Subtitle I. General Provisions and Transportation Entities.

Approved April 23, 2014

Chapter 1. Definitions and General Provisions.

§ 33.2-100. Definitions.

As used in this title, unless the context requires a different meaning:

“Asset management” means a systematic process of operating and maintaining the systems of state highways by combining engineering practices and analysis with sound business practices and economic theory to achieve cost-effective outcomes.

“Board” means the Commonwealth Transportation Board.

“City” has the meaning assigned to it in § 1-208 .

“Commissioner” or “Commissioner of Highways” means the individual who serves as the chief executive officer of the Department of Transportation.

“Department” means the Department of Transportation.

“Federal-aid systems” are the Interstate System and the National Highway System as set forth in 23 U.S.C. § 103.

“Highway” means the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth.

“Highway purpose,” “highway project,” or “highway construction” means highway, passenger and freight rail, or public transportation purposes.

“Interstate highway” means any highway in or component of the Interstate System.

“Interstate System” means the same as that term is defined in 23 U.S.C. § 103(c). The “Interstate System” also includes highways or highway segments in the Commonwealth that constitute a part of the Dwight D. Eisenhower National System of Interstate and Defense Highways as authorized and designated in accordance with § 7 of the Federal-Aid Highway Act of 1944 and § 108(a) of the Federal-Aid Highway Act of 1956 and are declared by resolution of the Commonwealth Transportation Board to be portions of the Interstate System.

“Locality” has the meaning assigned to it in § 1-221 .

“Maintenance” means (i) ordinary maintenance; (ii) maintenance replacement; (iii) operations that include traffic signal synchronization, incident management, and other intelligent transportation system functions; and (iv) any other categories of maintenance that may be designated by the Commissioner of Highways.

“Municipality” has the meaning assigned to it in § 1-224 .

“National Highway System” means the same as that term is defined in 23 U.S.C. § 103(b).

“Primary highway” means any highway in or component of the primary state highway system.

“Primary state highway system” consists of all highways and bridges under the jurisdiction and control of the Commonwealth Transportation Board and the Commissioner of Highways and not in the secondary state highway system.

“Public transportation” or “mass transit” means passenger transportation by rubber-tired, rail, or other surface conveyance that provides shared ride services open to the general public on a regular and continuing basis. “Public transportation” or “mass transit” does not include school buses, charter or sight-seeing services, vehicular ferry service that serves as a link in the highway network, or human service agency or other client-restricted transportation.

“Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel. A highway may include two or more roadways if divided by a physical barrier or barriers or unpaved areas.

“Secondary highway” means any highway in or component of the secondary state highway system.

“Secondary state highway system” consists of all public highways, causeways, bridges, landings, and wharves in the counties of the Commonwealth not included in the primary state highway system and that have been accepted by the Department of Transportation for supervision and maintenance.

“Secretary” means the Secretary of Transportation.

“Systems of state highways” has the meaning assigned to it in § 1-251 .

“Urban highway system” consists of those public highways, or portions thereof, not included in the systems of state highways, to which the Commonwealth Transportation Board directs payments pursuant to § 33.2-319 .

History. 2014, c. 805; 2015, c. 256.

Transition provisions.

Acts 2014, c. 805, cl. 2 provides: “That whenever any of the conditions, requirements, provisions, or contents of any section or chapter of Chapters 45 (§§ 15.2-4500 through 15.2-4534), 48.2 (§ 15.2-4829 et seq.), 70 (§ 15.2-7000 et seq.), and 71 (§ 15.2-7022 et seq.) of Title 15.2, Title 33.1 (§§ 33.1-1 through 33.1-465 ), Chapters 18 (§§ 56-529 and 56-530) and 22 (§ 56-556 et seq.) of Title 56, and §§ 58.1-815 and 58.1-815.1 of the Code of Virginia or any other title of the Code of Virginia as such titles existed prior to October 1, 2014, are transferred in the same or modified form to a new section or chapter of Title 33.2 or any other title of the Code of Virginia and whenever any such former section or chapter is given a new number in Title 33.2 or any other title of the Code of Virginia, all references to any such former section or chapter of Chapters 45 (§§ 15.2-4500 through 15.2-4534), 48.2 (§ 15.2-4829 et seq.), 70 (§ 15.2-7000 et seq.), and 71 (§ 15.2-7022 et seq.) of Title 15.2, Title 33.1 (§§ 33.1-1 through 33.1-465 ), Chapters 18 (§§ 56-529 and 56-530) and 22 (§ 56-556 et seq.) of Title 56, and §§ 58.1-815 and 58.1-815.1 of the Code of Virginia or any other title of the Code of Virginia shall be construed to apply to the new or renumbered section or chapter containing such conditions, requirements, provisions, contents, or portions thereof.”

Acts 2014, c. 805, cl. 3 provides: “That the regulations of any department or agency affected by the revision of Chapters 45 (§§ 15.2-4500 through 15.2-4534), 48.2 (§§ 15.2-4829 through 15.2-4840), 70 (§§ 15.2-7000 through 15.2-7021), and 71 (§§ 15.2-7022 through 15.2-7035) of Title 15.2, Title 33.1 (§§ 33.1-1 through 33.1-465 ), Chapters 18 (§§ 56-529 and 56-530) and 22 (§§ 56-556 through 56-575) of Title 56, and §§ 58.1-815 and 58.1-815.1 of the Code of Virginia or such other titles in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations adopted under this act.”

Acts 2014, c. 805, cl. 4 provides: “That the provisions of § 30-152 of the Code of Virginia shall apply to the revision of Title 33.1 of the Code of Virginia so as to give effect to other laws enacted by the 2014 Session of the General Assembly, notwithstanding the delay in the effective date of this act.”

Acts 2014, c. 805, cl. 5 provides: “That the repeal of Chapters 45 (§§ 15.2-4500 through 15.2-4534), 48.2 (§§ 15.2-4829 through 15.2-4840), 70 (§§ 15.2-7000 through 15.2-7021), and 71 (§§ 15.2-7022 through 15.2-7035) of Title 15.2, Title 33.1 (§§ 33.1-1 through 33.1-465 ), Chapters 18 (§§ 56-529 and 56-530) and 22 (§§ 56-556 through 56-575) of Title 56, and §§ 58.1-815 and 58.1-815.1 of the Code of Virginia and Chapter 693 of the Acts of Assembly of 1954, Chapters 462 and 714 of the Acts of Assembly of 1956, Chapter 24 of the Acts of Assembly of 1959, Extra Session, Chapters 228 and 605 of the Acts of Assembly of 1962, Chapter 348 of the Acts of Assembly of 1964, Chapter 203 of the Acts of Assembly of 1990, Chapter 548 of the Acts of Assembly of 1998, Chapters 238 and 705 of the Acts of Assembly of 2000, and Chapters 270 and 297 of the Acts of Assembly of 2005 (expired January 1, 2006), effective as of October 1, 2014, shall not affect any act or offense done or committed, or any penalty incurred, or any right established, accrued, or accruing on or before such date, or any proceeding, prosecution, suit, or action pending on that date. Except as otherwise provided in this act, neither the repeal of Chapters 45 (§§ 15.2-4500 through 15.2-4534), 48.2 (§§ 15.2-4829 through 15.2-4840), 70 (§§ 15.2-7000 through 15.2-7021), and 71 (§§ 15.2-7022 through 15.2-7035) of Title 15.2, Title 33.1 (§§ 33.1-1 through 33.1-465 ), Chapters 18 (§§ 56-529 and 56-530) and 22 (§§ 56-556 through 56-575) of Title 56, and §§ 58.1-815 and 58.1-815.1 of the Code of Virginia and Chapter 693 of the Acts of Assembly of 1954, Chapters 462 and 714 of the Acts of Assembly of 1956, Chapter 24 of the Acts of Assembly of 1959, Extra Session, Chapters 228 and 605 of the Acts of Assembly of 1962, Chapter 348 of the Acts of Assembly of 1964, Chapter 203 of the Acts of Assembly of 1990, Chapter 548 of the Acts of Assembly of 1998, Chapters 238 and 705 of the Acts of Assembly of 2000, and Chapters 270 and 297 of the Acts of Assembly of 2005 (expired January 1, 2006) nor the enactment of Title 33.2 shall apply to offenses committed prior to October 1, 2014, and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purpose of this enactment, an offense was committed prior to October 1, 2014, if any of the essential elements of the offense occurred prior thereto.”

Acts 2014, c. 805, cl. 6 provides: “That any notice given, recognizance taken, or process or writ issued before October 1, 2014, shall be valid although given, taken, or to be returned to a day after such date, in like manner as if Title 33.2 had been effective before the same was given, taken, or issued.”

Acts 2014, c. 805, cl. 7 provides: “That if any clause, sentence, paragraph, subdivision, subsection, or section of Title 33.2 shall be adjudged in any court of competent jurisdiction to be invalid, the judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, subsection, or section thereof directly involved in the controversy in which the judgment shall have been rendered, and to this end the provisions of Title 33.2 are declared severable.”

Acts 2014, c. 805, cl. 8 provides: “That references to the State Highway and Transportation Board, the State Highway Commission, or the State Highway and Transportation Commission shall be continued as references to the Commonwealth Transportation Board. Wherever either “Commission” or “Board” is used referring to the State Highway and Transportation Board, the State Highway Commission, or the State Highway and Transportation Commission, it shall mean the Commonwealth Transportation Board.”

Acts 2014, c. 805, cl. 9 provides: “That the repeal of Chapters 45 (§§ 15.2-4500 through 15.2-4534), 48.2 (§§ 15.2-4829 through 15.2-4840), 70 (§§ 15.2-7000 through 15.2-7021), and 71 (§§ 15.2-7022 through 15.2-7035) of Title 15.2, Title 33.1 (§§ 33.1-1 through 33.1-465 ), Chapters 18 (§§ 56-529 and 56-530) and 22 (§§ 56-556 through 56-575) of Title 56, and §§ 58.1-815 and 58.1-815.1 of the Code of Virginia and Chapter 693 of the Acts of Assembly of 1954, Chapters 462 and 714 of the Acts of Assembly of 1956, Chapter 24 of the Acts of Assembly of 1959, Extra Session, Chapters 228 and 605 of the Acts of Assembly of 1962, Chapter 348 of the Acts of Assembly of 1964, Chapter 203 of the Acts of Assembly of 1990, Chapter 548 of the Acts of Assembly of 1998, Chapters 238 and 705 of the Acts of Assembly of 2000, and Chapters 270 and 297 of the Acts of Assembly of 2005 (expired January 1, 2006), effective as of October 1, 2014, shall not affect the validity, enforceability, or legality of any loan agreement or other contract, or any right established or accrued under such loan agreement or contract, that existed prior to such repeal.”

Acts 2014, c. 805, cl. 10 provides: “That the repeal of Chapters 45 (§§ 15.2-4500 through 15.2-4534), 48.2 (§§ 15.2-4829 through 15.2-4840), 70 (§§ 15.2-7000 through 15.2-7021), and 71 (§§ 15.2-7022 through 15.2-7035) of Title 15.2, Title 33.1 (§§ 33.1-1 through 33.1-465 ), Chapters 18 (§§ 56-529 and 56-530) and 22 (§§ 56-556 through 56-575) of Title 56, and §§ 58.1-815 and 58.1-815.1 of the Code of Virginia and Chapter 693 of the Acts of Assembly of 1954, Chapters 462 and 714 of the Acts of Assembly of 1956, Chapter 24 of the Acts of Assembly of 1959, Extra Session, Chapters 228 and 605 of the Acts of Assembly of 1962, Chapter 348 of the Acts of Assembly of 1964, Chapter 203 of the Acts of Assembly of 1990, Chapter 548 of the Acts of Assembly of 1998, Chapters 238 and 705 of the Acts of Assembly of 2000, and Chapters 270 and 297 of the Acts of Assembly of 2005 (expired January 1, 2006), effective as of October 1, 2014, shall not affect the validity, enforceability, or legality of any bond or other debt obligation authorized, issued, or outstanding prior to such repeal.”

Where appropriate, the historical citations to former sections have been added to corresponding new sections. The case notes and other annotations appearing under new sections were decided under corresponding former sections or under prior law. For tables of corresponding former and new sections, see the tables in Volume 10.

The 2015 amendments.

The 2015 amendment by c. 256 inserted the definition of “Interstate highway.”

§ 33.2-101. Governor to waive certain state statutory mandates and regulations to expedite certain highway construction projects.

Notwithstanding any contrary provision of this Code, whenever the Governor finds in his emergency preparedness planning that certain transportation improvements are necessary to avert or respond to a natural disaster, prevent or respond to an act of terrorism, or contribute to military operations during a time of war or state of emergency as defined in § 44-146.16, the Governor may, to the maximum extent not inconsistent with federal law, waive statutory mandates and regulations of any state agency, institution, instrumentality, or political subdivision concerning the issuance of permits or related approvals in order to expedite the construction, reconstruction, alteration, or relocation of such highways, bridges, tunnels, and associated facilities or structures as he deems necessary.

History. 2002, c. 325, § 33.1-223.2:5; 2014, c. 805.

§ 33.2-102. Authority of cities and towns and certain counties in connection with federal aid.

The cities and towns of the Commonwealth and also the counties that have withdrawn from the provisions of Chapter 415 of the Acts of Assembly of 1932, as amended, may comply fully with the provisions of the present or future federal-aid road acts, and to this end they may enter into all contracts or agreements with the United States government or the appropriate agencies thereof relating to the survey, construction, improvement, and maintenance of roads, streets, and highways under their control and may do all other things necessary to carry out fully the cooperation contemplated and provided for by the present or future acts of Congress relating to the construction, improvement, and maintenance of roads, streets, and highways.

Such localities may also cooperate with the Board in connection with any project for the survey, construction, improvement, or maintenance of any road, street, or highway under their jurisdiction and control that is eligible for federal aid under any present or future federal-aid road acts and may by appropriate agreement or contract authorize the Board to act on their behalf in any dealings necessary with the United States or any agency thereof and may authorize the Board to carry out such survey, construction, improvement, or maintenance work on such projects either with or without participation by the locality. Whenever the Board is given such authority by any such locality, it may do all things contemplated and provided for by present or future federal-aid road acts and the agreements made with such locality.

History. Code 1950, § 33-131; 1970, c. 322, § 33.1-216; 2014, c. 805.

Editor’s note.

Acts 1932, c. 415, referred to in this section, established a secondary system of state highways. For present provisions, see § 33.2-300 et seq.

CASE NOTES

The effect of this section and §§ 33.1-12 (5), 33.1-49, 33.1-50 and 33.1-215 is to place in the hands of highway authorities the power, and to impose upon them the duty, to so construct the interstate highway system in Virginia as to take full advantage of available federal funds. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971) (decided under prior law).

Cost of relocation of facilities of a utility. —

This section and §§ 33.1-12 (5), 33.1-49, 33.1-50 and 33.1-215 do not create an exception to the common-law rule, recognized in Virginia, imposing upon a utility the burden of relocating facilities at its own cost when it occupies highway property under mere licenses. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971) (decided under prior law).

§ 33.2-103. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this title the Board, Commissioner of Highways, or Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board, Commissioner of Highways, or Department may be sent by regular mail.

History. 2011, c. 566, § 33.1-13.04; 2014, c. 805.

Editor’s note.

Former § 33.1-13.04, from which this section was derived, was enacted as § 33.1-13.03 and subsequently renumbered at the direction of the Virginia Code Commission.

§ 33.2-104. English units of measure.

  1. Neither the Commissioner of Highways nor the Department shall expend any funds whatsoever for the purpose of (i) converting the units of measure displayed on any highway sign from English units of measure to metric units of measure, (ii) replacing any highway sign displaying English units of measure with one bearing metric units of measure, or (iii) replacing any highway sign displaying English units of measure with one bearing both English and metric units of measure.
  2. The Board, Commissioner of Highways, and Department shall use English units of measure in the design, advertisement, construction, and preparation of plans and specifications of every highway, bridge, tunnel, or overpass construction or maintenance project. However, nothing in this section shall prevent the Board, Commissioner of Highways, or Department from continuing the use of metric units of measure in the design, advertisement, or construction of any project or the preparation of plans or specifications for a project if, prior to July 1, 1999, metric units of measure were used in the design, advertisement, plans, or specifications for the project.

History. 1994, cc. 52, 86, § 33.1-190.2; 1999, c. 315, § 33.1-190.3; 2014, c. 805.

§ 33.2-105. Evidence as to existence of a public highway.

When a way has been worked by highway officials as a public highway and is used by the public as such, proof of these facts shall be prima facie evidence that the same is a public highway. And when a way has been regularly or periodically worked by highway officials as a public highway and used by the public as such continuously for a period of 20 years, proof of these facts shall be conclusive evidence that the same is a public highway. In all such cases, the center of the general line of passage, conforming to the ancient landmarks where such exist, shall be presumed to be the center of the way and in the absence of proof to the contrary, the width shall be presumed to be 30 feet.

Nothing contained in this section shall be construed to convert into a public highway a way of which the use by the public has been or is permissive and the work thereon by the highway officials has been or is done under permission of the owner of the servient tenement.

History. Code 1950, § 33-98; 1970, c. 322, § 33.1-184; 2014, c. 805.

CASE NOTES

Editor’s note.

The cases cited below were decided under prior law.

The provisions of the statute are not limited only to roads acquired by prescription. Commonwealth ex rel. State Hwy. Comm'n v. Kinzie, 165 Va. 505 , 183 S.E. 190 , 1936 Va. LEXIS 236 (1936).

Evidence held not sufficient to make out a prima facie case under this section. Stanley v. Mullins, 187 Va. 193 , 45 S.E.2d 881, 1948 Va. LEXIS 211 (1948).

Evidence held sufficient under this section. Norfolk & W. Ry. v. Faris, 156 Va. 205 , 157 S.E. 819 , 1931 Va. LEXIS 188 (1931).

Evidence as to width of easement for road purposes. —

The evidence, aided by the presumption of this section as to width, was held to show that the extent of the easement claimed by the Commonwealth was limited to 30 feet. City of Danville v. Anderson, 189 Va. 662 , 53 S.E.2d 793, 1949 Va. LEXIS 209 (1949).

Formal acceptance required for dedication of public road. —

Although acceptance may be implied in urban areas, a formal acceptance or express assertion of dominion over the road by public authority is required before dedication of a rural road is complete. Burks Bros. v. Jones, 232 Va. 238 , 349 S.E.2d 134, 3 Va. Law Rep. 969, 1986 Va. LEXIS 251 (1986).

Finding that the purchaser did not have a legal right to access property that he owned was appropriate, in part because a public body did not accept an offer to dedicate the roadway and the purchaser failed to prove the requisite formal acceptance or express assertion of dominion over the road by public authority. Therefore, the supreme court did not need to address whether there was an offer to dedicate the roadway. Mulford v. Walnut Hill Farm Group, LLC, 282 Va. 98 , 712 S.E.2d 468, 2011 Va. LEXIS 134 (2011).

Where both Civilian Conservation Corps and Virginia Forest Service had improved and maintained a trail in the past, but these public agencies were not “road officials” within the meaning of the statute, and their work was not done to open the trail for public travel, their purpose, according to the evidence, being to improve it for their own use as a fire trail, and there was no evidence in the record of formal acceptance by public authority, both requisite elements of a valid dedication were lacking. Therefore, there were no public rights in the CCC trail by dedication. Burks Bros. v. Jones, 232 Va. 238 , 349 S.E.2d 134, 3 Va. Law Rep. 969, 1986 Va. LEXIS 251 (1986).

OPINIONS OF THE ATTORNEY GENERAL

Installation of a water line along a road acquired by the Commonwealth by prescriptive easement

may not be permitted by the Transportation Commission when such road merely has been used as a public road. See opinion of Attorney General to The Honorable R. Creigh Deeds, Member, Senate of Virginia, 07-047 (8/7/07).

§ 33.2-106. Secretary of Transportation to submit annual report on actions taken to increase transit use, etc.

The Secretary, in consultation and cooperation with the Commissioner of Highways and the Director of the Department of Rail and Public Transportation, shall annually, not later than November 1, submit to the General Assembly a report on actions taken by the Commonwealth, local governments, and regional transportation authorities to (i) increase transit use and (ii) reduce highway congestion and use of single occupant vehicles through programs and initiatives involving transportation demand management, transit use, telecommuting, carpooling, construction of commuter parking facilities, use of flexible work hours, and telecommunications technology.

History. 2010, c. 733, § 33.1-223.2:24; 2014, c. 805.

Editor’s note.

Former § 33.1-223.2:24, from which this section was derived, was enacted as § 33.1-223.2:23 by Acts 2010, c. 733, and subsequently renumbered at the direction of the Virginia Code Commission.

§ 33.2-107. Secretary of Transportation to conduct periodic examination of process.

The Secretary shall, at least once every four years, cause to be conducted an examination of the approval process for maintenance and improvements within the secondary and urban highway systems and adopt policies and procedures to reduce review redundancy and to allow approval at the district office level to the maximum extent practical.

History. 2012, c. 41, § 33.1-223.2:26; 2014, c. 805.

§ 33.2-108. Public hearings prior to undertaking projects requested by institutions of higher education.

Before any safety-related or congestion management-related highway project requested by any institution of higher education is undertaken in the Commonwealth, the institution of higher education shall conduct at least one public hearing to afford owners of property in the vicinity of the project and users of highways in the vicinity of or likely to be affected by the project an opportunity to submit comments and make their views known regarding the project.

