Check this out, the Complaint we filed a couple of weeks ago in the U.S. District Court for the Western District of Virginia, in Grano v. Rappahannock Elec. Coop., No. 3:20-cv-00065-NKM (W.D. Va. Oct. 28, 2020).
It’s not a true “takings” case because the claims for relief are limited to due process and Contract Clause and the plaintiffs are not seeking just compensation, but there’s a takings flavor, because the due process problem alleged is failure to condemn and also provide for compensation.
We’re not going to comment in depth because it’s our case, and we’d rather just let the complaint speak for itself at this point. But the short story is that recently, the Virginia General Assembly adopted a statute directing that all existing easements in which the servient estate owner granted a right to use property for electrical distribution now include the right of the dominant estate holder to use the easement for the installation and maintenance of broadband, including fiber optic. In our view, that expansion of the easement is a taking, and is required to be compensated. Absent the usual condemnation process, this is simply a property grab.
The local paper wrote a story “Constitutional challenge may stall rural broadband initiatives throughout Va.,” which quotes our colleague and co-counsel Josh Baker, who noted, “‘[t]hey’re not giving away broadband,’ Baker continued, ‘and these property owners are essentially giving up additional rights for these for-profit companies to use their land as profit. It’s not just the existence of that line, but those lines need maintenance [and] updating.'”
Check it out. More, as the case progresses.