, granted a short extension for one respondent to file pleadings, and considered the pleas and demurrers on the pleadings (no evidentiary hearing).
The court concluded § 56-49.01 applies to natural gas companies organized to operate as defined in 15 U.S.C. § 717a (not limited to entities titled "public service company"), rejected several constitutional challenges, but found the § 56-49.01(C) notices insufficient because they stated entry would occur "on or after" a date rather than setting a date of intended entry.

Issue	Plaintiff's Argument (ACP)	Defendant's Argument (Respondents)	Held
Whether § 56-49.01 applies only to Virginia public service companies	Statute authorizes any firm organized as a natural gas company (per 15 U.S.C. § 717a) to enter land	Statute’s placement under Title 56 (Public Service Company) limits it to Virginia public service companies	§ 56-49.01 applies to natural gas companies per its text; plea in bar denied
Whether the statutory pre-entry process effects an unconstitutional taking	Pre-entry surveys are minimal and facilitate a public project; not a taking	Any deprivation of right to exclude is a taking requiring constitutional scrutiny	Temporary minimally intrusive surveys are not a per se taking; demurrer overruled
Whether surveys serve a public use (so future eminent domain is permissible)	Gathering data for FERC and pipeline routing serves public purpose under federal and state law	Surveying is for a private project not yet authorized by FERC, so not public use	Precondemnation surveys serve a public use; demurrer overruled
Whether ACP complied with § 56-49.01(B) and § 56-49.01(C) notice requirements	Initial request ("on or about" date) and certified notice ("on or after" date) are adequate or give proposed date	Notices are vague; statute requires a specific intended entry date (and 15 days’ notice)	Initial request under (B) is sufficient; second notice under (C) is deficient—"on or after" insufficient; demurrer sustained as to (C)

Kroger Co. v. Appalachian Power Co., 244 Va. 560 (affirming that a plea in bar narrows litigation to a single dispositive issue)
Sullivan v. Jones, 42 Va. App. 794 (plea-in-bar standard akin to demurrer when no evidence taken)
Gray v. Virginia Sec’y of Transp., 276 Va. 93 (court considers pleadings where no evidence taken)
Eddine v. Eddine, 12 Va. App. 760 (statutory headings not part of statute; examine text)
Hubbard v. Henrico, L.P., 255 Va. 335 (statutory construction to avoid rendering language meaningless)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (permanent occupation constitutes a taking)
Prune Yard Shopping Ctr. v. Robbins, 447 U.S. 74 (the right to exclude is important but not absolute)
Klemic v. Dominion Transmission, Inc., 138 F. Supp. 3d 673 (W.D. Va.) (precondemnation surveys not a taking; statute satisfies public-use requirement)
Presley v. City of Charlottesville, 464 F.3d 480 (4th Cir.) (distinguishes Fourth Amendment claims against ongoing governmental-directed seizures)
Soldal v. Cook Cnty., 506 U.S. 56 (unreasonable seizure inquiry requires balancing governmental and private interests)