Not less than 30 days prior to any such hearing, a notice of the time and place of the hearing shall also be published by the institution of higher education at least once in a newspaper published or having a general circulation in the locality in which the project is to be located and established.

History. 2012, c. 848, § 33.1-223.2:28; 2014, c. 805.

Editor’s note.

Former § 33.1-223.2:28, from which this section was derived, was enacted as § 33.1-223.2:26 by Acts 2012, c. 848, and subsequently renumbered at the direction of the Virginia Code Commission.

At the direction of the Virginia Code Commission, “institution of higher education” was substituted for “college, university, or other institution of higher education” twice in the first paragraph and once in the second paragraph to conform to Acts 2016, c. 588.

§ 33.2-109. Policy of the Commonwealth regarding use of highways by motorcycles; discrimination by political subdivisions prohibited.

In formulating transportation policy, promulgating regulations, allocating funds, and planning, designing, constructing, equipping, operating, and maintaining transportation facilities, no action of the Board, Commissioner of Highways, or Department shall in any way have the effect of discriminating against motorcycles, motorcycle operators, or motorcycle passengers. No regulation or action of the Board, Commissioner of Highways, or Department shall have the effect of enacting a prohibition or imposing a requirement that applies only to motorcycles or motorcyclists and the principal purpose of which is to restrict or inhibit access of motorcycles and motorcyclists to any highway, bridge, tunnel, or other transportation facility.

The provisions of this section shall also apply to transportation facilities and projects undertaken or operated by localities and other political subdivisions of the Commonwealth where public funds have been used in whole or in part to plan, design, construct, equip, operate, or maintain the facility or project.

History. 1999, cc. 332, 496, § 33.1-13.1; 2001, cc. 68, 83; 2014, c. 805.

§ 33.2-110. Gates across private roads; leaving gates open; gates across private roads leading to forestlands; penalties.

  1. Any person owning land over which another or others have a private road or right-of-way may, except when it is otherwise provided by contract, erect and maintain gates across such roads or right-of-way at all points at which fences extend to such roads on each side thereof. A court of competent jurisdiction may, upon petition, require the landowner to make such changes as may be necessary and reasonable in the use of such roads for both the landowner and the petitioner. Nothing herein shall prohibit the replacement of a gate with a cattle guard as authorized in § 55.1-2809 .
  2. If any person without permission of the owners of such gate or of the land on which the gate is located leaves the gate open, he is guilty of a Class 1 misdemeanor.
  3. The owners of forest and timberlands may substantially obstruct or close private and seldom used roads leading to or into such forest or timberlands from the public highways of the Commonwealth at points at or near which the private roads enter their property or forestlands; and, in all cases where any such private road is subject to an easement for travel for the benefit of other lands not regularly and continuously inhabited, the owner of such forest or timberlands may obstruct the road with a gate, chain, cable, or other removable obstruction, lock the obstruction, and after furnishing a key to the lock to the owner or owners of the land or lands to which the forestlands are servient, require those entitled to the easement to unlock and relock such obstruction upon making use of the road.There shall be no penalty upon the owner of such forest or timberlands for failure to erect such obstructions, but if such obstruction is erected, any person without the permission of the owner who destroys, removes, or leaves the obstruction open or unlocked, in cases where the obstruction is locked by the owner and the keys are furnished as provided in this subsection, is guilty of a misdemeanor punishable by a fine of not less than $25 nor more than $500, provided that in all cases of forest fires upon the owner’s lands or those adjacent or near thereto, the expressed permission of the owner shall be deemed given to all persons aiding in extinguishing or preventing the spreading of the fire to remove the obstructions, including the breaking of locks.

History. Code 1950, §§ 33-119, 33-120, 33-120.1; 1952, c. 695; 1954, c. 457; 1970, c. 322, §§ 33.1-202, 33.1-203, 33.1-204; 2014, c. 805; 2019, c. 542.

Editor’s note.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-2809” for “55-305.”

The 2019 amendments.

The 2019 amendment by c. 542, in subsection A, deleted “where it is alleged and proved by petitioner that the gates have been willfully and maliciously erected” following “upon petition” and added the last sentence; and made stylistic changes.

Michie’s Jurisprudence.

For related discussion, see 14B M.J. Private Ways, § 19.

CASE NOTES

  • Analysis
  • I.General Consideration.

    Editor’s note.

    The cases cited below were decided under prior law.

    Necessary to own land on each side. —

    This section contemplates that the person claiming the right to erect the gates shall own land on both sides of the road or right-of-way, and have fences which “extend to such roads on each side thereof,” and the burden is on the claimant to show that he is within the provisions of the statute. Where he fails to make such showing he has no right to erect such gates. Meadows v. Meadows, 143 Va. 98 , 129 S.E. 354 , 1925 Va. LEXIS 250 (1925).

    Necessary to have fences extend to each side of right of way. —

    Since owners of land burdened by easement did not have fences that extended to each side of the right of way, they did not establish a right under the statute to erect a gate. Ridgwell v. Brasco Bay Corp., 254 Va. 458 , 493 S.E.2d 123, 1997 Va. LEXIS 112 (1997).

    Application not prevented by narrowness of land on one side of way. —

    Two gates were erected across a private right-of-way appurtenant to complainant’s land, over the adjoining land of defendants. One gate was in a fence erected entirely on land of the defendants who owned land on both sides of the right-of-way. Complainant contended that this section did not apply because defendants only owned a strip of land 18´ wide between complainant’s line and the way, and same was of little value. It was held that the gate came squarely within the provisions of the statute. Good v. Petticrew, 165 Va. 526 , 183 S.E. 217 , 1936 Va. LEXIS 239 (1936).

    Landowner may erect gates if road is not open way. —

    Where there was no evidence to show that a road was, by agreement or by usage, an open way, and to the contrary the evidence showed that it had frequently been obstructed by bars or gates, both under the common law and under this section the landowner had the right to erect gates to permit him to use his land beneficially for grazing. Hartsock v. Powell, 199 Va. 320 , 99 S.E.2d 581, 1957 Va. LEXIS 193 (1957).

    This section gives the owner of the servient tract the right to erect and maintain a gate across the entrance to the right-of-way, irrespective of the length of time the road has been in existence or the manner in which it has been used, where there is no instrument or contract providing otherwise. Craig v. Kennedy, 202 Va. 654 , 119 S.E.2d 320, 1961 Va. LEXIS 160 (1961).

    A grantee, as owner of the fee, has a right to maintain gates across a private way which the grantor has reserved. Terry v. Tinsley, 140 Va. 240 , 124 S.E. 290 , 1924 Va. LEXIS 167 (1924).

    No right to maintain locked gate. —

    The owners of land burdened by easement did not have a right to maintain a locked gate once they could demonstrate they had complied with the terms of the statute. Nothing in this section provides such a right. Ridgwell v. Brasco Bay Corp., 254 Va. 458 , 493 S.E.2d 123, 1997 Va. LEXIS 112 (1997).

    Owner of easement permitted to replace gate with cattle guard. —

    Although the owner of the servient tract had the right, under this section, to erect and maintain a gate across the entrance to the right-of-way, the owner of the right-of-way would be permitted to replace the gate with a substantial cattle guard, or cattle guard and gate, under § 55-305, where it could be considered from the evidence that a cattle guard would serve the servient owner’s purpose of keeping his cattle in, and that the additional reason assigned by him for erecting the gate, to keep trespassers off his property, was of no moment. Craig v. Kennedy, 202 Va. 654 , 119 S.E.2d 320, 1961 Va. LEXIS 160 (1961).

    Plat showing unobstructed right of way. —

    Trial court incorrectly held that landowners were required to remove gate across right of way because plat showed an unobstructed right of way. The landowners were barred as a matter of law from placing a gate across the right of way only if they were subject to a contractual provision prohibiting the installation of a gate. The plat appended to the deed showed the route of the easement and did not indicate any restrictions that would prohibit the placement of a gate across the easement. In addition, there was no evidence that the landowners executed any agreement limiting their right to place a gate over the easement. Ridgwell v. Brasco Bay Corp., 254 Va. 458 , 493 S.E.2d 123, 1997 Va. LEXIS 112 (1997).

    II.Exceptions Otherwise Provided by Contract.

    What constitutes exception otherwise provided by contract. —

    The words “without let or hindrance,” contained in a grant of a right-of-way, constitute an exception otherwise provided by contract. Waskey v. Lewis, 224 Va. 206 , 294 S.E.2d 879, 1982 Va. LEXIS 283 (1982).

    “Without let or hindrance” construed. —

    The expression “without let or hindrance,” while including the concept of a permanent obstruction, is also broad enough to include something far less. Waskey v. Lewis, 224 Va. 206 , 294 S.E.2d 879, 1982 Va. LEXIS 283 (1982).

    The term “without let or hindrance,” contained in the language granting a right-of-way appurtenant to lands conveyed, precludes the erection of manually-operated gates. Waskey v. Lewis, 224 Va. 206 , 294 S.E.2d 879, 1982 Va. LEXIS 283 (1982).

    CIRCUIT COURT OPINIONS

    Erection of gates allowed. —

    Easement holders were not entitled to summary judgment on property owners’ alleged interference with the easement holders’ use of an easement by the erection of gates because the original deed that was involved specifically granted the owners’ predecessors in title the right to erect two gates across the easement, an agreement that a later deed ineffectually attempted to revoke. Sweeney v. Greatorex, 102 Va. Cir. 506, 2018 Va. Cir. LEXIS 2150 (Frederick County Dec. 7, 2018), vacated, sub. op., 102 Va. Cir. 506, 2019 Va. Cir. LEXIS 264 (Frederick County Mar. 11, 2019).

    § 33.2-111. Funding and undertaking of pedestrian or bicycle projects apart from highway projects not prohibited.

    Nothing contained in this chapter and no regulation promulgated by the Commissioner of Highways or the Board shall be construed to prohibit or limit the ability of the Board or the Department to fund and undertake pedestrian or bicycle projects except in conjunction with highway projects.

    History. 2002, c. 678, § 33.1-223.2:6; 2014, c. 805.

    Editor’s note.

    Former § 33.1-223.2:6, from which this section was derived, was enacted as § 33.1-223.2:5 by Acts 2002, c. 678, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-112. Sidewalks and walkways for pedestrian traffic.

    The Board may construct such sidewalks or walkways on the bridges and along the highways under its jurisdiction as it deems necessary for the protection of pedestrian traffic.

    All provisions of law with respect to the acquisition of lands and interests therein and the construction, reconstruction, alteration, improvement, and maintenance of highways in the primary and secondary state highway systems, including the exercise of the power of eminent domain by the Board and the Commissioner of Highways, shall be applicable to such sidewalks and walkways.

    History. Code 1950, § 33-121; 1970, c. 322, § 33.1-205; 2014, c. 805.

    § 33.2-113. Contributions by cities or towns towards highway building, bridges, etc.

    Any city or town, acting by and through its governing body, may contribute funds or other aid within the control of the city or town toward the building or improvement of permanent public highways leading to the city or town, or of bridges, or to the purchase of bridges, or the establishment, maintenance, or operation of ferries, when in the judgment of such governing body such action will tend to promote the material interest of such city or town. But no contribution shall be made toward the building or improvement of any highway or bridge, or the purchase of bridges, or any ferry, at any point more than 40 miles beyond the corporate limits of the city or town, as measured along the route of such highway.

    History. Code 1950, § 33-129; 1970, c. 322, § 33.1-214; 2014, c. 805.

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Ferries, §§ 3, 5, 6.

    § 33.2-114. Virginia Aviation Board and Virginia Port Authority powers.

    The powers of the Virginia Aviation Board set out in Chapter 1 (§ 5.1-1 et seq.) of Title 5.1 and the Virginia Port Authority set out in Chapter 10 (§ 62.1-128 et seq.) of Title 62.1 are in no way diminished by the provisions of this title.

    History. Code 1950, § 33-12; 1956, c. 92; 1964, c. 265; 1970, c. 322, § 33.1-12(11); 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c. 13; 1988, cc. 844, 903; 1989, c. 727; 1992, c. 167; 1995, c. 94; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805.

    § 33.2-115. Department to establish smart transportation pilot zone.

    The Secretary of Transportation and the Department of Transportation shall establish a smart transportation pilot zone to test state-of-the-art smart road technology utilizing the existing state highway network, or the Smart Road managed by the Virginia Tech Transportation Institute and owned and maintained by the Department of Transportation in Montgomery County, or both.

    History. 2014, c. 478.

    Editor’s note.

    Acts 2014, c. 478 enacted § 33.1-223.2:31, from which this section is derived. Pursuant to § 30-152, Acts 2014, c. 478 has been given effect as this section.

    § 33.2-116. Statewide transportation technology programs to incorporate new technologies and innovations in transportation.

    The Secretary of Transportation and the Department of Transportation shall revise and update statewide transportation technology programs by evaluating and incorporating, where appropriate, new smart road technologies and other innovations in transportation.

    History. 2014, c. 477.

    Editor’s note.

    Acts 2014, c. 477 enacted § 33.1-223.2:30, from which this section is derived. Pursuant to § 30-152, Acts 2014, c. 477 has been given effect as this section.

    § 33.2-117. Statutes declaring streams and rivers to be highways continued.

    All statutes heretofore enacted declaring certain streams and rivers to be highways and providing for removing obstructions therefrom and from other streams shall continue in force.

    History. Code 1950, § 33-97; 1970, c. 322; 2014, c. 805, § 33.1-183; 2015, c. 256.

    Editor’s note.

    Acts 2015, c. 256, enacted this section to replace former § 33.1-183, which was repealed in error by the recodification act, Acts 2014, c. 805, effective October 1, 2014. Acts 2015, c. 256, cl. 10 made the section effective retroactively to October 1, 2014.

    Acts 2015, c. 256, cl. 10 provides: “That the provisions of § 33.2-117 of the Code of Virginia, as created by this act, shall be effective retroactively to October 1, 2014.”

    § 33.2-118. Mobile food vending in commuter lots in Planning District 8.

    1. In Planning District 8, any mobile food vending unit with a mobile food establishment permit from the Department of Health may, after securing the appropriate approval from the locality in which the commuter parking lot is located, apply for an additional permit with the Department of Transportation and pay a fee in order to operate such mobile food vending unit in a commuter parking lot owned by the Department of Transportation and vend to commuters. A mobile food vending unit shall not be deemed to be parking for the purposes of § 46.2-1219.2 while it is vending pursuant to a permit issued under this section.
    2. The Department shall develop guidelines, consistent with the Board’s regulations and policies, to permit mobile food vending as provided in subsection A. Such guidelines shall (i) provide for the issuance of permits by the Department to mobile food vendors authorizing such vendors to operate in commuter parking lots owned by the Department, (ii) establish criteria that the Department will use in evaluating each permit application to ensure that neither the function and purpose of the affected commuter parking lot nor the motor vehicle traffic flow and motorist and pedestrian safety will be adversely affected by the operation of the mobile food vendors, (iii) establish fees for mobile food vending, and (iv) address any other issues related to permit issuance as deemed necessary by the Department.
    3. The Department shall publish on its website a permit application form for mobile food vending units to apply for such permit to vend to commuters in commuter lots in Planning District 8 and the established fee for such permit and vending.

    History. 2016, c. 765.

    Cross references.

    As to license requirements for mobile food units, see § 58.1-3715.1 .

    Editor’s note.

    Acts 2016, c. 765, cl. 2 provides: “That any regulatory changes deemed necessary by the Department of Transportation as a result of implementing the provisions of this act shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).”

    § 33.2-119. Limitation on tolling.

    1. For purposes of this section, “auxiliary lane” means the portion of the roadway adjoining the traveled way as a shoulder or for speed change, turning, weaving, or the maneuvering of entering and leaving traffic.
    2. Notwithstanding any other provision of this title, no toll may be imposed or collected on un-tolled lanes or components of a highway, bridge, or tunnel without approval from the General Assembly. However, such prohibition shall not apply to (i) reconstruction with additional lanes of a highway, bridge, or tunnel provided that the number of un-tolled non-high-occupancy vehicle lanes, excluding auxiliary lanes, after the reconstruction is not less than the number of un-tolled, non-high-occupancy vehicle lanes, excluding auxiliary lanes, prior to such reconstruction; (ii) new construction that is opened to the public as a tolled facility; (iii) new construction that is opened to the public as high-occupancy vehicle lanes; (iv) existing high-occupancy vehicle lanes; or (v) an existing lane on a segment of a highway whose length does not exceed 10 miles and is between an interchange and an interchange or an interchange and a bridge, provided that the number of un-tolled non-high-occupancy vehicle lanes on such segment is equal to the number of un-tolled non-high-occupancy vehicle lanes on the portion of the highway preceding such segment.
    3. Notwithstanding the provisions of subsection B, prior approval of the General Assembly shall be required prior to the imposition and collection of any toll for use of all or any portion of (i) a non-limited access highway except for a bridge, tunnel, or the approaches to a bridge or tunnel; (ii) Interstate 81; or (iii) any primary highway that is wholly located in Planning District 8 and that was previously classified as a secondary highway and is between 30 and 35 miles in length.

    History. 2016, c. 780; 2017, c. 836; 2018, Sp. Sess. I, c. 1; 2019, c. 548.

    The number of this section was assigned by the Virginia Code Commission, the number in the 2016 act having been 33.2-118 .

    Editor’s note.

    Acts 2016, c. 780, cl. 4, as amended by Acts 2017, c. 836 and Acts 2018, Sp. Sess. I, c. 1, provides: “That the provisions of this act adding § 33.2-118 [now 33.2-119 ] to the Code of Virginia, as created by this act, and § 33.2-309 of the Code of Virginia, as amended by this act, shall become effective upon the return of the Commonwealth’s spot in the Interstate System Reconstruction and Rehabilitation Pilot Program.” On May 24, 2016, Commissioner of the Virginia Department of Transportation returned the Commonwealth’s spot in the Interstate System Reconstruction and Rehabilitation Pilot Program to the federal government. This section became effective May 24, 2016.

    The 2019 amendments.

    The 2019 amendment by c. 548 added clause (iii) to subsection C and made related changes.

    § 33.2-120. Efforts to increase CAFE standards.

    1. As used in this section, unless the context requires a different meaning, “CAFE standards” means the corporate average fuel economy standards for passenger cars and light trucks manufactured for sale in the United States that have been implemented pursuant to the federal Energy Policy and Conservation Act of 1975 (P.L. 94-163), as amended.
    2. It is the policy of the Commonwealth to support federal action that provides for:
      1. An increase in the CAFE standards from the current standard by promoting performance-based tax credits for advanced technology, fuel-efficient vehicles to facilitate the introduction and purchase of such vehicles; and
      2. Market incentives and education programs to build demand for high-efficiency, cleaner vehicles, including tax incentives for highly efficient vehicles.

    History. 2006, c. 939, §§ 67-800, 67-801; 2021, Sp. Sess. I, c. 387.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 387, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2021.”

    Chapter 2. Transportation Entities.

    Article 1. Commonwealth Transportation Board; Membership and Organization.

    § 33.2-200. Commonwealth Transportation Board; membership; terms; vacancies.

    The Board shall have a total membership of 17 members that shall consist of 14 nonlegislative citizen members and three ex officio members as follows: the Secretary of Transportation, the Commissioner of Highways, and the Director of the Department of Rail and Public Transportation. The nonlegislative citizen members shall be appointed by the Governor as provided in § 33.2-201 , subject to confirmation by the General Assembly. Appointments of nonlegislative citizen members shall be for terms of four years commencing on July 1, upon the expiration of the terms of the existing members, respectively. Vacancies shall be filled by appointment by the Governor for the unexpired term and shall be effective until 30 days after the next meeting of the ensuing General Assembly and, if confirmed, thereafter for the remainder of the term. No nonlegislative citizen member shall be eligible to serve more than two consecutive four-year terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining that member’s eligibility for reappointment. Ex officio members of the Board shall serve terms coincident with their terms of office.

    The Secretary shall serve as chairman of the Board and shall have voting privileges only in the event of a tie. The senior nonlegislative citizen member shall serve as vice-chairman of the Board and shall preside during the absence of the chairman. In the event that more than one nonlegislative citizen member of the Board may be considered the senior nonlegislative citizen member, the Board shall elect the vice-chairman from such senior nonlegislative citizen members. The Director of the Department of Rail and Public Transportation and the Commissioner of Highways shall not have voting privileges.

    History. Code 1950, c. 87, § 33-1 ; 1956; 1970, c. 322, § 33.1-1; 1974, c. 462; 1984, c. 748; 1985, c. 448; 1986, Sp. Sess., c. 13; 1990, cc. 1, 317; 1995, cc. 195, 223; 1999, cc. 636, 673; 2011, cc. 36, 152; 2013, cc. 762, 794; 2014, c. 805; 2015, cc. 374, 684.

    Editor’s note.

    Acts 2018, c. 743, cl. 1 provides: Ҥ 1. That the Commonwealth Transportation Board (the Board) be directed to study financing options for Interstate 81 corridor improvements.

    “In conducting its study, the Board shall evaluate the feasibility of using toll financing to improve Interstate 81 throughout the Commonwealth. Such evaluation shall not consider options that toll all users of Interstate 81, and shall not consider tolls on commuters using Interstate 81, but may consider high-occupancy toll lanes established pursuant to § 33.2-502 of the Code of Virginia and tolls on heavy commercial vehicles. The Board, with the support of the Office of Intermodal Planning and Investment, shall develop and adopt an Interstate 81 Corridor Improvement Plan (Plan). Such Plan shall include the examination of the entire length of Interstate 81 and the methods of financing such improvements, and such Plan may include tolls imposed or collected on heavy commercial vehicles but shall not include tolls on commuters using Interstate 81.

    “At a minimum, in the development of such Plan, the Board shall:

    “1. Designate specific segments of the Interstate 81 corridor for improvement;

    “2. Identify a targeted set of improvements for each segment that may be financed or funded in such segment and evaluated using the statewide prioritization process pursuant to § 33.2-214.1 of the Code of Virginia;

    “3. Ensure that in the overall plan of expenditure and distribution of any toll revenues or other financing means evaluated, each segment’s total long-term benefit shall be approximately equal to the proportion of the total of the toll revenues collected that are attributable to such segment divided by the total of such toll revenues collected;

    “4. Study truck travel patterns along the Interstate 81 corridor and analyze policies that minimize the impact on local truck traffic;

    “5. Identify incident management strategies corridor-wide;

    “6. Ensure that any revenues collected on Interstate 81 be used only for the benefit of that corridor;

    “7. Identify actions and policies that will be implemented to minimize the diversion of truck traffic from the Interstate 81 corridor, including the prohibition of through trucks on parallel routes;

    “8. Determine potential solutions to address truck parking needs along the Interstate 81 corridor; and

    “9. Assess the potential economic impacts on Virginia agriculture, manufacturing, and logistics sector companies utilizing the I-81 corridor from tolling only heavy commercial trucks.

    “Technical assistance shall be provided to the Commonwealth Transportation Board by the Department of Transportation, the Department of Motor Vehicles, and the Department of State Police. All agencies of the Commonwealth shall provide assistance to the Commonwealth Transportation Board for this study, upon request.

    “The Commonwealth Transportation Board shall complete its meetings by November 30, 2018, and shall submit to the Governor and the General Assembly an executive summary and a report of its findings and recommendations for publication as a House or Senate document. The executive summary and report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports no later than the first day of the 2019 Regular Session of the General Assembly and shall be posted on the General Assembly’s website.”

    Acts 2018, c. 743, cl. 2 provides: “That nothing in this act shall be construed to conflict with the exclusive authority of the General Assembly to approve tolling on components of highways, bridges, or tunnels.”

    The 2015 amendments.

    The 2015 amendment by c. 374, effective July 1, 2016, deleted “and shall serve at the pleasure of the Governor” at the end of the second sentence.

    The 2015 amendment by c. 684, effective July 1, 2016, in the first sentence of the first paragraph, substituted “17 members” for “18 members” and “three ex officio members” for “four ex officio members”; and deleted “and the Executive Director of the Virginia Port Authority” following “Rail and Public Transportation”; in the second sentence of the first paragraph, deleted “and shall serve at the pleasure of the Governor” at the end; in the second paragraph, substituted “senior nonlegislative citizen member” for “Commissioner of Highways” and “and shall preside” for “and shall have voting privileges only in the event of a tie when he is presiding” in the second sentence, added the third sentence, and substituted “Commissioner of Highways” for “Executive Director of the Virginia Port Authority” in the last sentence.

    CASE NOTES

    The State Highway Commission (now Commonwealth Transportation Board) is an administrative department of the State, charged with powers and duties defined by this article. Southern Ry. v. Commonwealth, 159 Va. 779 , 167 S.E. 578 , 1933 Va. LEXIS 281, rev'd, 290 U.S. 190, 54 S. Ct. 148, 78 L. Ed. 260, 1933 U.S. LEXIS 455 (1933).

    OPINIONS OF THE ATTORNEY GENERAL

    Naming of highways. —

    The Virginia Commonwealth Transportation Board may change the name of a primary highway that was originally named by the General Assembly, thus portions of a highway that are located within a specific locality may be renamed, provided that the locality adopts a resolution requesting such renaming. See opinion of Attorney General to The Honorable Mark H. Levine, Member, House of Delegates, 19-010, 2019 Va. AG LEXIS 7 (3/21/19).

    § 33.2-201. Appointment requirements; statewide interest.

    Of the members appointed to the Board, one member shall be a resident of the territory now included in the Bristol highway construction district, one in the Salem highway construction district, one in the Lynchburg highway construction district, one in the Staunton highway construction district, one in the Culpeper highway construction district, one in the Fredericksburg highway construction district, one in the Richmond highway construction district, one in the Hampton Roads highway construction district, and one in the Northern Virginia highway construction district. The remaining five members shall be appointed from the Commonwealth at large, provided that at least two reside in urbanized areas with populations greater than 200,000 and are designated as urban at-large members and at least two reside outside urbanized areas with populations greater than 200,000 and are designated as rural at-large members. The at-large members shall be appointed to represent rural and urban transportation needs and to be mindful of the concerns of seaports and seaport users, airports and airport users, railways and railway users, and mass transit and mass transit users. Each appointed member of the Board shall be primarily mindful of the best interest of the Commonwealth at large instead of the interests of the highway construction district from which chosen or of the transportation interest represented.

    No member of a governing body of a locality shall be eligible, during the term of office for which he was elected or appointed, to serve as an appointed member of the Board.

    History. Code 1950, § 33-2; 1964, c. 265; 1970, c. 322, § 33.1-2; 1974, c. 462; 1982, c. 487; 1984, c. 748; 1986, Sp. Sess., c. 13; 2000, c. 49; 2014, c. 805; 2018, c. 828.

    The 2018 amendments.

    The 2018 amendment by c. 828 substituted “urbanized areas with populations greater than 200,000” for “metropolitan statistical areas” twice; and added the second paragraph.

    § 33.2-202. Meetings.

    The Board shall meet at least once every three months and at such other times, on the call of the chairman or of a majority of the members, as may be deemed necessary to transact such business as may properly be brought before it. Six members shall constitute a quorum of the Board for all purposes. For a transportation project valued in excess of $25 million that is located wholly within a single highway construction district, the Board shall hold at least one hearing in the highway construction district where such project being considered is located to discuss such project prior to a meeting at which a vote to program funds pursuant to § 33.2-214 for such project will be taken.

    It shall be the duty of the Board to keep accurate minutes of all meetings of the Board, in which shall be set forth all acts and proceedings of the Board in carrying out the provisions of this title.

    History. Code 1950, § 33-5; 1970, c. 322, § 33.1-6; 1974, c. 462; 2014, c. 805; 2016, c. 367.

    The 2016 amendments.

    The 2016 amendment by c. 367 added the last sentence in the first paragraph.

    § 33.2-203. Salaries and expenses.

    All salaries and expenses of the Board shall be paid from the state treasury out of the annual appropriation for the Board. Warrants for such salaries and expenses shall be issued by the Comptroller on certificates of the Commissioner of Highways to the parties entitled thereto and shall be paid by the State Treasurer out of the funds appropriated for that purpose.

    History. Code 1950, § 33-10; 1970, c. 322, § 33.1-10; 1974, c. 462; 2014, c. 805.

    § 33.2-204. Offices.

    The main office of the Board, the Department of Transportation, and the Department of Rail and Public Transportation shall be located in the City of Richmond. In the discretion of the Commissioner of Highways, other offices of the Department of Transportation may be established in the various highway construction districts of the Commonwealth as may be necessary to carry out the provisions of this title.

    History. Code 1950, § 33-6; 1970, c. 322, § 33.1-7; 2013, cc. 585, 646; 2014, c. 805.

    § 33.2-205. Oaths and bonds of members.

    Each member of the Board shall, before entering upon the discharge of his duties, take an oath that he will faithfully and honestly execute the duties of the office during his term and each shall be bonded in accordance with § 2.2-1840 , conditioned upon the faithful discharge of his duties.

    History. Code 1950, § 33-9; 1970, c. 322, § 33.1-9; 1974, c. 462; 2014, c. 805; 2021, Sp. Sess. I, c. 152.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 152, effective July 1, 2021, rewrote the section, which formerly read: “Each member of the Board shall, before entering upon the discharge of his duties, take an oath that he will faithfully and honestly execute the duties of the office during his term, and each shall give a bond in such penalty as may be fixed by the Governor conditioned upon the faithful discharge of the duties of his office and the full and proper accounting for all public funds and property coming into his possession or under his control. The premium on such bonds shall be paid out of the state treasury out of the annual appropriation for the Board.”

    § 33.2-206. How testimony of members of Commonwealth Transportation Board and Commissioner of Highways taken in civil proceedings.

    No member of the Board or the Commissioner of Highways shall be required to leave his office for the purpose of testifying in any suit, action, or other civil proceeding involving any of his official duties, but the deposition of any member of the Board or the Commissioner of Highways may be taken at the main office of the Board in Richmond, after reasonable notice in writing has been given to the adverse party.

    Any deposition taken pursuant to this section may be read in the pending suit, action, or other civil proceeding. However, on motion to the court, filed at least 10 days before the commencement of the trial, the judge may, for good cause shown, require any member of the Board or the Commissioner of Highways to attend and testify ore tenus.

    History. Code 1950, § 33-3.1; 1966, c. 369; 1970, c. 322, § 33.1-4; 1974, c. 462; 1995, cc. 195, 223; 2014, c. 805.

    § 33.2-207. Bookkeeping system.

    The chairman of the Board shall, with the aid and advice of the Auditor of Public Accounts, cause to be maintained a complete and modern system of bookkeeping for the Department, and the books to be kept by the Department shall show in detail all receipts and disbursements of the Department, the source of such receipts, and the purpose, amount, and recipient of all disbursements.

    History. Code 1950, § 33-14; 1970, c. 322, § 33.1-14; 1974, c. 462; 2014, c. 805.

    Article 2. Commonwealth Transportation Board; Powers and Duties.

    § 33.2-208. Location of routes.

    1. The Board shall have the power and duty to locate and establish the routes to be followed by the highways comprising the systems of state highways between the points designated in the establishment of such systems, except that such routes shall not include highways or streets located within any local system of highways or streets, within the urban highway system, or those local highways in any county that has resumed full responsibility for all of the secondary state highway system within such county’s boundaries pursuant to § 33.2-342 . Such routes to be located and established shall include corridors of statewide significance pursuant to § 33.2-353 .
    2. The Board shall not locate and establish any route pursuant to this section until the Department has (i) published in a newspaper that is published or has a general circulation in the locality in which the route is to be located and established a notice of its willingness to hold a public hearing on the matter, (ii) notified the governing body of the locality in which the route is to be located of its willingness to hold a public hearing on the matter, and (iii) held a public hearing if one has been requested.If a public hearing is requested, written notice of the time and place of the hearing shall be given not less than 30 days prior to the hearing to the governing body of the locality in which the route is to be located and established. Not less than 30 days prior to the hearing, a notice of the time and place of the hearing shall also be published by the Department at least once in a newspaper published or having a general circulation in the locality in which the route is to be located and established.All public hearings on the location or possible location of a route shall be open forums that afford citizens opportunities to obtain route location information and other pertinent information on a proposed project and to submit their hearing comments in writing or to present them directly to a verbatim recorder. In addition, upon the written request of a member of the governing body of the locality in which the route is proposed to be located, or upon the written request of 25 citizens, these public hearings shall afford citizens an opportunity to present their comments to representatives of the Department directly, one speaker at a time, in a public forum following a traditional hearing format. A written request for a traditional hearing must be received within 14 days following the first published notice of the hearing or willingness to hold a hearing.Following the public hearing, if one is held as provided in this section, the Department shall notify the governing body of the affected locality of the Board’s decision regarding the location and establishment of the route.

    History. Code 1950, §§ 33-12, 33-17; 1956, c. 92; 1964, c. 265; 1970, c. 322, §§ 33.1-12, 33.1-18; 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c. 13; 1988, cc. 844, 903; 1989, c. 727; 1992, cc. 44, 167; 1995, c. 94; 2000, c. 489; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805.

    Cross references.

    As to comprehensive plan prepared and adopted by local planning commission, see § 15.2-2223 .

    CASE NOTES

    The clause “no change shall be made” does not prohibit the construction, relocation and inclusion in the highway system of a new road. That restriction against relocation of an existing highway refers only to those state highways running to and from points named in Chapter 10, Acts 1918, that had been located and established prior to the effective date of Chapter 31, Acts 1919. And even if established then, the correct construction of the clause would not preclude the location, establishment, construction and inclusion of another section of highway in the system which may shorten the distance between existing points, where no intention or purpose is disclosed to abandon any part of the old route. McMinn v. Anderson, 189 Va. 289 , 52 S.E.2d 67, 1949 Va. LEXIS 169 (1949) (decided under prior law).

    What acts make road part of state system. —

    Any number of acts by the Commissioner which indicate an intention to make a road permanently a part of the State Highway System are insufficient to make it a part of such system where he denies having made it a part thereof, if such acts were incident to a temporary maintenance. In case of doubt, the interpretation of the Commissioner is entitled to great weight. State Hwy. Comm'n v. Williams, 138 Va. 217 , 138 Va. 218 , 121 S.E. 55 , 1924 Va. LEXIS 24 (1924) (decided under prior law).

    § 33.2-209. Construction and maintenance contracts and activities related to passenger and freight rail and public transportation.

    1. The Board shall have the power and duty to let all contracts to be administered by the Department of Transportation or the Department of Rail and Public Transportation for the construction, maintenance, and improvement of the highways comprising systems of state highways and for all activities related to passenger and freight rail and public transportation in excess of $5 million. The Commissioner of Highways has authority to let all Department of Transportation-administered contracts for highway construction, maintenance, and improvements up to $5 million in value. The Director of the Department of Rail and Public Transportation has the authority to let contracts for passenger and freight rail and public transportation improvements up to $5 million in value. The Commissioner of Highways is authorized to enter into agreements with localities, authorities, and transportation districts to administer projects and to allow those localities, authorities, and transportation districts to let contracts with no limit on contract value and without prior concurrence of the Commissioner of Highways or the Board for highway construction, maintenance, and improvements within their jurisdictions, in accordance with those provisions of this Code providing those localities, authorities, and transportation districts the ability to let such contracts. The Director of the Department of Rail and Public Transportation is authorized to enter into agreements with localities, authorities, and transportation districts to administer projects and to allow those localities, authorities, and transportation districts to let contracts with no limit on contract value and without prior concurrence of the Director of the Department of Rail and Public Transportation or the Board for passenger and freight rail and public transportation activities within their jurisdictions, in accordance with those provisions of this Code providing those localities, authorities, and transportation districts the ability to let such contracts. The Commissioner of Highways and the Director of the Department of Rail and Public Transportation shall report on their respective transportation contracting activities at least quarterly to the Board.
    2. The Board may award contracts for the construction of transportation projects on a design-build basis. These contracts may be awarded after a written determination is made by the Commissioner of Highways or the Director of the Department of Rail and Public Transportation, pursuant to objective criteria previously adopted by the Board regarding the use of design-build, that delivery of the projects must be expedited and that it is not in the public interest to comply with the design and construction contracting procedures normally followed. Such objective criteria shall include requirements for prequalification of contractors and competitive bidding processes. These contracts shall be of such size and scope to encourage maximum competition and participation by agency prequalified and otherwise qualified contractors. Such determination shall be retained for public inspection in the official records of the Department of Transportation or the Department of Rail and Public Transportation, as the case may be, and shall include a description of the nature and scope of the project and the reasons for the Commissioner’s or the Director’s determination that awarding a design-build contract will best serve the public interest. A Request for Proposal for transportation projects to be delivered on a design-build basis pursuant to this section may allow for the submission and consideration of alternative technical concepts in accordance with the procedures set forth in such Request for Proposal. The provisions of this section shall supersede contrary provisions of subsection D of § 2.2-4303 .For the purposes of this subsection, “alternative technical concepts” means proposed changes to agency-supplied base design configurations, project scope, design, or construction criteria that provide a solution that is equal to or better than the requirements in the Request for Proposal.
    3. The Board may award contracts for the provision of equipment, materials, and supplies to be used in construction of transportation projects on a fixed-price basis. Any such contract may provide that the price to be paid for the provision of equipment, materials, and supplies to be furnished in connection with the projects shall not be increased but shall remain fixed until completion of the projects specified in the contracts. Material components of any such contract for annual and multiyear programs, including maintenance, may be fixed at the outset of the projects and until completion based on best achievable prices.

    History. Code 1950, § 33-12; 1956, c. 92; 1964, c. 265; 1970, c. 322, § 33.1-12; 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c. 13; 1988, cc. 844, 903; 1989, c. 727; 1992, c. 167; 1995, c. 94; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805; 2016, cc. 139, 369; 2017, cc. 699, 704.

    The 2016 amendments.

    The 2016 amendments by cc. 139 and 369 are identical, and in subsection B, inserted “A Request for Proposal for transportation projects to be delivered on a design-build basis pursuant to this section may allow for the submission and consideration of alternative technical concepts in accordance with the procedures set forth in such Request for Proposal” in the first paragraph and added the second paragraph.

    The 2017 amendments.

    The 2017 amendments by cc. 699 and 704 are identical, and deleted “and § 2.2-4306 ” at the end of the first paragraph in subsection B.

    § 33.2-210. Traffic regulations; penalty.

    1. The Board shall have the power and duty to make regulations that are not in conflict with the laws of the Commonwealth for the protection of and covering traffic on and for the use of systems of state highways and shall have the authority to add to, amend, or repeal such regulations.
    2. The regulations, together with any additions or amendments thereto, prescribed by the Board under the authority of this section shall have the force and effect of law, and any person, firm, or corporation violating any such regulation or any addition or amendment thereto is guilty of a misdemeanor punishable by a fine of not less than $5 nor more than $100 for each offense. Such person shall be civilly liable to the Commonwealth for the actual damage sustained by the Commonwealth by reason of his wrongful act. Such damages may be recovered at the suit of the Board and, when collected, paid into the state treasury to the credit of the Department. Any regulations promulgated by the Board shall be developed in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) except when specifically exempted by law.

    History. Code 1950, §§ 33-12, 33-18; 1956, c. 92; 1964, c. 265; 1970, c. 322, §§ 33.1-12, 33.1-19; 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c 13; 1988, cc. 844, 903; 1989, c. 727; 1992, c. 167; 1995, c. 94; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2010, cc. 17, 51; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805.

    Cross references.

    As to penalty for hauling certain cargoes through tunnels or on highways, see § 46.2-815 .

    Editor’s note.

    Acts 2015, c. 466, cl. 1 provides: “§ 1. That the Commonwealth Transportation Board shall amend its regulations so as to permit mobile food vending on state highway rights-of-way except limited access highways. Such regulations may provide for the issuance of permits by the Department of Transportation to mobile food vendors authorizing such vendors to operate on state highway rights-of-way in certain business districts, urban development areas, or areas zoned for commercial use and limited to specific locations within those business districts, urban development areas, or areas zoned for commercial use where the Department of Transportation has determined that motor vehicle traffic flow and motorist and pedestrian safety on the state highway rights-of-way would not be adversely affected by the operation of the mobile food vendors. The Department of Transportation shall seek input from affected localities and other stakeholders during the process of amending the regulations authorized by this section. Such regulations shall allow localities to regulate the operation of such mobile food vending businesses located on the state highway rights-of-way within the locality in a manner consistent with local ordinances and the Commonwealth Transportation Board’s regulations and policies.”

    CASE NOTES

    Aim in adopting traffic devices manual. —

    Nothing inherent in the authority invoked by the Board when it adopted the Manual on Uniform Traffic Control Devices (MUTCD) as a standard suggests that railroads would be relieved of their responsibility to discover especially hazardous crossings and to erect lights and other appropriate protective devices at such crossings. Rather, the adoption of MUTCD seems to have been aimed principally at setting standards to make highway safety measures implemented by local agencies consistent with those implemented by state agencies. Chandler v. National R.R. Passenger Corp., 882 F. Supp. 533, 1995 U.S. Dist. LEXIS 4344 (E.D. Va. 1995) (decided under prior law).

    OPINIONS OF THE ATTORNEY GENERAL

    Violation of statute. —

    The placing of political signs within the public highway rights-of-way violates the statute. See opinion of Attorney General to The Honorable James L. Camblos III, Commonwealth’s Attorney for Albemarle County, 00-001, 2000 Va. AG LEXIS 51 (8/31/00) (decided under prior law).

    § 33.2-211. Copies of regulations as evidence.

    Copies of regulations of the Board and of additions or amendments thereto printed under the authority of the Board shall be admissible in all of the courts of the Commonwealth without further proof and given the force and effect prescribed hereby, and the fact that such printed copies bear the name of the Board shall be prima facie evidence that they are duly adopted and promulgated under the provisions of this title and that they are true copies of the regulations, or of any additions and amendments thereto, adopted pursuant to the provisions of subsection A of § 33.2-210 .

    History. Code 1950, § 33-21; 1970, c. 322, § 33.1-22; 1974, c. 462; 2014, c. 805.

    § 33.2-212. Sections not applicable to certain engines and tractors.

    The provisions of §§ 33.2-210 and 33.2-211 shall not apply to traction engines and tractors weighing not less than five tons when drawing threshing machines, hay balers, or other farm machinery for local farm use.

    History. Code 1950, § 33-22; 1970, c. 322, § 33.1-23; 2011, cc. 104, 164; 2014, c. 805.

    § 33.2-213. Naming highways, bridges, interchanges, and other transportation facilities.

    The Board shall have the power and duty to give suitable names to state highways, bridges, interchanges, and other transportation facilities and change the names of any highways, bridges, interchanges, or other transportation facilities forming a part of the systems of state highways. The names of private entities, as defined in § 33.2-1800 , located within the Commonwealth shall not be used for such purposes unless such private entity pays the Department an annual naming rights fee as determined by the Board. The Department shall place and maintain appropriate signs indicating the names of highways, bridges, interchanges, and other transportation facilities named by the Board or by the General Assembly. The costs of producing, placing, and maintaining these signs shall be paid by the localities in which they are located or by the private entity whose name is attached to the highway, bridge, interchange, or other transportation facility. However, for a highway, bridge, interchange, or other transportation facility named after a state official killed during the performance of his official duties, the costs of producing, placing, and maintaining these signs shall be paid from Commonwealth Transportation Funds. For purposes of this section, “state official” includes law-enforcement officers employed by the Department of State Police and state highway transportation workers. No name shall be given to any state highway, bridge, interchange, or other transportation facility by the Board unless and until the Board receives (i) for a naming after a state official, a letter or resolution from the head of the state agency by which the state official was employed requesting such naming or (ii) for a naming other than after a state official, a resolution from the governing body of the locality within which a portion of the facility to be named is located requesting such naming, except in such cases where a private entity has requested the naming. No highway, bridge, interchange, or other transportation facility previously named by the Board or the General Assembly shall be eligible for renaming by a private entity, unless such naming incorporates the previous name. The Board shall develop and approve guidelines governing the naming of highways, bridges, interchanges, and other transportation facilities by private entities and the applicable fees for such naming rights. Such fees shall be deposited in the Highway Maintenance and Operating Fund established pursuant to § 33.2-1530 .

    No name shall be eligible for the naming rights under this section if it in any way reasonably connotes anything that (i) is profane, obscene, or vulgar; (ii) is sexually explicit or graphic; (iii) is excretory related; (iv) is descriptive of intimate body parts or genitals; (v) is descriptive of illegal activities or substances; (vi) condones or encourages violence; or (vii) is socially, racially, or ethnically offensive or disparaging.

    History. Code 1950, § 33-12; 1956, c. 92; 1964, c. 265; 1970, c. 322, § 33.1-12; 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c. 13; 1988, cc. 844, 903; 1989, c. 727; 1992, c. 167; 1995, c. 94; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805; 2019, c. 802.

    Cross references.

    As to the naming of U.S. Route 29, see § 15.2-719.1 .

    The 2019 amendments.

    The 2019 amendment by c. 802, in the first paragraph, inserted the fifth and sixth sentences, and in the seventh sentence, inserted clauses (i) and (ii), and deleted “a resolution of that governing body” following “is located.”

    OPINIONS OF THE ATTORNEY GENERAL

    Naming of highways. —

    The Virginia Commonwealth Transportation Board may change the name of a primary highway that was originally named by the General Assembly, thus portions of a highway that are located within a specific locality may be renamed, provided that the locality adopts a resolution requesting such renaming. See opinion of Attorney General to The Honorable Mark H. Levine, Member, House of Delegates, 19-010, 2019 Va. AG LEXIS 7 (3/21/19).

    § 33.2-214. Transportation; Six-Year Improvement Program.

    1. The Board shall have the power and duty to monitor and, where necessary, approve actions taken by the Department of Rail and Public Transportation pursuant to Article 5 (§ 33.2-281 et seq.) in order to ensure the efficient and economical development of public transportation, the enhancement of rail transportation, and the coordination of such rail and public transportation plans with highway programs.
    2. The Board shall have the power and duty to coordinate the planning for financing of transportation needs, including needs for highways, railways, seaports, airports, and public transportation and set aside funds as provided in § 33.2-1524.1 . To allocate funds for these needs pursuant to § 33.2-358 and Chapter 15 (§ 33.2-1500 et seq.), the Board shall adopt a Six-Year Improvement Program of anticipated projects and programs by July 1 of each year. This program shall be based on the most recent official Commonwealth Transportation Fund revenue forecast and shall be consistent with a debt management policy adopted by the Board in consultation with the Debt Capacity Advisory Committee and the Department of the Treasury.
    3. The Board shall have the power and duty to enter into contracts with local districts, commissions, agencies, or other entities created for transportation purposes.
    4. The Board shall have the power and duty to promote increasing private investment in the Commonwealth’s transportation infrastructure, including acquisition of causeways, bridges, tunnels, highways, and other transportation facilities.
    5. The Board shall only include a project or program wholly or partially funded with funds from the State of Good Repair Program pursuant to § 33.2-369 , the High Priority Projects Program pursuant to § 33.2-370 , the Highway Construction District Grant Programs pursuant to § 33.2-371 , or the Interstate Operations and Enhancement Program pursuant to § 33.2-372 , or capital projects funded through the Virginia Highway Safety Improvement Program pursuant to § 33.2-373 in the Six-Year Improvement Program if the allocation of funds from those programs and other funding committed to such project or program within the six-year horizon of the Six-Year Improvement Program is sufficient to complete the project or program. The provisions of this subsection shall not apply to any project (i) the design and construction of which cannot be completed within six years, (ii) the estimated costs of which exceed $2 billion, and (iii) that requires the Board to exercise its authority to waive the funding cap pursuant to subsection B of § 33.2-369 .
    6. The Board shall have the power and duty to integrate land use with transportation planning and programming, consistent with the efficient and economical use of public funds. If the Board determines that a local transportation plan described in § 15.2-2223 or any amendment as described in § 15.2-2229 or a metropolitan regional long-range transportation plan or regional Transportation Improvement Program as described in § 33.2-3201 is not consistent with the Board’s Statewide Transportation Plan developed pursuant to § 33.2-353 , the Six-Year Improvement Program adopted pursuant to subsection B, and the location of routes to be followed by roads comprising systems of state highways pursuant to subsection A of § 33.2-208 , the Board shall notify the locality of such inconsistency and request that the applicable plan or program be amended accordingly. If, after a reasonable time, the Board determines that there is a refusal to amend the plan or program, then the Board may reallocate funds that were allocated to the nonconforming project as permitted by state or federal law. However, the Board shall not reallocate any funds allocated pursuant to § 33.2-319 or 33.2-366 , based on a determination of inconsistency with the Board’s Statewide Transportation Plan or the Six-Year Improvement Program nor shall the Board reallocate any funds, allocated pursuant to subsection C or D of § 33.2-358 , from any projects on highways controlled by any county that has withdrawn, or elects to withdraw, from the secondary system of state highways based on a determination of inconsistency with the Board’s Statewide Transportation Plan or the Six-Year Improvement Program. If a locality or metropolitan planning organization requests the termination of a project, and the Department does not agree to the termination, or if a locality or metropolitan planning organization does not advance a project to the next phase of construction when requested by the Board and the Department has expended state or federal funds, the locality or the localities within the metropolitan planning organization may be required to reimburse the Department for all funds expended on the project. If, after design approval by the Chief Engineer of the Department, a locality or metropolitan planning organization requests alterations to a project that, in the aggregate, exceeds 10 percent of the total project costs, the locality or the localities within the metropolitan planning organization may be required to reimburse the Department for the additional project costs above the original estimates for making such alterations.

    History. Code 1950, § 33-12; 1956, c. 92; 1964, c. 265; 1970, c. 322, § 33.1-12; 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c. 13; 1988, cc. 844, 903; 1989, c. 727; 1992, c. 167; 1995, c. 94; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805; 2015, c. 684; 2018, c. 828; 2019, cc. 83, 349; 2020, cc. 1230, 1275.

    Cross references.

    As to goals of the Office of Intermodal Planning and Investment of the Secretary of Transportation, generally, see § 2.2-229 .

    Editor’s note.

    Acts 2015, c. 684, cl. 8 provides: “That the provisions of this act amending §§ 33.2-214 and 33.2-214.1 of the Code of Virginia shall not affect the expenditure of funds that are allocated by July 1, 2016.”

    Acts 2020, cc. 1230 and 1275, cl. 11 provides: “That notwithstanding the provisions of this act, the Commonwealth Transportation Board (i) shall take actions deemed necessary in fiscal years 2021, 2022 and 2023 to ensure appropriate coverage ratios for any outstanding debt backed by the Transportation Trust Fund and (ii) shall ensure funds for modal programs and the highway maintenance and operating fund are at least equal to the amounts provided for the six-year financial plan for the Commonwealth Transportation Fund as in effect on January 1, 2020.”

    Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 430 O 1, effective for the biennium ending June 30, 2022, provides: “1. Notwithstanding § 33.2-214 , the Six-Year Improvement Program adopted June 19, 2019, and as amended shall remain in effect through June 30, 2021, or until a new Six-Year Improvement Program is adopted that is based on the official Commonwealth Transportation Fund revenue forecast reflecting the impacts of COVID-19 pandemic.”

    The 2015 amendments.

    The 2015 amendment by c. 684 in the fourth sentence of subsection E, deleted “33.2-348, 33.2-362” after “33.2-319” in the fourth sentence, and substituted “subsection C or D of” for “subdivision C 3 of.”

    The 2018 amendments.

    The 2018 amendment by c. 828 added subsection E and redesignated former subsection E as F.

    The 2019 amendments.

    The 2019 amendments by cc. 83 and 349 are identical, and added the second sentence to subsection E.

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and substituted “§ 33.2-1524 .1” for “§ 33.2-1524 ,” deleted “§§” preceding “§ 33.2-358 ,” inserted “Chapter 15 (§ 33.2-1500 et seq.)” for “58.1-638,” inserted “Commonwealth” preceding “Transportation,” and deleted “Trust” preceding “Fund” in subsection B; deleted “or” following “§ 33.2-370 ” and inserted “or the Interstate Operations and Enhancement Program pursuant to § 33.2-372 , or capital projects funded through the Virginia Highway Safety Improvement Program pursuant to § 33.2-373 ” following “§ 33.2-371 ” in subsection E.

    § 33.2-214.1. Statewide prioritization process for project selection.

    1. The General Assembly declares it to be in the public interest that a prioritization process for projects funded by the Commonwealth Transportation Board be developed and implemented to improve the efficiency and effectiveness of the state’s transportation system, transportation safety, transportation accessibility for people and freight, environmental quality, and economic development in the Commonwealth.
    2. Subject to the limitations in subsection C, the Commonwealth Transportation Board shall develop, in accordance with federal transportation requirements, and in cooperation with metropolitan planning organizations wholly within the Commonwealth and with the Northern Virginia Transportation Authority, a statewide prioritization process for the use of funds allocated pursuant to §§ 33.2-358 , 33.2-370 , and 33.2-371 or apportioned pursuant to 23 U.S.C. § 104. Such prioritization process shall be used for the development of the Six-Year Improvement Program pursuant to § 33.2-214 and shall consider, at a minimum, highway, transit, rail, roadway, technology operational improvements, and transportation demand management strategies.
      1. The prioritization process shall be based on an objective and quantifiable analysis that considers, at a minimum, the following factors relative to the cost of the project or strategy: congestion mitigation, economic development, accessibility, safety, and environmental quality.
      2. Prior to the analysis in subdivision 1, candidate projects and strategies shall be screened by the Commonwealth Transportation Board to determine whether they are consistent with the assessment of capacity needs for all for corridors of statewide significance, regional networks, and improvements to promote urban development areas established pursuant to § 15.2-2223.1 , undertaken in the Statewide Transportation Plan in accordance with § 33.2-353 .
      3. The Commonwealth Transportation Board shall weight the factors used in subdivision 1 for each of the state’s highway construction districts. The Commonwealth Transportation Board may assign different weights to the factors, within each highway construction district, based on the unique needs and qualities of each highway construction district.
      4. The Commonwealth Transportation Board shall solicit input from localities, metropolitan planning organizations, transit authorities, transportation authorities, and other stakeholders in its development of the prioritization process pursuant to this section. Further, the Board shall explicitly consider input provided by an applicable metropolitan planning organization or the Northern Virginia Transportation Authority when developing the weighting of factors pursuant to subdivision 3 for a metropolitan planning area with a population over 200,000 individuals.
    3. The prioritization process developed under subsection B shall not apply to the following: projects or activities undertaken pursuant to § 33.2-352 ; projects funded by the Congestion Mitigation Air Quality funds apportioned to the state pursuant to 23 U.S.C. § 104(b)(4) and state matching funds; projects funded by the Highway Safety Improvement Program funds apportioned to the state pursuant to 23 U.S.C. § 104(b)(3) and state matching funds; projects funded by the Transportation Alternatives funds set-aside pursuant to 23 U.S.C. § 213 and state matching funds; projects funded by the revenue-sharing program pursuant to § 33.2-357 ; and projects funded by federal programs established by the federal government after June 30, 2014, with specific rules that restrict the types of projects that may be funded, excluding restrictions on the location of projects with regard to highway functional classification. The Commonwealth Transportation Board may, at its discretion, develop a prioritization process for any of the funds covered by this subsection, subject to planning and funding requirements of federal law.

    History. 2014, c. 726; 2015, c. 684; 2016, c. 129; 2017, cc. 166, 273.

    Cross references.

    As to goals of the Office of Intermodal Planning and Investment of the Secretary of Transportation, generally, see § 2.2-229 .

    As to comprehensive plan prepared and adopted by local planning commission, see § 15.2-2223 .

    Editor’s note.

    Acts 2014, c. 726 enacted § 33.1-23.5:5 from which this section is derived. Pursuant to § 30-152, Acts 2014, c. 726 has been given as this section.

    Acts 2014, c. 726, cl. 2 provides: “That the Commonwealth Transportation Board shall select projects for funding pursuant to the provisions of this act beginning July 1, 2016.”

    Acts 2014, c. 726, cl. 3 provides: “That the prioritization process developed pursuant to § 33.1-23.5:5 [now this section] of the Code of Virginia, as created by this act, shall not apply to funds allocated to the Northern Virginia Transportation Authority Fund established pursuant to § 15.2-4838.01 of the Code of Virginia, the Hampton Roads Transportation Fund established pursuant to § 33.1-23.5:4 [now § 33.2-2600 ] of the Code of Virginia, or federal funds subject to 23 U.S.C. 133(d)(1)(A)(i).”

    Acts 2014, c. 726, cl. 5 provides: “That the Commonwealth Transportation Board in implementing § 33.1-23.5:5 [now this section] as created by this act shall comply with the allocation of funds pursuant to § 33.1-23.1 [now § 33.2-358 ].”

    Acts 2014, c. 726, cl. 6 provides: “That, for Northern Virginia and Hampton Roads highway construction districts, the Commonwealth Transportation Board, pursuant to subdivision B 3 of § 33.1-23.5:5 [now this section] as created by this act, shall ensure that congestion mitigation, consistent with § 33.1-13.03:1 [now § 33.2-257 ] of the Code of Virginia, is weighted highest among the factors in the prioritization process. For metropolitan planning areas with a population over 200,000, the prioritization process shall also include a factor based on the quantifiable and achievable goals pursuant to subsection B of § 33.1-23.03 of the Code of Virginia.”

    Acts 2014, c. 726, cl. 7 provides: “That notwithstanding § 33.1-23.5:5 [now this section] as created by this act, the Commonwealth Transportation Board shall ensure that no project shall be undertaken primarily for economic development purposes.”

    Acts 2015, c. 684, cl. 8 provides: “That the provisions of this act amending §§ 33.2-214 and 33.2-214.1 of the Code of Virginia shall not affect the expenditure of funds that are allocated by July 1, 2016.”

    Acts 2018, Sp. Sess. I, c. 2, as amended by Acts 2019, c. 854, Item 449 D, effective for the biennium ending June 30, 2020, provides: “The prioritization process developed under § 33.2-214.1 , Code of Virginia, shall not apply to use of funds provided in this Item from the federal apportionments in the State Planning and Research Program.”

    The 2015 amendments.

    The 2015 amendment by c. 684 in the first sentence of subsection B, substituted “§§ 33.2-358 , 33.2-370 and 33.2-371 ” for “§ 33.2-358 ”; in subsection C, deleted “projects funded pursuant to subdivisions C 2 and 3 of § 33.2-358” preceding “projects funded by the revenue-sharing program,” and deleted “However, the Board shall defer to individual local governments for projects funded pursuant to subdivisions C 2 and 3 of § 33.2-358” at the end.

    The 2016 amendments.

    The 2016 amendment by c. 129 substituted “and the criteria used to determine the value of each factor, no later than 30 days prior to a vote on such projects or strategies” for “in a timely fashion” in subsection D.

    The 2017 amendments.

    The 2017 amendments by cc. 166 and 273 are identical, and deleted subsection D, which read: “The Commonwealth Transportation Board shall make public, in an accessible format, the results of the screening and analysis of candidate projects and strategies under subsection B, including the weighting of factors and the criteria used to determine the value of each factor, no later than 30 days prior to a vote on such projects or strategies.”

    § 33.2-214.2. Transparency in the development of the Six-Year Improvement Program, statewide prioritization process, and state of good repair program.

    1. The Board shall develop the Six-Year Improvement Program pursuant to § 33.2-214 in a transparent manner that provides to the public, elected officials, and other stakeholders the opportunity to engage and comment in a meaningful manner prior to the adoption of such program.
    2. No later than 150 days prior to a vote to include projects or strategies evaluated pursuant to § 33.2-214.1 in the Six-Year Improvement Program, the Office of Intermodal Planning and Investment shall make public, in an accessible format, (i) a recommended list of projects and strategies for inclusion in the Six-Year Improvement Program based on the results of such evaluation; (ii) the results of the screening of candidate projects and strategies, including whether such projects are located on a primary evacuation route; (iii) whether a project has been designed to be or the project sponsor has committed that the design will be resilient; and (iv) the results of the evaluation of candidate projects and strategies, including the weighting of factors and the criteria used to determine the value of each factor.
    3. The Department shall make public a recommended list of projects eligible for funds under the state of good repair program pursuant to § 33.2-369 from the listing of prioritized pavement and bridge needs published in the Commissioner’s annual report pursuant to § 33.2-232 at least 150 days prior to the adoption of a Six-Year Improvement Program that includes new projects with funding from such program.
    4. The Board may modify the recommended list of projects in subsection B or C through formal action.

    History. 2017, cc. 166, 273; 2020, c. 971; 2021, Sp. Sess. I, cc. 51, 52.

    Editor’s note.

    Acts 2021, Sp. Sess. I, cc. 51 and 52, cl. 2 provides: “That the Commissioner of Highways shall ensure resiliency is incorporated into the design standards for new construction projects.”

    The 2020 amendments.

    The 2020 amendment by c. 971, added “including whether such projects are located on a primary evacuation route” in subsection B to clause (ii) and made stylistic changes.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendments by Sp. Sess. I, cc. 51 and 52, effective July 1, 2021, are identical, and inserted clause (iii) and redesignated former clause (iii) as clause (iv) in subsection B.

    § 33.2-214.3. Transparency in project selection in Planning District 8.

    At least annually, the Northern Virginia Transportation Authority, the Northern Virginia Transportation Commission, the Virginia Railway Express, and the Commonwealth Transportation Board shall conduct a joint public meeting for the purposes of presenting to the public, and receiving public comments on, the transportation projects proposed and conducted by each entity in Planning District 8. Such presentation shall include documentation regarding how the combined project selection, timing, and revenue sources employed by the entities represents the most efficient use of revenue sources. Such presentation shall include any evaluations or analyses conducted by such entities pursuant to § 33.2-214.1 or subdivision 2 of § 33.2-2500 that relate to Planning District 8. Each entity shall have at least one designee physically assembled at such joint public meeting. Nothing herein shall require a quorum of each such entity to participate in such joint public meeting.

    History. 2018, c. 640; 2019, c. 749.

    The 2019 amendments.

    The 2019 amendment by c. 749 substituted “subdivision 2 of § 33.2-2500 ” for “33.2-257.”

    § 33.2-214.4. Statewide prioritization for the Commonwealth Mass Transit Fund.

      1. The Board shall develop a prioritization process for the use of funds allocated pursuant to subdivision D 2 of § 33.2-1526.1 . Such prioritization process shall be used for the development of the Six-Year Improvement Program adopted annually by the Board pursuant to § 33.2-214 . There shall be a separate prioritization process for state of good repair projects and major expansion projects. The prioritization process shall, for state of good repair projects, be based upon transit asset management principles, including federal requirements for Transit Asset Management pursuant to 49 U.S.C. § 5326. The prioritization process shall, for major expansion projects, be based on an objective and quantifiable analysis that considers the following factors relative to the cost of a major expansion project: congestion mitigation, economic development, accessibility, safety, environmental quality, and land use. A. 1. The Board shall develop a prioritization process for the use of funds allocated pursuant to subdivision D 2 of § 33.2-1526.1 . Such prioritization process shall be used for the development of the Six-Year Improvement Program adopted annually by the Board pursuant to § 33.2-214 . There shall be a separate prioritization process for state of good repair projects and major expansion projects. The prioritization process shall, for state of good repair projects, be based upon transit asset management principles, including federal requirements for Transit Asset Management pursuant to 49 U.S.C. § 5326. The prioritization process shall, for major expansion projects, be based on an objective and quantifiable analysis that considers the following factors relative to the cost of a major expansion project: congestion mitigation, economic development, accessibility, safety, environmental quality, and land use.
      2. The Board shall solicit input from localities, metropolitan planning organizations, transit authorities, transportation authorities, and other stakeholders in its development of the prioritization process pursuant to this subsection. Further, the Board shall explicitly consider input provided by an applicable metropolitan planning organization or the Northern Virginia Transportation Authority when developing the prioritization process set forth in subdivision 1 for a metropolitan planning area with a population of over 200,000 individuals.
      1. The Board shall create for the Department of Rail and Public Transportation a Transit Service Delivery Advisory Committee, consisting of two members appointed by the Virginia Transit Association, one member appointed by the Community Transportation Association of Virginia, one member appointed by the Virginia Municipal League, one member appointed by the Virginia Association of Counties, and three members appointed by the Director of the Department of Rail and Public Transportation, to advise the Department of Rail and Public Transportation in the development of the process set forth in subdivision 2. The Transit Service Delivery Advisory Committee shall elect a chairman from among its membership. The Department of Rail and Public Transportation shall provide administrative support to the Transit Service Delivery Advisory Committee. The Transit Service Delivery Advisory Committee shall meet at least annually and consult with interested stakeholders and hold at least one public hearing and report its findings to the Director of the Department of Rail and Public Transportation. B. 1. The Board shall create for the Department of Rail and Public Transportation a Transit Service Delivery Advisory Committee, consisting of two members appointed by the Virginia Transit Association, one member appointed by the Community Transportation Association of Virginia, one member appointed by the Virginia Municipal League, one member appointed by the Virginia Association of Counties, and three members appointed by the Director of the Department of Rail and Public Transportation, to advise the Department of Rail and Public Transportation in the development of the process set forth in subdivision 2. The Transit Service Delivery Advisory Committee shall elect a chairman from among its membership. The Department of Rail and Public Transportation shall provide administrative support to the Transit Service Delivery Advisory Committee. The Transit Service Delivery Advisory Committee shall meet at least annually and consult with interested stakeholders and hold at least one public hearing and report its findings to the Director of the Department of Rail and Public Transportation.
      2. The Department of Rail and Public Transportation, in conjunction with the Transit Service Delivery Advisory Committee, shall develop a process for the distribution of the funds allocated pursuant to subdivision D 1 of § 33.2-1526.1 and the incorporation by transit systems of the service delivery factors set forth therein into their transit development plans. Prior to the Board approving service delivery factors, the Director of the Department of Rail and Public Transportation and the Chairman of the Transit Service Delivery Advisory Committee shall brief the House Committees on Appropriations and Transportation and the Senate Committees on Finance and Appropriations and on Transportation regarding the findings and recommendations of the Transit Service Delivery Advisory Committee and the Department of Rail and Public Transportation. Before redefining any component of the service delivery factors, the Board shall consult with the Director of the Department of Rail and Public Transportation, the Transit Service Delivery Advisory Committee, and interested stakeholders, and shall provide for a 45-day public comment period. The process required to be delivered by this subsection shall be adopted no later than July 1, 2019, and shall apply beginning with the fiscal year 2020-2025 Six-Year Improvement Program.

    History. 2018, cc. 854, 856; 2020, cc. 1230, 1275.

    The number of this section was assigned by the Virginia Code Commission, the number in the 2018 acts having been § 33.2-214.3 .

    Editor’s note.

    Acts 2018, cc. 854 and 856, cl. 9 provides: “That the Department of Rail and Public Transportation shall develop a prioritization process as required by § 33.2-214.4 of the Code of Virginia, as created by this act, for the Commonwealth Transportation Board’s consideration. The Board shall implement the prioritization process required by § 33.2-214.4 of the Code of Virginia, as created by this act, no later than July 1, 2019, and use such process for the development of the Six-Year Improvement Program for fiscal years 2020 through 2025.”

    The Virginia Code Commission authorized the substitution of “Senate Committees on Finance and Appropriations and on Transportation” for “Senate Committees on Finance and Transportation.” March 10, 2021.

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and substituted “subdivision D” for “subdivision C” in subsection A; and substituted “subdivision D” for “subdivision C” in subdivision B 1.

    § 33.2-215. Policies and operation of Departments.

    The Board shall have the power and duty to review and approve policies and transportation objectives of the Department of Transportation and the Department of Rail and Public Transportation, to assist in establishing such policies and objectives, to oversee the execution thereof, and to report on these policies and objectives to the Commissioner of Highways and the Director of the Department of Rail and Public Transportation, respectively.

    History. Code 1950, § 33-12; 1956, c. 92; 1964, c. 265; 1970, c. 322, § 33.1-12; 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c. 13; 1988, cc. 844, 903; 1989, c. 727; 1992, c. 167; 1995, c. 94; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805.

    § 33.2-216. Roadside memorials; penalty.

    1. The Board shall establish regulations regarding size, distance from the roadway, and other safety concerns to govern the installation, maintenance, and removal of roadside memorials, plaques, and other devices placed within the right-of-way that commemorate the memory of persons killed in vehicle crashes within the right-of-way of any state highway.
    2. Any person who installs any plaque, device, sign, object, material, or other memorial within the right-of-way of any highway controlled by the Department except in accordance with criteria established as provided in this section may be assessed a civil penalty of no more than $100. Each occurrence shall be subject to a separate penalty. All civil penalties collected under this section shall be paid into the Highway Maintenance and Operating Fund established pursuant to § 33.2-1530 .

    History. 2002, c. 96, § 33.1-206.1; 2014, c. 805.

    § 33.2-217. Prohibition of certain weeds and plants on highway rights-of-way.

    Neither the Board nor the Commissioner of Highways shall plant or cause or suffer to be planted on the right-of-way of any state highway any of the weeds or plants known as devil shoestring ( Tephrosia virginiana ), Johnson grass ( Sorghum halepense ), or barberry ( Berberis vulgaris ) if the governing body of the county in which the highway is located declares by resolution such weeds or plants to be injurious to adjacent property.

    The Board shall cause all such weeds or plants planted or caused to be planted by the Board or Commissioner of Highways on any state highway right-of-way to be dug up and destroyed.

    Any owner of land adjacent to any state or other public highway right-of-way, or his agents and employees, may dig up, cut down, or otherwise remove and destroy any of such plants or weeds and any other plants or weeds that are or may become noxious or otherwise injurious to his property found growing upon any state or other public highway right-of-way adjacent to his land.

    History. Code 1950, § 33-124; 1970, c. 322, § 33.1-209; 2014, c. 805.

    § 33.2-218. Fees for participating in the Integrated Directional Sign Program.

    The Board shall establish reasonable fees to be collected by the Commissioner of Highways from any qualified entity for the purpose of participating in the Integrated Directional Sign Program (IDSP) administered by the Department or its agents that is designed to provide information to the motoring public relating to gasoline and motor vehicle services, food, lodging, attractions, or other categories as defined by the IDSP. Such fees shall be deposited into a special fund specifically accounted for and used by the Commissioner of Highways solely to defray the actual costs of supervising and administering the signage programs. Included in these costs shall be a reasonable margin, not to exceed 10 percent, in the nature of a reserve fund.

    History. 2005, c. 491, § 33.1-12.01; 2014, c. 805.

    Editor’s note.

    Former § 33.1-12.01, from which this section was derived, was enacted by Acts 2005, c. 491, and codified at the direction of the Virginia Code Commission.

    § 33.2-219. Statements to be filed with Commonwealth Transportation Board by transit systems.

    Any transit system that conducts its operations within the exclusive jurisdiction of any locality or within the boundaries of any district as defined in § 33.2-1901 , and any adjoining locality, shall file annually with the Board such financial and other statistical data as the Board shall require in order to effectively administer the provisions of § 46.2-206 and shall file with the Department of Rail and Public Transportation, at such times as the Department of Rail and Public Transportation shall require, such information as the Department of Rail and Public Transportation shall require to carry out its duties under subdivision 4 of § 33.2-285 .

    The provisions of this section shall not be construed so as to exempt any such transit system from any provision of law or regulation made pursuant to law that requires the filing of data with any other agency of the Commonwealth.

    History. 1972, c. 290, § 33.1-223.1; 1984, c. 760; 1992, c. 167; 2014, c. 805.

    § 33.2-220. Transfer of interest in and control over certain highways, highway rights-of-way, and landings.

    Notwithstanding any contrary provision of this title, the Board, upon receipt of a written request from a public access authority established pursuant to Title 15.2 and without first abandoning or discontinuing such highway, highway right-of-way, or landing, including a wharf, pier, or dock, may transfer to such requesting authority any and all rights and interests of the Board in a highway, highway right-of-way, or landing as the Board may deem in the public interest. Such transfer may be either with or without compensation from the requesting authority.

    History. 2007, c. 304, § 33.1-223.2:17; 2011, c. 667; 2014, c. 805.

    § 33.2-221. Other powers, duties, and responsibilities.

    1. The Board shall have the power and duty to comply fully with the provisions of the present or future federal aid acts. The Board may enter into all contracts or agreements with the United States government and may do all other things necessary to carry out fully the cooperation contemplated and provided for by present or future acts of Congress related to transportation.
    2. The Board shall have the power and duty to enter into all contracts with other states necessary for the proper coordination of the location, construction, maintenance, improvement, and operation of transportation systems, including the systems of state highways with the highways of such other states, and where necessary, seek the approval of such contracts by the Congress of the United States.
    3. The Board shall have the power and duty to administer, distribute, and allocate funds in the Transportation Trust Fund as provided by law. The Board shall ensure that the total funds allocated to any highway construction project are equal to total expenditures within 12 months following completion of the project.
    4. The Board shall have the power and duty, with the advice of the Secretary of Finance and the State Treasurer, to engage a financial advisor and investment advisor who may be anyone within or without the government of the Commonwealth to assist in planning and making decisions concerning the investment of funds and the use of bonds for transportation purposes. The work of these advisors shall be coordinated with the Secretary of Finance and the State Treasurer.
    5. The Board shall have the power and duty to enter into payment agreements with the Treasury Board related to payments on bonds issued by the Commonwealth Transportation Board.
    6. When the traffic-carrying capacity of any of the systems of state highways or a portion thereof is increased by construction or improvement, the Board may enter into agreements with localities, authorities, and transportation districts to establish highway user fees for such system of state highways or portion thereof that the localities, authorities, and transportation districts maintain.

    History. Code 1950, § 33-12; 1956, c. 92; 1964, c. 265; 1970, c. 322, § 33.1-12; 1974, c. 462; 1977, c. 150; 1978, c. 650; 1986, Sp. Sess., c. 13; 1988, cc. 844, 903; 1989, c. 727; 1992, c. 167; 1995, c. 94; 2001, c. 349; 2003, cc. 281, 533, 560; 2004, c. 110; 2005, cc. 839, 919; 2006, cc. 197, 417, 833, 924; 2006, Sp. Sess. I, c. 8; 2007, c. 337; 2008, Sp. Sess. II, c. 5; 2009, cc. 670, 690; 2011, cc. 104, 164; 2012, cc. 729, 733; 2013, cc. 388, 569, 585, 646, 741; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 in subsection C deleted “However, this requirement shall not apply to debt service appointments pursuant to § 33.2-362 or 33.2-364 ” at the end.

    CASE NOTES

    As to the power and duty of highway authorities to construct the interstate highway system in Virginia so as to take full advantage of available federal funds. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971) (decided under prior law).

    § 33.2-221.1. Use of biodiesel and other alternative fuels in vehicles providing public transportation.

    1. As used in this section, unless the context requires a different meaning, “biodiesel fuel” means a renewable, biodegradable, mono-alkyl ester combustible liquid fluid fuel from agricultural plant oils or animal fats that meets the applicable American Society for Testing and Materials (ASTM) Specification for Biodiesel Fuel (B100) Blend Stock for Distillate Fuels.
    2. The Board shall encourage the use of biodiesel fuel and other alternative fuels, to the extent practicable, in buses and other vehicles used to provide public transportation in the Commonwealth.

    History. 2006, c. 939, §§ 67-500, 67-501; 2006, c. 939, §§ 67-500, 67-501; 2021, Sp. Sess. I, c. 387.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 387, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2021.”

    Article 3. Commissioner of Highways.

    § 33.2-222. Commissioner of Highways.

    The Commissioner of Highways shall be the chief executive officer of the Department of Transportation. The Commissioner of Highways shall be an experienced administrator able to direct and guide the Department in the establishment and achievement of the Department’s core mission as provided in subsection B of § 33.2-256 and other transportation objectives determined by the Commonwealth Transportation Board.

    The Commissioner of Highways shall devote his entire time and attention to his duties as chief executive officer of the Department and shall receive such compensation as shall be fixed by law. He shall also be reimbursed for his actual travel expenses while engaged in the discharge of his duties.

    In the event of a vacancy due to the death, temporary disability, retirement, resignation, or removal of the Commissioner of Highways, the Governor may appoint and thereafter remove at his pleasure an “Acting Commissioner of Highways” until such time as the vacancy may be filled as provided in § 33.2-200 . Such “Acting Commissioner of Highways” shall have all powers and perform all duties of the Commissioner of Highways as provided by law and shall receive such compensation as may be fixed by the Governor. In the event of the temporary disability for any reason of the Commissioner of Highways, full effect shall be given to the provisions of § 2.2-605 .

    History. Code 1950, § 33-3; 1960, c. 271; 1963, Ex. Sess., c. 3; 1964, c. 265; 1970, c. 322, § 33.1-3; 1974, c. 462; 1990, cc. 1, 317; 1995, cc. 195, 223; 2007, c. 896; 2014, c. 805; 2017, cc. 166, 273.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 130 provides: “§ 1. The Commissioner of Highways or his designee shall convene a working group with relevant stakeholders, including the Virginia Association of Counties and the Virginia Municipal League, to determine whether there should be model policies for crosswalk design and installation in the Commonwealth and, if so, establish recommendations for such model policies. Any such policies shall promote statewide uniformity, maximize pedestrian safety, and consider the needs of people with disabilities that impair sight or mobility. The working group shall monitor and provide input to the U.S. Department of Transportation and the Federal Highway Administration as updates to crosswalk designs in the Manual on Uniform Traffic Control Devices for Streets and Highways are considered. The working group shall submit to the Governor and the General Assembly a report on its findings and recommendations by November 1, 2021.”

    The 2017 amendments.

    The 2017 amendments by cc. 166 and 273 are identical, and substituted “Department’s core mission as provided in subsection B of § 33.2-256 and other transportation objectives determined by the Commonwealth Transportation Board” for “Commonwealth’s long-range highway and other transportation objectives” in the first paragraph.

    § 33.2-223. General powers of Commissioner of Highways.

    Except such powers as are conferred by law upon the Board and the Office of Intermodal Planning and Investment of the Secretary of Transportation, the Commissioner of Highways shall have the power to do all acts necessary or convenient for constructing, improving, maintaining, and preserving the efficient operation of the highways embraced in the systems of state highways and to further the interests of the Commonwealth in the areas of public transportation, railways, seaports, and airports. And as executive head of the Department, the Commissioner of Highways is specifically charged with the duty of executing all orders and decisions of the Board and may, subject to the provisions of this chapter, require that all appointees and employees perform their duties under this chapter.

    In addition, the Commissioner of Highways, in order to maximize efficiency, shall take such steps as may be appropriate to outsource or privatize any of the Department’s functions that might reasonably be provided by the private sector. Procuring equipment and labor to ensure that adequate resources will be available to address emergency and weather-related events as they may arise, including snow and ice removal services, shall be considered an emergency under subsection F of § 2.2-4303 , and the Commissioner of Highways shall have the authority to establish and utilize such procedures as he deems necessary and most efficient to obtain and ensure the availability of such services to protect the safety and security of the traveling public.

    History. Code 1950, § 33-13; 1970, c. 322, § 33.1-13; 1974, c. 462; 1978, c. 652; 1986, Sp. Sess., c. 13; 2007, cc. 863, 896, 928; 2014, c. 805; 2016, c. 538; 2018, c. 828.

    The 2016 amendments.

    The 2016 amendment by c. 538 added the last sentence in the section.

    The 2018 amendments.

    The 2018 amendment by c. 828 inserted “and the Office of Intermodal Planning and Investment of the Secretary of Transportation” in the first paragraph.

    CASE NOTES

    Right of highway department employee to go upon private property. —

    Incidental to the satisfactory completion of a highway project and pursuant to the plenary powers granted by this section, it is proper for an employee of the department to go upon private property, with the consent of the owners, to remedy one of the conditions necessitating improvements to the state highway. Bowers v. Commonwealth, Dep't of Hwys. & Transp., 225 Va. 245 , 302 S.E.2d 511, 1983 Va. LEXIS 215 (1983) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Duty. —

    Motorist alleged a sufficient duty to maintain a cause of action against the Commonwealth for injuries the motorist sustained when a tree fell and struck his vehicle where this section placed the duty of maintaining the road by removing and trimming trees. Zook v. City of Norfolk, 87 Va. Cir. 47, 2013 Va. Cir. LEXIS 153 (Norfolk July 19, 2013).

    § 33.2-224. Employees; delegation of responsibilities.

    The Commissioner of Highways shall employ such engineers, clerks, assistants, and other employees as may be needed and shall prescribe and fix their duties, including the delegation of duties and responsibilities conferred or imposed upon the Commissioner of Highways by law. They shall receive all salaries and expenses as may be fixed in accordance with the provisions of law.

    History. Code 1950, § 33-7; 1952, c. 41; 1970, c. 322, § 33.1-8; 1974, c. 462; 1982, c. 177; 1983, c. 127; 1995, cc. 195, 223; 2001, cc. 69, 87; 2011, cc. 36, 152; 2014, c. 805.

    § 33.2-225. Liaison duties with other organizations.

    Tasks and responsibilities concerning transportation program or project delivery shall be carried out as follows:

    1. The Commissioner of Highways shall cooperate with the federal government, the American Association of State Highway and Transportation Officials, and any other organization in the numbering, signing, and marking of highways; in the taking of measures for the promotion of highway safety; in research activities; in the preparation of standard specifications; in the testing of highway materials; and otherwise with respect to transportation projects.
    2. The Department of Transportation and the Department of Rail and Public Transportation may offer technical assistance and coordinate state resources, as available, to work with local governments, upon their request, in developing sound transportation components for their local comprehensive plans.

    History. 2013, cc. 585, 646, § 33.1-190.4; 2014, c. 805.

    § 33.2-226. Authority to lease or convey airspace.

    The Commissioner of Highways may lease or sell and convey the airspace superjacent or subjacent to any highway in the Commonwealth that is within his jurisdiction and in which the Commonwealth owns fee simple title after satisfying itself that use of the airspace will not impair the full use and safety of the highway or otherwise interfere with the free flow of traffic thereon and it cannot be reasonably foreseen as needed in the future for highway and other transit uses and purposes. The Commissioner of Highways may provide in such leases and conveyances of airspace for columns of support, in fee or otherwise, ingress, egress, and utilities.

    No lease or conveyance shall be entered into by the Commissioner of Highways unless the locality, by action of its governing body by majority recorded vote, approves the projected use of the airspace in question and has taken such steps as it deems proper to regulate the type and use of the improvements to be erected in such airspace by appropriate zoning or other method of land use control.

    All leases and conveyances shall contain those terms deemed necessary by the Commissioner of Highways to protect the interests of the Commonwealth and the public. The Commissioner of Highways may utilize any competitive procurement process authorized by law, including (i) competitive sealed bidding, (ii) competitive negotiation, (iii) best value procurements as defined in § 2.2-4301 , and (iv) public-private partnerships pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.), as determined by the Commissioner of Highways, in his sole discretion, to be appropriate and the method most likely to achieve the identified goals of the proposed lease or sale and conveyance of airspace. The Commissioner of Highways may reject any bid or offer that he believes is not in the best interest of the Commonwealth.

    Compensation paid for such leases and conveyances shall be credited to the Priority Transportation Fund established pursuant to § 33.2-1527 .

    History. 1979, c. 431, § 33.1-183.1; 2013, cc. 585, 646; 2014, c. 805; 2017, c. 278; 2020, cc. 1230, 1275.

    The 2017 amendments.

    The 2017 amendment by c. 278, in the second paragraph, substituted “unless” for “until after the time” and “of the airspace in question and has” for “and has zoned the airspace in question or has otherwise,” and inserted “by appropriate zoning or other method of land use control”; and rewrote the third paragraph, which formerly read “All leases and conveyances shall contain those terms deemed necessary by the Commissioner of Highways to protect the interests of the Commonwealth and the public and shall not be entered into until after public advertising for bids for such airspace. The Commissioner of Highways shall advertise for bids at least 14 days prior to the execution of a lease or a conveyance. The advertisement shall state the place where bidders may examine a map of the airspace, the general terms of the lease or conveyance and the time and place when bids will be opened by the Commissioner of Highways. The highest bid from a responsible bidder, in the sole discretion of the Commissioner of Highways, shall be accepted; however, the Commissioner of Highways may reject all bids and advertise the property again.”

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and substituted “Priority Transportation Fund established pursuant to § 33.2-1527 ” for “Transportation Trust Fund established pursuant to § 33.2-1524 ” in the fourth paragraph.

    § 33.2-227. Defense of employees.

    If any person employed by the Commonwealth Transportation Board, the Department of Transportation, or the Department of Rail and Public Transportation is arrested or indicted or otherwise prosecuted on any charge arising out of any act committed in the discharge of his official duties, the Commissioner of Highways or the Director of the Department of Rail and Public Transportation may employ special counsel approved by the Attorney General to defend such employee. The compensation for special counsel employed, pursuant to this section, shall, subject to the approval of the Attorney General, be paid by the agency for which the employee works out of the funds appropriated for the administration of the Department of Transportation or the Department of Rail and Public Transportation.

    History. Code 1950, § 33-11.1; 1958, c. 542; 1970, c. 322, § 33.1-11; 1974, c. 462; 2013, cc. 585, 646; 2014, c. 805.

    § 33.2-228. Agreements between Commissioner of Highways and certain localities.

    Notwithstanding the provisions of §§ 33.2-209 , 33.2-214 , and 33.2-221 , the Commissioner of Highways, pursuant to a resolution adopted by the Board and following receipt of a resolution adopted by the governing body of a locality, may enter into an agreement with any such locality pursuant to which the locality assumes responsibility for the design, right-of-way acquisition, and construction of highways or portions thereof in such locality, using funds allocated pursuant to § 33.2-371 .

    History. 2004, c. 623, § 33.1-12.1; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 substituted “locality” for “city or town” throughout the section; deleted “33.2-362” preceding “the Commissioner”; deleted “to which funds are apportioned pursuant to § 33.2-362” following “body of a”; deleted “urban system” preceding “highways or portions thereof”; substituted “§ 33.2-371 ” for “subdivision C of § 33.2-358 ”; and made a related change.

    § 33.2-229. Furnishing information regarding right-of-way transactions.

    Upon written request to the central office of the Department, the Commissioner of Highways shall furnish information regarding right-of-way transactions where any public funds are expended. Such information shall not be released prior to 60 days following the transaction to any person not a party directly interested in such transaction.

    The information furnished under this section shall consist of (i) the name of the person to whom any sum was paid for land or interest therein, (ii) the amount of land or interest therein acquired from such person, and (iii) the amount paid such person for land and the amount paid for damage resulting to the remaining property of such person.

    History. Code 1950, § 33-15.1; 1958, c. 316; 1960, c. 352; 1970, c. 322, § 33.1-16; 1974, c. 462; 2014, c. 805.

    § 33.2-230. Written notice of decision to dispose of real property.

    Whenever the Board or the Department decides to sell or otherwise dispose of any surplus real property, the Commissioner of Highways shall provide written notice of such decision to the mayor or chairman of the governing body of the locality in which the property or any portion thereof is located. Any failure to provide or receive such notice shall not create a cloud on the title to the property.

    History. 1999, c. 287, § 33.1-223.2:2; 2014, c. 805.

    § 33.2-231. Establish community service landscaping program.

    The Commissioner of Highways shall establish a program whereby persons convicted of nonviolent misdemeanors who have received a suspended sentence or probation can fulfill their community service requirements by mowing rights-of-way and performing other landscaping maintenance tasks for roads and highways that the Department has the responsibility to maintain.

    History. 2008, c. 688, § 33.1-12.2; 2014, c. 805.

    § 33.2-232. Biennial reports by Commissioner of Highways and the Office of Intermodal Planning and Investment.

    1. The Secretary of Transportation shall ensure that the reports required under subsections B and C are provided in writing to the Governor, the General Assembly, and the Commonwealth Transportation Board by the dates specified.
    2. The Commissioner of Highways shall provide to each recipient specified in subsection A, no later than November 1 of each even-numbered year, a report, the content of which shall be specified by the Board and shall contain, at a minimum:
      1. The methodology used to determine maintenance needs, including an explanation of the transparent methodology used for the allocation of funds from the Highway Maintenance and Operating Fund pursuant to subsection A of § 33.2-352 ;
      2. The methodology approved by the Board for the allocation of funds for state of good repair purposes as defined in § 33.2-369 and, if necessary, an explanation and rationale for any waiver of the cap provided for in subsection B of § 33.2-369 ;
      3. The expenditures from the Highway Maintenance and Operating Program for the past fiscal year by asset class or activity and by construction district as well as the planned expenditure for the current fiscal year;
      4. A description of transportation systems management and operations in the Commonwealth and the operating condition of primary and secondary state highways, including location and average duration of incidents;
      5. A listing of prioritized pavement and bridge needs based on the priority ranking system developed by the Board pursuant to § 33.2-369 and a description of the priority ranking system;
      6. A description of actions taken to improve highway operations within the Commonwealth, including the use of funds in the Innovation and Technology Transportation Fund established pursuant to § 33.2-1531 ;
      7. The use of funds in the Special Structure Fund established pursuant to § 33.2-1532 ;
      8. The status of the Interstate Operations and Enhancement Program, including, at a minimum, the allocation of revenues for the program, the current and projected performance of each interstate highway corridor, and the anticipated benefits of funded strategies, capital improvements, and services by the interstate highway; and
      9. A review of the Department’s collaboration with the private sector in delivering services.
    3. The Office of Intermodal Planning and Investment of the Secretary of Transportation shall provide to each recipient specified in subsection A, no later than November 1 of each odd-numbered year, a report, the content of which shall be specified by the Board and shall contain, at a minimum:
      1. A list of transportation projects approved or modified during the prior fiscal year, including whether each such project was evaluated pursuant to § 33.2-214.1 and the program from which each such project received funding;
      2. The results of the most recent project evaluations pursuant to § 33.2-214.1 , including a comparison of (i) projects selected for funding with projects not selected for funding, (ii) funding allocated by district and by mode of transportation, and (iii) the size of projects selected for funding;
      3. The current performance of the Commonwealth’s surface transportation system, the targets for future performance, and the progress toward such targets based on the measures developed pursuant to § 2.2-229 ;
      4. The status of the Virginia Transportation Infrastructure Bank, including the balance in the Bank, funding commitments made over the prior fiscal year, and performance of the current loan portfolio;
      5. The status of the Toll Facilities Revolving Account, including the balance in the account, project commitments from the account, repayment schedules, and the performance of the current loan portfolio; and
      6. Progress made toward achieving the performance targets established by the Commonwealth Transportation Board.
    4. The purpose of the reports required pursuant to this section is to ensure transparency and accountability in the use of transportation funds. Reports required by this section shall be made available to the public on the website of the Commonwealth Transportation Board.

    History. 2011, cc. 36, 152, § 33.1-13.03; 2014, cc. 290, 805; 2015, c. 684; 2016, c. 711; 2017, c. 537; 2018, c. 828; 2020, cc. 1230, 1275.

    Editor’s note.

    Acts 2014, c. 290 amended § 33.1-13.03, from which this section is derived. Pursuant to § 30-152, the 2014 amendment by c. 290 has been given effect in this section by inserting clause (iv) and redesignating former clause (iv) as clause (v).

    Acts 2019, cc. 401 and 568, cl. 1 expires January 1, 2021, and provides: “§ 1. The Commissioner of Highways shall report annually by December 1 to the Governor, the General Assembly, and the Commonwealth Transportation Board regarding the operation of overweight vehicles on highways of the Commonwealth. The report shall include, at a minimum, (i) data regarding the frequency and severity of incidents and crashes involving overweight trucks compared to other trucks, (ii) the maintenance and infrastructure needs of routes frequently used by overweight trucks and comparison of such needs to similar routes not frequented by such trucks, and (iii) the estimated number of additional vehicle miles that would be necessary if such vehicles were not permitted to carry overweight loads. In submitting the report, the Commissioner shall indicate if additional data is needed to provide further reports, and if so, include a proposal for additional data collection. Nothing herein shall be construed to require the Commissioner to prospectively gather additional data not already collected by the Commissioner or any transportation agency.”

    The 2015 amendments.

    The 2015 amendment by c. 684 rewrote the section.

    The 2016 amendments.

    The 2016 amendment by c. 711 inserted the present second sentence in the introductory paragraph; and added subdivision 8 and made related changes.

    The 2017 amendments.

    The 2017 amendment by c. 537 deleted “Beginning with the November 2015 report through the November 2019 report” at the beginning of subdivision 3; deleted “Beginning with the November 2016 report” at the beginning of subdivision 5; added subdivisions 9 and 10; and made related changes.

    The 2018 amendments.

    The 2018 amendment by c. 828 rewrote the section.

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and deleted “and” preceding “§ 33.2-1531 ” in subdivision B 6; added subdivisions B 7 and B 8; and renumbered former subdivision B 8 as subdivision B 9.

    § 33.2-233. (Effective until July 1, 2022) Gathering and reporting of information and statistics.

    The Commissioner of Highways and the Director of the Department of Rail and Public Transportation shall gather and tabulate information and statistics relating to transportation and disseminate the same throughout the Commonwealth. In addition, the Commissioner of Highways shall provide a report to the Governor, the General Assembly, the Board, and the public concerning the current status of all highway construction projects in the Commonwealth. This report shall be posted at least four times each fiscal year but may be updated more often as circumstances allow. The report shall contain, at a minimum, the following information for every project in the Six-Year Improvement Program: (i) project description; (ii) total cost estimate; (iii) funds expended to date; (iv) project timeline and completion date; (v) statement of whether project is ahead of, on, or behind schedule; (vi) the name of the prime contractor; (vii) total expenditures of federal transportation funds in each county and city; (viii) total expenditures of state transportation funds in each county and city; (ix) statewide totals for federal, state, and local funds expended for highways; (x) statewide totals for federal, state, and local funds expended for transit; (xi) total funds expended on intercity passenger and freight rail line and trains; and (xii) total funds expended in each federal and state programmatic category. Use of one or more websites may be used to satisfy this requirement. Project-specific information posted on the Internet shall be updated daily as information is available.

    History. 2013, cc. 585, 646, § 33.1-13.05; 2014, c. 805.

    The 2022 amendments.

    The 2022 amendment by c. 680, added the subsection A designation; added subsection B.

    § 33.2-233. (Effective July 1, 2022) Gathering and reporting of information and statistics.

    1. The Commissioner of Highways and the Director of the Department of Rail and Public Transportation shall gather and tabulate information and statistics relating to transportation and disseminate the same throughout the Commonwealth. In addition, the Commissioner of Highways shall provide a report to the Governor, the General Assembly, the Board, and the public concerning the current status of all highway construction projects in the Commonwealth. This report shall be posted at least four times each fiscal year but may be updated more often as circumstances allow. The report shall contain, at a minimum, the following information for every project in the Six-Year Improvement Program: (i) project description; (ii) total cost estimate; (iii) funds expended to date; (iv) project timeline and completion date; (v) statement of whether project is ahead of, on, or behind schedule; (vi) the name of the prime contractor; (vii) total expenditures of federal transportation funds in each county and city; (viii) total expenditures of state transportation funds in each county and city; (ix) statewide totals for federal, state, and local funds expended for highways; (x) statewide totals for federal, state, and local funds expended for transit; (xi) total funds expended on intercity passenger and freight rail line and trains; and (xii) total funds expended in each federal and state programmatic category. Use of one or more websites may be used to satisfy this requirement. Project-specific information posted on the Internet shall be updated daily as information is available.
    2. The Department shall develop performance metrics that measure the efficiency and quality of the Department’s processes for the review of and approval of subdivision and commercial development plans. The Commissioner of Highways shall gather and tabulate information to support development of the performance metrics. The data collected and reported shall include, at a minimum, (i) the length of time that it takes the Department to review plans from the date the plans are received in the local office of the Department until comments are returned to the local government; (ii) the number of reviews that are required to achieve final approval of plans; and (iii) measures reported at the residency, district, and statewide levels of the Department.

      The Department shall adopt performance standards for the review and approval of subdivision and commercial development plans no later than January 1, 2025. Once performance standards are developed, these measures will be reported and made available for public view on the Department’s website and shall be updated on a quarterly basis.

    History. 2013, cc. 585, 646, § 33.1-13.05; 2014, c. 805; 2022, c. 680.

    § 33.2-234. Construction by state or local employees.

    1. Irrespective of the provisions of § 33.2-235 , in cases of emergency or on any project reasonably estimated to cost not more than $700,000, the Commissioner of Highways may build or maintain any of the highways in the systems of state highways by state employees or local employees as he may designate.
    2. Notwithstanding the provisions of subsection A, the Commissioner of Highways may enter into a written agreement with a locality for the building and maintenance of any of the highways in the systems of state highways by local employees provided that (i) the locality has obtained a cost estimate for the work of not more than $1 million and (ii) the locality has issued an invitation for bid and has received fewer than two bids from private entities to build or maintain such highways.

    History. Code 1950, § 33-104; 1970, c. 322, § 33.1-190; 1977, c. 678; 1982, c. 647; 1985, c. 130; 1986, Sp. Sess., c. 9; 2006, cc. 434, 480; 2008, c. 472; 2010, cc. 22, 50; 2014, c. 805; 2021, Sp. Sess. I, c. 260.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 260, effective July 1, 2021, substituted “$700,000” for “$600,000” in subsection A.

    § 33.2-235. Procurement.

    All projects reasonably estimated to cost $300,000 or more that the Board or the Commissioner of Highways may undertake for construction shall be let in accordance with the Virginia Public Procurement Act (§ 2.2-4300 et seq.). When such projects are reasonably estimated to cost below $300,000, the Commissioner of Highways may let them to contract, and if such projects are let to contract, they shall be let only in accordance with the Virginia Public Procurement Act.

    As used in this section, “project” means construction and does not include routine maintenance work or the installation of traffic control devices, unless such work is to be performed under contract.

    History. Code 1950, § 33-99; 1970, c. 322, § 33.1-185; 1973, c. 229; 1977, c. 678; 1978, c. 144; 1982, c. 647; 1992, c. 108; 2010, cc. 22, 50; 2014, c. 805.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    This statute is liberally construed to effectuate its purpose. Aetna Cas. & Sur. Co. v. Earle-Lansdell Co., 142 Va. 435 , 129 S.E. 263 , 1925 Va. LEXIS 350 (1925).

    The purpose of this section is to insure competitive bidding in order that the Commonwealth may have the work done at the lowest available price. Ragland v. Commonwealth, 172 Va. 186 , 200 S.E. 601 , 1939 Va. LEXIS 229 (1939).

    Provision for statement of place where plans may be examined is mandatory. —

    The requirement of this section that advertisements for bids for constructing highways shall state the place where bidders may examine the plans and specifications is mandatory and cannot be waived. Trinkle v. Commonwealth, 170 Va. 429 , 196 S.E. 652 , 1938 Va. LEXIS 200 (1938); Ragland v. Commonwealth, 172 Va. 186 , 200 S.E. 601 , 1939 Va. LEXIS 229 (1939).

    Before submitting a bid the contractor should examine the plans and specifications at the place indicated, and this section clearly places upon him the burden of doing so. Ragland v. Commonwealth, 172 Va. 186 , 200 S.E. 601 , 1939 Va. LEXIS 229 (1939).

    To insure that all bids are based on the same specifications, this section contemplates that the authentic and binding specifications are those referred to in the advertisement as being available for inspection by the prospective bidders. Ragland v. Commonwealth, 172 Va. 186 , 200 S.E. 601 , 1939 Va. LEXIS 229 (1939).

    Specifications stated to be on file constitute only authentic and binding specifications. —

    If the advertisement for bids for constructing a highway stated that the plans and specifications were on file in the Department of Highways (now Department of Transportation) for examination by the prospective bidders, then those plans and specifications were the authentic and binding specifications and were superior to any other plans and specifications consulted by any bidder. Trinkle v. Commonwealth, 170 Va. 429 , 196 S.E. 652 , 1938 Va. LEXIS 200 (1938).

    No change or waiver of specifications by subordinates. —

    When the specifications have been promulgated and advertised, as required by this section, they cannot be changed or waived by the subordinate employees of the Department of Highways (now Department of Transportation). Ragland v. Commonwealth, 172 Va. 186 , 200 S.E. 601 , 1939 Va. LEXIS 229 (1939); Main v. Department of Hwys., 206 Va. 143 , 142 S.E.2d 524, 1965 Va. LEXIS 180 (1965).

    § 33.2-236. Maps or plats prepared at request and expense of local governing bodies and other groups; Department of Energy to seek other existing sources.

    The Commissioner of Highways may prepare photogrammetric maps or plats of specific sites or areas at the request of the governing bodies of localities of the Commonwealth, local nonprofit industrial development agencies, planning district commissions, soil and water conservation districts, metropolitan planning organizations, public service authorities, and local chambers of commerce. The Department of Energy shall first review the request to determine whether suitable or alternate maps or plats are currently available, and the local governing body, agency, or chamber shall agree to reimburse the Department of Transportation for the cost of producing the maps or plats.

    History. Code 1950, § 33-136.2; 1962, c. 96; 1970, c. 322, § 33.1-222; 1982, c. 184; 1984, c. 590; 2014, c. 805; 2021, Sp. Sess. I, c. 532.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 532, cl. 2 provides: “That the provisions of this act shall become effective on October 1, 2021.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 532, effective October 1, 2021, substituted “Department of Energy” for “Department of Mines, Minerals and Energy.”

    § 33.2-237. Directional signs for certain educational institutions.

    For the purpose of this section, “Virginia educational institution” means a for-profit educational institution with its main campus located in the Commonwealth that (i) has, for at least five consecutive years prior to making a request under this section, awarded academic degrees approved by the State Council of Higher Education for Virginia; (ii) offers programs in workforce training or job readiness that contribute to Virginia’s economic growth and development; and (iii) has a combined annual enrollment of at least 1,000 students at its main campus and any branch location situated within a radius of 25 miles from the main campus.

    Upon request from a Virginia educational institution, the Commissioner of Highways shall erect and maintain signs at appropriate and conspicuous locations along interstate, primary, or secondary highways providing motorists directions to the main or branch location of any such institution. All costs associated with production and erection of signs under this section shall be borne by the affected institution, but all costs associated with maintenance of those signs shall be borne by the Department.

    Signs erected by the Department under this section shall be placed in accordance with all applicable Department regulations.

    History. 1999, c. 310, § 33.1-223.2:3; 2014, c. 805.

    Editor’s note.

    Former § 33.1-223.2:3, from which this section was derived, was enacted as § 33.1-223.2:2 by Acts 1999, c. 310, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-238. Closing highways for safety of public or proper completion of construction; injury to barriers, signs, etc.

    If it appears to the Commissioner of Highways necessary for the safety of the traveling public or for proper completion of work that is being performed to close any highway under his jurisdiction to all traffic or any class of traffic, the Commissioner of Highways may close, or cause to be closed, the whole or any portion of such highway deemed necessary to be excluded from public travel and may exclude all or any class of traffic from such closed portion. While any such highway or portion thereof is so closed, or while any such highway or portion thereof is in process of construction or maintenance, the Commissioner of Highways, or contractor under authority from the Commissioner of Highways, may erect, or cause to be erected, suitable barriers or obstructions thereon, may post, or cause to be posted, conspicuous notices to the effect that the highway or portion thereof is closed and may place warning signs, lights, and lanterns on such highway or portion thereof. When such highway is closed for the safety of the traveling public or in process of construction or maintenance as provided in this section, any person who willfully breaks down, drives into new construction work, removes, injures, or destroys any such barrier or barriers or obstructions, tears down, removes, or destroys any such notices, or extinguishes, removes, injures, or destroys any such warning lights or lanterns so erected, posted, or placed is guilty of a Class 1 misdemeanor.

    History. Code 1950, § 33-109; 1958, c. 547; 1968, c. 162; 1970, c. 322, § 33.1-193; 2014, c. 805.

    § 33.2-239. Providing highway detours.

    Whenever necessary, the Commissioner of Highways shall select, lay out, maintain, and keep in as good repair as possible suitable detours, by the most practical route, while the highways are being improved or constructed, and he shall place or cause to be placed explicit directions to the traveling public during repair of any such highway under process of construction.

    History. Code 1950, § 33-110; 1970, c. 322, § 33.1-194; 2014, c. 805.

    § 33.2-240. Connections over shoulders of highways for intersecting private roads.

    The Commissioner of Highways shall permit suitable connections from where private roads leading to and from private homes intersect improved highways and over and across the shoulders and unimproved parts of such highways to the paved or otherwise improved parts thereof to provide the users of such private roads safe and convenient means of ingress and egress with motor vehicles to and from the paved or otherwise improved parts of such highways.

    History. Code 1950, § 33-116; 1970, c. 322, § 33.1-197; 2014, c. 805.

    § 33.2-241. Connections over shoulders of highways for intersecting commercial establishment entrances; penalty.

    The Commissioner of Highways shall permit suitable connections from where commercial establishment entrances are desired to intersect improved highways and over and across the shoulders and unimproved parts of such highways to the paved or otherwise improved parts thereof that comply with the access management standards of the Commissioner of Highways for the location, spacing, and design of entrances, taking into account the operating characteristics and federal functional classification of the highway, to provide the users of such entrances safe and convenient means of ingress and egress with motor vehicles to and from the paved or otherwise improved parts of such highways while minimizing the impact of such ingress and egress on the operation of such highways, provided that any person desiring such an entrance shall:

    1. Be required first to obtain a permit therefor from the Commissioner of Highways;
    2. Provide the entrance at his expense;
    3. If required by the Commissioner of Highways, provide for the joint use of the desired entrance with adjacent property owners or provide evidence of such efforts; and
    4. Construct the entrance or have the entrance constructed, including such safety structures as are required by the Commissioner of Highways, pursuant to the Department of Transportation’s design standards and applicable Department regulations concerning access management and applicable Board regulations concerning land use permits.All commercial entrances whether or not constructed under this section shall be maintained by the owner of the premises at all times in a manner satisfactory to the Commissioner of Highways.Any person violating the provisions of this section is guilty of a misdemeanor punishable by a fine of not less than $5 nor more than $100 for each offense. Following a conviction and 15 days for correction, each day during which the violation continues shall constitute a separate and distinct offense and be punishable as such. Such person shall be civilly liable to the Commonwealth for actual damage sustained by the Commonwealth by reason of his wrongful act.The Commissioner of Highways shall document and maintain a list of anyone who has requested an onsite meeting with the resident engineer or his staff. Such list shall also include recommendations made pursuant to the Department of Transportation’s design standards and applicable Department regulations concerning access management and applicable Board regulations concerning land use permits and any associated cost estimates. Such list shall be provided to a locality upon the request of such locality.

    History. Code 1950, § 33-116.1; 1956, c. 91; 1966, c. 378; 1970, c. 322, § 33.1-198; 2005, c. 645; 2007, cc. 863, 928; 2014, c. 805; 2017, c. 542.

    The 2017 amendments.

    The 2017 amendment by c. 542 added the last paragraph.

    § 33.2-242. Replacing entrances destroyed in the repair or construction of highways.

    The Commissioner of Highways shall review the existing access to any parcel of land having an entrance destroyed in the repair or construction of the systems of state highways and shall provide access to the systems of state highways in a manner that will serve the parcel of land and ensure efficient and safe highway operation.

    History. Code 1950, § 33-117; 1970, c. 322, § 33.1-199; 2007, cc. 863, 928; 2014, c. 805.

    § 33.2-243. Paying for damages sustained to personal property by reason of work projects, etc.

    The Commissioner of Highways may pay and settle claims and demands against the Commonwealth arising as a result of damages sustained to personal property by reason of work projects or the operation of state-owned or operated equipment when engaged in the construction, reconstruction, or maintenance of the primary state highway system, unless said claims or demands arise as a result of negligence of the person asserting such claims or demands. Nothing in this section shall be construed as imposing any legal liability upon the Commonwealth to pay such claims or demands, nor as giving the consent of the Commonwealth to be sued in any action or suit to recover on such claims or demands in the event the Commissioner of Highways refuses payment of said claims or demands.

    History. Code 1950, § 33-117.1; 1970, c. 322, § 33.1-200; 2014, c. 805.

    § 33.2-244. Removal of snow and ice from public highways by private entities.

    Upon request by a person, the Commissioner of Highways may authorize such person to hire private persons, firms, contractors, or entities to remove snow and ice from any public highway in Planning District 8, provided that there will be no costs to the Commonwealth or its political subdivisions for work pursuant to this section. No private person, firm, contractor, or entity employed to remove snow and ice from any public highway shall be afforded sovereign immunity or immunity in any form whatsoever. Private persons, firms, contractors, or entities so employed shall be liable for civil damages, including damages for death, injury, or property damage resulting from any act or omission relating to the removal of snow and ice from public highways. Nothing contained in this section shall limit the authority of the Commissioner of Highways granted under other provisions of law to authorize or contract for the removal of snow and ice from public highways.

    History. 1996, c. 714, § 33.1-200.2; 2014, c. 805.

    § 33.2-245. Comprehensive highway access management standards.

    1. For purposes of this section, “comprehensive highway access management standards” means a coordinated set of state standards and guidelines that allow the Commonwealth and its localities to manage access to the systems of state highways according to their federal functional classification or operational characteristics through the control of and improvements to the location, number, spacing, and design of entrances, median openings, turn lanes, street intersections, traffic signals, and interchanges.
    2. The General Assembly declares it to be in the public interest that comprehensive highway access management standards be developed and implemented to enhance the operation and safety of the systems of state highways in order to protect the public health, safety, and general welfare while ensuring that private property is entitled to reasonable access to the systems of state highways. The goals of the comprehensive highway access management standards are:
      1. To reduce traffic congestion and impacts to the level of service of highways, leading to reduced fuel consumption and air pollution;
      2. To enhance public safety by decreasing traffic crash rates;
      3. To support economic development in the Commonwealth by promoting the efficient movement of people and goods;
      4. To reduce the need for new highways and road widening by improving the performance of the existing systems of state highways; and
      5. To preserve public investment in new highways by maximizing their performance.
    3. The Commissioner of Highways shall develop and implement comprehensive highway access management standards for managing access to and preserving and improving the efficient operation of the systems of state highways. The comprehensive highway access management standards shall include standards and guidelines for the location, number, spacing, and design of entrances, median openings, turn lanes, street intersections, traffic signals, and interchanges.Nothing in such standards shall preempt the authority of a local government to regulate the type or density of land uses abutting the systems of state highways.The Commissioner of Highways shall require that any official who approves any highway access project shall certify that he has applied due diligence in approving such project and that such approval is, in his professional opinion, consistent with the minimum standards developed pursuant to this section. An appeal of the denial, revocation, or conditions of a permit shall be in accordance with the provisions of 24 VAC 30-73-50.

    History. 2007, cc. 863, 928, § 33.1-198.1; 2014, c. 805; 2019, c. 157.

    The 2019 amendments.

    The 2019 amendment by c. 157 added the third paragraph of subsection C.

    § 33.2-246. Recreational waysides; regulations; penalties.

    1. To promote the safety, convenience, and enjoyment of travel on, and protection of the public investment in, highways of the Commonwealth and for the restoration, preservation, and enhancement of scenic beauty within and adjoining such highways, it is hereby declared to be in the public interest to acquire and establish recreational waysides and areas of scenic beauty adjoining the highways of the Commonwealth.
    2. The Commissioner of Highways may, whenever in his opinion it is in the best interest of the Commonwealth, accept from the United States, or any authorized agency thereof, a grant or grants of any recreational waysides established and constructed by the United States, or any such agency thereof, or a grant or grants of funds for landscaping and scenic enhancement of highways, and the Commissioner of Highways may, on behalf of the Commonwealth, enter into a contract or contracts with the United States, or any such agency thereof, to maintain and operate any such recreational waysides that may be so granted to the Commonwealth and may do all things necessary to receive and expend federal funds for landscaping and scenic enhancement.
    3. The Commissioner of Highways may, whenever it is in the best interest of the operation of the Interstate System or the primary or secondary state highway system, establish, construct, maintain, and operate appropriate recreational waysides and areas of scenic beauty adjoining such highways.
    4. The Commissioner of Highways may acquire by purchase, gift, or the power of eminent domain such land or interest in land as may be necessary to carry out the provisions of this section, provided that in exercising the power of eminent domain for areas of scenic beauty, such areas adjoin and lie within 100 feet of the right-of-way of the highway, and the procedure shall be, mutatis mutandis, as provided for the acquisition of land by the Commissioner of Highways in Article 1 (§ 33.2-1000 et seq.) of Chapter 10.
    5. The Board may establish regulations for the use of recreational waysides, including regulations relating to (i) the time, place, and manner of parking of vehicles; (ii) activities that may be conducted within such waysides; (iii) solicitation and selling within the waysides; and (iv) such other matters as may be necessary or expedient in the interest of the motoring public.The regulations when adopted by the Board shall be posted in a conspicuous place at each wayside, along with such other signs as the Commissioner of Highways deems necessary to advise the public.Any person violating any regulation adopted under this section is guilty of a misdemeanor punishable by a fine of not less than $5 nor more than $100 for each offense.
    6. Recreational waysides and areas of scenic beauty when acquired, established, maintained, and operated in accordance with this section shall be deemed to be a part of the Interstate System or primary or secondary state highway system but land acquired for areas of scenic beauty shall not be deemed a part of the right-of-way for the purpose of future acquisition of areas of scenic beauty under the provisions of subsections A through D.

    History. Code 1950, §§ 33-133, 33-133.1, 33-134; 1966, c. 470; 1968, c. 566; 1970, c. 322, §§ 33.1-217, 33.1-218, 33.1-219; 2014, c. 805.

    § 33.2-247. Wetlands mitigation banking.

    When authorization is required by federal or state law for any project affecting wetlands and such authorization is conditioned upon compensatory mitigation for adverse impacts to wetlands, the Commissioner of Highways is authorized to expend funds for the purchase of, or is authorized to use, credits from any wetlands mitigation bank, including any owned by the Department of Transportation, that has been approved and is operating in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of mitigation banks as long as (i) the bank is in the same fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or by the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, as the impacted site, or in an adjacent subbasin within the same river watershed as the impacted site, or it meets all the conditions found in clauses (a) through (d) and either clause (e) or (f); (ii) the bank is ecologically preferable to practicable on-site and off-site individual mitigation options, as defined by federal wetland regulations; and (iii) the banking instrument, if approved after July 1, 1996, has been approved by a process that included public review and comment. When the bank is not located in the same subbasin or adjacent subbasin within the same river watershed as the impacted site, the purchase or use of credits shall not be allowed unless the Commissioner of Highways demonstrates to the satisfaction of the agency requiring compensatory mitigation that (a) the impacts will occur as a result of a Department of Transportation linear project; (b) there is no practical same river watershed mitigation alternative; (c) the impacts are less than one acre in a single and complete project within a subbasin; (d) there is no significant harm to water quality or fish and wildlife resources within the river watershed of the impacted site; and either (e) impacts within the Chesapeake Bay watershed are mitigated within the Chesapeake Bay watershed as close as possible to the impacted site or (f) impacts within subbasins 02080108, 02080208, and 03010205, as defined by the National Watershed Boundary Dataset, are mitigated in-kind within those subbasins, as close as possible to the impacted site. After July 1, 2002, the provisions of clause (f) shall apply only to impacts within subdivisions of the listed subbasins where overlapping watersheds exist, as determined by the Department of Environmental Quality, provided the Department of Environmental Quality has made such a determination by that date. For the purposes of this subsection, the hydrologic unit boundaries of the National Watershed Boundary Dataset or other hydrologic unit system may be adjusted by the Department of Environmental Quality to reflect site-specific geographic or hydrologic information provided by the bank sponsor.

    For the purposes of this section, “river watershed” means the Potomac River Basin, Shenandoah River Basin, James River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins, Atlantic Ocean, York River Basin, and New River Basin.

    History. 1996, c. 736, § 33.1-223.2:1; 1999, c. 8; 2011, c. 253; 2014, cc. 332, 805.

    Editor’s note.

    Acts 2014, c. 332 amended former § 33.1-223.2:1, from which this section is derived. Pursuant to § 30-152, the 2014 amendment by c. 332 has been given effect in this section by inserting “or by the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument,” in clause (i) and adding the last sentence in the first paragraph.

    § 33.2-248. Expenditure of funds for interstate bridges and approaches.

    The Commissioner of Highways may expend from funds available for construction or maintenance of roads or highways, either alone or in cooperation with public road authorities of other states, such funds as he may deem necessary for the construction, maintenance, operation, and repair of interstate highway bridges, tunnels, and approaches forming connecting links between highways in the systems of state highways and public roads of other states.

    History. Code 1950, § 33-172; 1970, c. 322, § 33.1-248; 2014, c. 805.

    § 33.2-249. Maintenance and operation of bridges or tunnels on the city and state line.

    The governing bodies of cities and towns having populations greater than 3,500 and the Commissioner of Highways may enter into agreements, upon such terms and conditions as may be necessary, for the maintenance of public highway bridges or tunnels lying partly within and partly outside the incorporated limits of such cities and towns.

    The Commissioner of Highways may enter into agreements with other states and the District of Columbia, upon such terms and conditions as may be necessary, for the maintenance and operation, including the issuance of permits, of public highway bridges or tunnels lying partly within and partly outside the territorial limits of the Commonwealth.

    History. Code 1950, § 33-172.1; 1956, c. 28; 1964, c. 374; 1970, c. 322, § 33.1-249; 2014, c. 805.

    § 33.2-250. Improving certain private roads and certain town streets and roads.

    1. The Commissioner of Highways may, upon the request of the governing body of any county and at the expense of the owner of the land, improve private roads giving direct access from the home or other central buildings on the property along the shortest practical route to the nearest public highway, provided that:
      1. The Commissioner of Highways shall in no case undertake any such work until certification is made by the governing body of the county that the property owner cannot secure the services of a private contractor to perform the work nor then until the owner has deposited with him a certified check in the amount estimated by the Commissioner of Highways as the cost of the work;
      2. Not more than $1,000 shall be expended on any one such private project in any one year; and
      3. No work of ordinary maintenance shall be done on any such private road under the provisions of this section.
    2. In addition, the Commissioner of Highways may, upon the request of the council of any town having a population of less than 1,500 and at the expense of such town, improve and maintain any streets or roads in such town and not in the primary state highway system. As to streets and roads in such town, no certification by the board of supervisors or deposit shall be necessary.
    3. Any work done by the Commissioner of Highways pursuant to the provisions of this section shall only be done with the equipment and employees of the Department.

    History. Code 1950, § 33-118; 1970, c. 322, § 33.1-201; 2013, cc. 585, 646; 2014, c. 805.

    § 33.2-251. Installation and maintenance of “children at play” signs in counties and towns.

    The governing body of any county or town may enter into an agreement with the Commissioner of Highways allowing the county or town to install and maintain, at locations specified in such agreement, signs alerting motorists that children may be at play nearby. The cost of the signs and their installation shall be paid by the county or town.

    The provisions of this section shall not apply to any county that has withdrawn its roads from the secondary state highway system under the provisions of § 11 of Chapter 415 of the Acts of Assembly of 1932 and has not elected to return.

    History. 1997, c. 167, § 33.1-210.2; 2006, c. 548; 2012, c. 179; 2014, c. 805.

    § 33.2-252. Tramways and railways along or across public highways; appeals.

    1. Whenever any person, firm, or chartered company engaged in mining, manufacturing, or lumber getting has acquired the right-of-way for a tramway or railway, except across or upon a public highway, and desires to cross such highway or some part thereof and if such person, firm, or chartered company cannot agree with the Commissioner of Highways, or governing body of a county if the road is a county road in a county where the roads are not within the secondary state highway system, as to the terms and conditions of such crossing, the circuit court of the county in which such highway may be may prescribe such regulations for the crossing of such highway as will protect the public, and when such regulations have been prescribed, such tramway or railway may be constructed and maintained or if already constructed may be maintained in accordance with such regulations as may be made on the application of the owner of such tramway or railway or on the motion of the attorney for the Commonwealth after notice to such owner.
    2. The Commissioner of Highways or governing body or the applicant or owner of the tramway or railway may appeal from the order of the circuit court in the manner prescribed for appeals in controversies concerning roads.
    3. Nothing contained in this section shall be construed as giving the right to condemn private property for such tramway or railway, nor shall the rights of any tramway or railway lawfully acquired be affected.

    History. Code 1950, §§ 33-126, 33-127, 33-128; 1970, c. 322, §§ 33.1-211, 33.1-212, 33.1-213; 2014, c. 805.

    § 33.2-253. Highway safety corridor program.

    The Commissioner of Highways shall establish a highway safety corridor program under which a portion of highways in the primary state highway system and Interstate System may be designated by the Commissioner of Highways as highway safety corridors to address highway safety problems through law enforcement, education, and safety enhancements. In consultation with the Department of Motor Vehicles and the Superintendent of State Police, the Commissioner of Highways shall establish criteria for the designation and evaluation of highway safety corridors, including a review of crash data, accident reports, type and volume of vehicle traffic, and engineering and traffic studies. The Commissioner of Highways shall hold a public hearing prior to the adoption of the criteria to be used for designating a highway safety corridor. The Commissioner of Highways shall hold a minimum of one public hearing before designating any specific highway corridor as a highway safety corridor. The public hearing or hearings for a specific corridor shall be held at least 30 days prior to the designation at a location as close to the proposed corridor as practical.

    The Department of Transportation shall erect signs that designate highway safety corridors and the penalties for violations committed within the designated corridors.

    History. 2003, c. 877, § 33.1-223.2:8; 2014, c. 805.

    Cross references.

    As to fines for violations committed within the highway safety corridor, and report on the benefits derived from the designation of such highway safety corridors, see § 46.2-947.

    Editor’s note.

    Former § 33.1-223.2:8, from which this section was derived, was enacted as § 33.1-233.2:7 by Acts 2003, c. 877, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-254. Erection and maintenance of newspaper route boxes.

    The publishers of all newspapers having a circulation in rural sections of the Commonwealth may erect and maintain suitable newspaper route boxes along and on the rights-of-way of the public highways throughout such rural sections, in which to deposit newspapers for their subscribers. The short name of the newspaper to be deposited in each such box, but nothing more, may be plainly printed thereon. All such boxes shall be located so they do not interfere with or endanger public travel on highways. All such locations shall meet with the approval of the Commissioner of Highways.

    History. Code 1950, § 33-122; 1970, c. 322, § 33.1-206; 1979, c. 427; 2014, c. 805.

    § 33.2-255. Sale or lease of properties acquired for highway construction.

    To the extent not otherwise prohibited by law, the Commissioner of Highways may sell or otherwise dispose of any improvements on lands acquired for highway construction projects or lease such land and improvements until such time as the land is needed for immediate highway construction purposes. Any residue parcels of lands so acquired that are found to be unnecessary for highway purposes may be sold or otherwise disposed of by the Commissioner of Highways.

    History. Code 1950, § 33-75.8; 1964, c. 263; 1970, c. 322, § 33.1-140; 2014, c. 805.

    Article 4. Department of Transportation.

    § 33.2-256. Department of Transportation established.

    1. There is hereby created a Department of Transportation within the executive branch, which shall be under the supervision and management of the Commissioner of Highways and responsible to the Secretary of Transportation.
    2. The core mission of the Department shall be as follows:
      1. To maintain and operate the system of state highways;
      2. To develop, oversee, and manage highway projects included in the Six-Year Improvement Program pursuant to § 33.2-214 based on guidance from the Commonwealth Transportation Board or funded pursuant to § 33.2-1524 ; and
      3. To ensure the safety of the traveling public on the system of state highways.Nothing in this subsection shall be construed to limit or restrict the powers otherwise granted to the Department or Commissioner.

    History. 2014, c. 805; 2017, cc. 166, 273.

    Editor’s note.

    Acts 2016, c. 741, cl. 1 provides “§ 1. The Department of Transportation and the Fredericksburg Area Metropolitan Planning Organization shall conduct a joint evaluation of traffic congestion occurring in the George Washington Regional Commission region on Interstate 95 between mile marker 145 in Stafford County and mile marker 125 in Spotsylvania County and an evaluation of alternative solutions to such traffic congestion, which may include but not be limited to extending the HOT lanes south on Interstate 95. The results of such evaluation shall be submitted to the General Assembly as an executive summary. To the extent that the Department of Transportation is in possession of or develops information or data that would assist or expedite the Fredericksburg Area Metropolitan Planning Organization’s evaluation and development of an improvement program to address the congestion and needs of the Interstate 95 corridor in the area, the Department of Transportation shall make such information available to the Fredericksburg Area Metropolitan Planning Organization upon request, provided that such information does not constitute confidential or proprietary information of a private entity.”

    Acts 2016, c. 741, cl. 2 provides “That the executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports no later than the first day of the 2019 Regular Session of the General Assembly and shall be posted on the General Assembly’s website.”

    Acts 2018, c. 366, cl. 1 provides: “§ 1. The Department of Transportation shall place and maintain signs along certain highways reflecting the 2016 designation by the General Assembly of Virginia as a Purple Heart State, reflecting Virginia’s admiration and utmost gratitude for all the veterans and active duty service members who have paid the high price of freedom by leaving their families and communities and placing themselves in harm’s way and who have selflessly served their country.”

    Acts 2018, c. 505, cl. 1 provides: “§ 1. That the Department of Transportation (Department) shall develop and submit for approval to the Federal Highway Administration an expedited land use permit process by which public or private utility companies that offer high-speed Internet services may apply to use any right-of-way maintained by the Department. Such process shall be designed to apply only when the proposed use of the right-of-way does not make substantial changes to such right-of-way and does not interfere with the safety or ongoing maintenance of the right-of-way for transportation purposes.”

    Acts 2018, c. 505, cl. 2 provides: “That the Department of Transportation shall complete the requirements of the first enactment of this act by November 30, 2018, and shall submit to the Governor and the General Assembly an executive summary and a report on the expedited land use permit process and, if possible, the response from the Federal Highway Administration for publication as a House or Senate document. The executive summary and report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports no later than the first day of the 2019 Regular Session of the General Assembly and shall be posted on the General Assembly’s website.”

    Acts 2018, cc. 553 and 554, cl. 1 provides: “§ 1. That the Department of Transportation (the Department) shall convene a work group to identify the implications of the Commonwealth’s participation in a federal data collection pilot program or project involving six-axle tractor truck semitrailer combinations weighing up to 91,000 pounds and utilizing interstate highways. The Department shall consult relevant stakeholders and shall review (i) the fee structure for qualifying tractor trucks, (ii) the axle spacing for qualifying tractor trucks, (iii) issues related to reasonable access from loading facilities onto a primary or secondary highway and interstate highways, (iv) the sufficiency of existing data in determining if certain routes and bridges should be excluded from the federal pilot program or project, and (v) any other issues as deemed relevant or appropriate by the Department. The Department shall complete its meetings by November 30, 2018, and shall submit to the General Assembly and the Governor an executive summary and a report of its findings and recommendations. The executive summary and report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports no later than the first day of the 2019 Regular Session of the General Assembly and shall be posted on the General Assembly’s website.”

    Acts 2021, Sp. Sess. I, c. 144, cl. 1 provides: “§ 1. The Department of Transportation shall work with the governing body of Patrick County and community groups interested in constructing a replica of the Bob White Covered Bridge for tourism purposes to approve a construction plan for a replica of the Bob White Covered Bridge open for pedestrian, non—motor vehicle traffic, provided that the replica bridge is designed in accordance with the most recent edition of the American Association of State Highway and Transportation Officials (AASHTO) Load and Resistance Factor Design (LRFD) Guide Specifications for the Design of Pedestrian Bridges and constructed in accordance with the most recent edition of the AASHTO LRFD Bridge Construction Specifications.”

    The 2017 amendments.

    The 2017 amendments by cc. 166 and 273 are identical, and inserted the subsection A designation and added subsection B.

    § 33.2-257. Repealed by Acts 2019, c. 749, cl. 2.

    Cross references.

    For current provisions requiring analysis of transportation projects in the Northern Virginia Transportation District , see subdivision 2 of § 33.2-2500 .

    Editor’s note.

    Former § 33.2-257 , pertaining to responsibilities of the Department of Transportation for analysis of transportation projects in the Northern Virginia Transportation District, derived from 2012, cc. 768, 825, § 33.1-13.03:1; 2014, c. 805.

    § 33.2-257.1. Notice to be provided to property owners of pending transportation projects.

    At least 30 days prior to any public hearing regarding a transportation project valued in excess of $100 million, the Department of Transportation shall send notification of the date, time, and place of the public hearing, by regular mail, to all owners of property within and adjacent to such project study corridor.

    History. 2014, c. 733.

    Editor’s note.

    Acts 2014, c. 733 enacted § 33.1-223.2:30, from which this section is derived. Pursuant to § 30-152, Acts 2014, c. 733 has been given effect as this section.

    CASE NOTES

    Lack of standing. —

    Homeowner lacked standing to appeal the Virginia Department of Transportation’s case decision regarding a natural gas utility’s land use permit application because the homeowner’s participation, as a member of a citizens’ association, in public comments on the permit application did not establish that the homeowner was a party to the administrative agency’s case decision. Peed v. Va. DOT, 72 Va. App. 686, 852 S.E.2d 496, 2021 Va. App. LEXIS 7 (2021).

    § 33.2-258. Environmental permits for highway projects; timely review.

    Notwithstanding any other provision of state law or regulation, any state agency, board, or commission that issues a permit required for a highway construction project pursuant to Title 10.1, 28.2, 29.1, or 62.1 shall within 15 days of receipt of an individual permit application review the application for completeness and either accept the application or request additional specific information from the Department. Unless a shorter period is provided by law, regulation, or agreement, the state agency, board, or commission shall within 120 days of receipt of a complete application issue the permit, issue the permit with conditions, deny the permit, or decide whether a public meeting or hearing is required by law. If a public meeting or hearing is held, it shall be held within 45 days of the decision to conduct such a proceeding, and a final decision as to the permit shall be made within 90 days of completion of the public meeting or hearing. For coverage under general permits issued pursuant to Title 10.1, 28.2, 29.1, or 62.1, the state agency, board, or commission that issues such permits shall within 10 business days of receipt of an application from the Department for a highway construction project review the application for completeness and either accept the application or request additional specific information from the Department. Coverage under the general permit shall be approved, approved with conditions, or denied within 30 business days of receipt of a complete application.

    History. 2005, c. 781, § 33.1-19.1; 2007, c. 896; 2014, c. 805.

    § 33.2-259. Maintain drainage easements.

    Whenever in connection with or as a precondition to the construction or reconstruction of any highway the Department has acquired any permanent drainage easement, the Department shall, until such time as such easement has been terminated, perform repairs required to protect the roadway and to ensure the proper function of the easement within the right-of-way and within the boundaries of such easement.

    History. 2000, c. 312, § 33.1-223.2:4; 2014, c. 805.

    § 33.2-260. Specifications in purchasing lubricating motor oil.

    1. Standard specifications adopted for lubricating motor oil for competitive bidding contracts to be let by the Department shall be prescribed so as to include re-refined or recycled lubricating motor oil. Specifications adopted for circumstances or equipment that require specialized treatment or products may be excluded.
    2. The Department shall compile and publish a list of business entities that commercially distribute re-refined or recycled lubricating motor oil that complies with the standard specifications adopted by the Department pursuant to the provisions of this section. The Department shall make the list available to local governing bodies upon request.

    History. 1982, c. 203, § 33.1-189.1; 2014, c. 805.

    § 33.2-261. Value engineering required in certain projects.

    For the purposes of this section, “value engineering” means a systematic process of review and analysis of an engineering project by a team of persons not originally involved in the project. Such team may offer suggestions that would improve project quality and reduce total project cost, ranging from a combination or elimination of inefficient or expensive parts or steps in the original proposal to total redesign of the project using different technologies, materials, or methods.

    The Department shall employ value engineering in conjunction with any project that has an estimated construction cost of more than $15 million on any highway system using criteria established by the Department.

    After a review, the Commissioner of Highways may waive the requirements of this section for any project for compelling reasons. Any such waiver shall be in writing, state the reasons for the waiver, and apply only to a single project.

    The provisions of this section shall not apply to projects that are designed (i) utilizing a design-build contract pursuant to § 33.2-209 or 33.2-269 or (ii) pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.).

    History. 1990, c. 160, § 33.1-190.1; 2001, cc. 90, 104; 2014, c. 805; 2018, cc. 290, 423.

    The 2018 amendments.

    The 2018 amendments by cc. 290 and 423 are identical, and rewrote the former second and third sentences as the first paragraph; in the second paragraph, inserted “that has an estimated construction cost of more than $15 million” and deleted “including all projects costing more than $5 million” at the end; and added and the last paragraph.

    § 33.2-262. Removal of snow from driveways of volunteer fire departments and emergency medical services agencies.

    On the roads under the jurisdiction of the Department, the Department shall remove snow from the driveways and entrances of volunteer fire departments and volunteer emergency medical services agencies when the chief of any individual volunteer fire department or volunteer emergency medical services agency makes a written request for such snow removal service, provided that such service shall only be performed when such service can be performed during the normal course of snow removal activities of the Department without interfering with, or otherwise inconveniencing, such snow removal activities. Such service shall not extend to any parking lots adjacent to such driveways and entranceways not normally used by the volunteer fire department or volunteer emergency medical services agency as their direct driveway or entrance.

    History. 1976, c. 221, § 33.1-200.1; 2014, c. 805; 2015, cc. 502, 503.

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “emergency medical services agencies” for “rescue squads” or variants throughout the section; deleted “the head of any individual” preceding “volunteer” and substituted “emergency medical services agencies” for “rescue squad vehicles” at the end of the paragraph.

    § 33.2-263. School bus stop signs or other indicators.

    The Department shall allow any local school board to install signs or other devices to indicate school bus stops, provided the installation is approved by the Department prior to installation. No local school board shall be required to install signs at all school bus stops. Maintenance, repair, and replacement of school bus stop signs shall be the responsibility of the local school board. The Department, in conformance with the Department’s current policies for emergency snow removal operations, shall use its best efforts to ensure that signed school bus stop areas shall not be obstructed by snow removal operations. Installation of school bus stop signs shall not designate the area as school property.

    History. 2008, c. 291, § 33.1-223.2:18; 2014, c. 805.

    § 33.2-264. Livestock on right-of-way of the systems of state highways.

    No person, firm, or corporation shall pasture or graze, or cause to be pastured or grazed, or otherwise permit to be on any right-of-way of any highway in the systems of state highways, except as otherwise provided in this section, any livestock, unless such animal or animals be securely tied or held by chain or rope so as to prevent such animal from getting on the traveled portion of the highway, provided that this section shall not apply when such livestock are being driven along such highway while under the control of a responsible drover or drovers.

    Nothing in this section shall prevent the owners of abutting parcels of land from grazing livestock unsecured by chain or rope on secondary roads that (i) have been taken into the system as gated roads and (ii) carry fewer than 50 vehicles per day.

    On gated roads carrying 50 or more vehicles per day, the Department shall, upon the request of the local governing body and upon the recordation of a deed of gift or donation by such landowner of not less than a 40-foot right-of-way, reimburse abutting landowners a sum equal to $1 per foot of fencing that must be installed to keep cattle from entering the right-of-way from such abutting land. Where such fencing separates pasture land from a water source used by the owner of such pasture land to water his livestock, the Department shall construct or have constructed a means of access by which stock may reach the water source from the pasture land. Moneys for such fencing and construction of access to water shall be taken from highway construction funds. For purposes of this section, a “gated” road is a road on which, prior to July 1, 1986, abutting landowners have maintained a gate or cattle guard.

    Any person, firm, or corporation who violates any of the provisions of this article shall be fined not less than $10 nor more than $50 for such offense.

    Nothing in this section shall be construed to transfer the liability for injuries or property damage caused by such grazing livestock.

    History. Code 1950, § 33-125; 1956, c. 221; 1970, c. 322, § 33.1-210; 1986, c. 367; 2014, c. 805.

    § 33.2-265. Comprehensive roadside management program.

    The Department shall promulgate regulations for a comprehensive roadside management program. Such program shall include opportunities for participation by individuals, communities, and local governments and shall address items, including safety, landscape materials, services, funding, recognition, and appropriate signing.

    History. 2004, c. 679, § 33.1-223.2:9; 2014, c. 805.

    § 33.2-266. Intermittent closing of highways subject to flooding; permits; notice.

    1. Upon application of the board of directors of any soil and water conservation district and of the board of supervisors of the county wherein the highway is located, the Department is authorized to permit the intermittent closing of any highway located within the boundaries of such district and county whenever in its judgment it is necessary to do so and when the highway will be intermittently subject to inundation by floodwaters retained by an approved watershed retention structure. All costs associated with such closing shall be borne by the board of supervisors of the county, including the costs of furnishing, erecting, and removing the necessary signs, barricades, signals, and lights to safeguard and direct traffic.
    2. Before any permit may be issued for the temporary inundation and closing of such a highway, an application for such permit shall be made to the Department by the board of directors of the soil and water conservation district and the board of supervisors of the county wherein the highway is located. The application shall specify the highway involved and shall request that a permit be granted to the county to allow the intermittent closing of the highway.
    3. Before making such application, the board of supervisors of the county wherein such highway is located shall give notice of the proposed action by publication once each week for two consecutive weeks in a newspaper of general circulation in the county, and such notice shall contain a description of the places of beginning and the places of ending of such intermittent closing. In addition to such publication, the board of supervisors of such county shall give notice to all public utilities having facilities located within the rights-of-way of any highway being closed by mailing a copy of such notice to the office of each such public utility located within the county, or if no office is located within the county, then to the office of such utility located nearest to the county. Furthermore, no such application shall be accepted by the Department that does not certify compliance by the applicants with the requirements of publication and notice in the manner prescribed in this section. All costs associated with the application procedure and notice to the public and to public utilities shall be borne by the board of supervisors of the county.
    4. Not sooner than 30 days after the last publication and not sooner than 30 days after the mailing of such notice, the Department may issue the permit with respect to such highway. Nothing herein contained shall require the Department to issue such a permit when the Department, in its sole discretion, does not consider such intermittent closing of highways to be in the best interest of fulfilling the Department’s duties to the traveling public.

    History. 1976, c. 172, § 33.1-223.2; 2014, c. 805.

    § 33.2-267. Family restrooms.

    The Department shall provide family restrooms at all rest areas along Interstate System highways in the Commonwealth. All such family restrooms shall be constructed in accordance with federal law. The provisions of this section shall apply only to rest stops constructed on or after July 1, 2003.

    History. 2003, c. 279, § 33.1-223.2:7; 2014, c. 805.

    § 33.2-267.1. Human trafficking hotline; posted notice required.

    The Department shall post notice at all rest areas along Interstate System highways in the Commonwealth of the existence of a human trafficking hotline to alert possible witnesses or victims of human trafficking to the availability of a means to report crimes or gain assistance. The notice required by this section shall (i) be posted in a place readily visible and accessible to the public and (ii) meet the requirements specified in subsection C of § 40.1-11.3 .

    History. 2018, c. 571.

    § 33.2-268. Contractor performance bonds for locally administered transportation improvement projects.

    Whenever any locality undertakes administration of a transportation improvement project and obtains, in connection therewith, contractor performance bonds that include the Department as a dual obligee, the amount of such bonds shall be no greater than would have been required had the Department not been included as a dual obligee. The surety’s obligation to the Department shall be no greater than its obligation to the locality administering the project, and the amount of the bond is the limit of the surety’s obligation to either or both obligees.

    History. 2009, c. 395, § 33.1-223.2:22; 2014, c. 805.

    § 33.2-269. Localities may use design-build contracts.

    Localities may award contracts for the construction of transportation projects on a design-build basis. These contracts may be awarded after a written determination is made by the chief executive officer of the locality that delivery of the projects must be expedited and that it is not in the public interest to comply with the design and construction contracting procedures normally followed. These contracts shall be of such size and scope to encourage maximum competition and participation by qualified contractors. Such determination shall be retained for public inspection in the official records of the locality and shall include a description of the nature and scope of the project and the reasons for the determination that awarding a design-build contract will best serve the public interest. If state or federal transportation funds are used for the contract, then the locality shall comply with the provisions of §§ 33.2-209 and 33.2-214 and shall request from the Department the authority to administer the project in accordance with pertinent state or federal requirements.

    History. 2006, c. 419, § 33.1-223.2:16; 2014, c. 805.

    § 33.2-270. Provide for training of certain local employees.

    The Department shall provide for the training and certification of local governments in order that such local governments are capable of administering local maintenance and construction projects that involve the secondary or urban highway system. Such training and certification shall enable such local governments to carry out locally administered projects in compliance with federal and state law and regulations with minimal oversight by Department personnel.

    History. 2012, c. 470, § 33.1-223.2:27; 2014, c. 805.

    Editor’s note.

    Former § 33.1-223.2:27, from which this section was derived, was enacted as § 33.1-223.2:26 by Acts 2012, c. 470, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-271. Maintain property acquired for construction of transportation projects.

    Subject to requirements of federal law or regulations and prior to the initiation of project construction, the Department shall mow the grass and remove weeds and debris on property acquired for the construction of a transportation project by the Department. Such activities shall be performed in accordance with the same schedules used for these activities on other rights-of-way maintained by the Department in the same locality. At the written request of the local governing body or a locality, the Department shall provide additional services on the property acquired for the construction of a transportation project, including removal of abandoned vehicles. Such additional services shall be funded from the construction allocations to the project.

    History. 2004, c. 682, § 33.1-223.2:10; 2014, c. 805.

    Editor’s note.

    Former § 33.1-223.2:10, from which this section was derived, was enacted as § 33.1-223.2:9 by Acts 2004, c. 682, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-272. Location of landfill gas pipelines in highway right-of-way; Department of Transportation to provide notice to counties.

    Whenever the Department grants its permission for the construction, installation, location, or placement of a landfill gas pipeline within any highway right-of-way, notice shall be provided by the Department to every county through which such pipeline or any portion thereof will pass.

    For the purposes of this section, “landfill gas pipeline” means those facilities exempted from the definition of public utility in subdivisions (b)(6), (7), and (8) of § 56-265.1.

    History. 2004, c. 808, § 33.1-223.2:11; 2014, c. 805.

    Editor’s note.

    Former § 33.1-223.2:11, from which this section was derived, was enacted as § 33.1-223.2:9 by Acts 2004, c. 808, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-272.1. Interstate pipelines; Department of Transportation oversight.

    The Department may enter into agreements with any entity constructing interstate pipelines setting forth a reasonable procedure to identify and remedy damage caused by construction of such pipeline to public highways of the Commonwealth.

    History. 2017, c. 532.

    § 33.2-273. Use of steel plates in connection with highway repairs.

    Any person using steel plates in connection with a temporary or permanent repair to the roadway of any highway shall follow the standards of the Department regarding warnings thereof and the marking of such plates. The provisions of this section shall not apply to any portion of a roadway that is closed to vehicular traffic.

    History. 2005, c. 537, § 33.1-223.2:14; 2014, c. 805.

    § 33.2-274. Application and installation of traffic control measures.

    Nothing in this title shall be construed to prevent the application and installation of traffic control measures to reduce the negative effects of traffic through residential areas on any component of the secondary highway system that meets the definition of “residence district” in § 46.2-100 , even if such component also provides access to a “business district” as defined in the same section. Installation of traffic control measures on any state-maintained highway shall be approved by the Department prior to installation.

    Furthermore, nothing in this title shall be construed to prevent the acceptance by the Department of private financing for the application and installation of traffic control measures if and when such measures meet the Department’s standards.

    History. 2008, c. 468, § 33.1-223.2:19; 2008, c. 471, § 33.1-223.2:20; 2014, c. 805.

    Editor’s note.

    Former §§ 33.1-223.2:19, 33.1-223.2:20, from which this section was derived, were each enacted as § 33.1-223.2:18 by Acts 2008, cc. 468 and 471, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-274.1. Roadside safety devices to be equipped with identification numbers.

    The Department shall require that Type I (Re-Directive) Impact Attenuators, Terminals (GR-7, GR-9), Truck Mounted Attenuators, and Trailer Mounted Attenuators from the Department’s approved products list installed on or after July 1, 2016, in connection with any highway construction or maintenance project funded in whole or in part with revenues of the Commonwealth shall include the manufacturer’s identification number specific to the device and stamped on the device itself.

    History. 2015, c. 481.

    § 33.2-275. Periodic quantitative rating of certain highways.

    The Department shall determine a quantitative rating on the pavement condition and ride quality of every highway in the primary and secondary state highway systems at least once every five years, using metrics generally accepted in the United States for this purpose. The Department shall post these ratings on its website, organized by transportation district, updated at least quarterly, with interpretive guidance, identifying each (i) primary and secondary highway or segment thereof that has been rated, the pavement condition and ride quality rating given, and the date it was last rated and (ii) primary or secondary highway or segment thereof that has not been rated and the approximate date, if available, that the rating is scheduled to be made.

    History. 2013, c. 290, § 33.1-223.2:29; 2014, c. 805.

    § 33.2-275.1. Primary evacuation routes; public information.

    The Department of Transportation (the Department), in consultation with the Department of Emergency Management, shall develop and maintain a map of primary evacuation routes in the Commonwealth. Such map shall be made available on Department’s public website.

    The Department shall review the quality of the transportation infrastructure along such routes and submit a report on the findings of the Department and any recommended improvements at least once every five years. Such report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and shall be posted on the General Assembly’s website, and the first of such reports shall be submitted no later than the first day of the 2021 Regular Session of the General Assembly.

    History. 2020, c. 704.

    § 33.2-276. Noise abatement practices and technologies.

    1. Whenever the Board or the Department plan for or undertake any highway construction or improvement project and such project includes or may include the requirement for the mitigation of traffic noise impacts, first consideration should be given to the use of noise reducing design and low noise pavement materials and techniques in lieu of construction of noise walls or sound barriers. Vegetative screening, such as the planting of appropriate conifers, in such a design would be utilized to act as a visual screen if visual screening is required.
    2. The Department shall expedite the development of quiet pavement technology such that applicable contract solicitations for paving shall include specifications for quiet pavement technology and other sound mitigation alternatives in any case in which sound mitigation is a consideration. To that end, the Department shall construct demonstration projects sufficient in number and scope to assess applicable technologies. The assessment shall include evaluation of the functionality and public safety of these technologies in Virginia’s climate and shall be evaluated over at least two full winters. The Department shall provide an initial interim report to the Governor and the General Assembly by June 30, 2012, a second interim report by June 30, 2013, and a final report by June 30, 2015. The report shall include results of demonstration projects in Virginia, results of the use of quiet pavement in other states, a plan for routine implementation of quiet pavement, and any safety, cost, or performance issues that have been identified by the demonstration projects.
    3. The governing body of any locality, at its own expense, may evaluate noise from highways it may designate for analysis. Such evaluation shall be accepted and relied upon by the Department if such evaluation is prepared in accordance with and complies with applicable federal law, regulations, and requirements, as well as guidelines and policies issued by the Board, relating to noise abatement and evaluation. This provision shall not apply to projects for which the Department is required to perform a noise analysis.

    History. 2009, c. 120, § 33.1-223.2:21; 2011, cc. 476, 790; 2012, c. 171; 2013, c. 120; 2014, c. 805.

    § 33.2-277. Sale of materials to, and use of equipment by, localities and school boards.

    The Department may lend or rent equipment and sell materials and supplies used in the building or repairing of highways and streets to any locality or school board, upon such terms and conditions as may be agreed upon by the Department and such locality or school board, provided that the governing body of such locality or school board submits to the Department a certificate setting forth that the material or equipment cannot be furnished from private sources within a reasonable time. The requirement of such a certificate shall not apply to towns with a population of less than 3,500 inhabitants or to the purchase of paint for traffic marking purposes by any locality or school board.

    History. Code 1950, § 33-111; 1952, c. 337; 1954, c. 349; 1956, c. 539; 1970, c. 322, § 33.1-195; 2013, cc. 585, 646; 2014, c. 805.

    § 33.2-278. Facilities for persons desiring to fish from bridges.

    The Department may, upon the request in writing of any department or agency of the Commonwealth, construct and maintain on or in connection with any bridges that now constitute a part of any system of state highways platforms, walkways, or other facilities as may be necessary or proper for the safety and convenience of persons who desire to fish therefrom. The cost shall be paid out of funds furnished by the department or agency making the request from its own funds or funds furnished to such department or agency by gift from private sources. The Department shall not be held responsible for damage caused by the construction or use of such facilities.

    History. Code 1950, § 33-123; 1970, c. 322, § 33.1-207; 2013, cc. 585, 646; 2014, c. 805.

    § 33.2-279. Use of streams and lowlands obstructed by newly constructed highways as fishponds or water storage areas.

    Whenever any highway is being constructed and the highway is to pass over any stream or lowland the obstruction of which is necessary to such construction or if the present highway construction can be utilized to provide a suitable dam for a fishpond or water storage area, then upon application of the adjacent property owner requesting that it be so used, the Department may permit such use, provided that such dam shall be subject to the provisions of §§ 33.2-409 through 33.2-414 and any additional cost incurred shall be borne by the requesting property owner.

    History. Code 1950, § 33-123.1; 1952, c. 499; 1970, c. 322, § 33.1-208; 2013, cc. 585, 646; 2014, c. 805.

    § 33.2-280. Treatment of highway surfaces for dust control.

    The Department may treat highway surfaces for stabilization and dust control in any town in the Commonwealth upon request of the governing body of such town and may treat highway surfaces for stabilization and dust control in any county of the Commonwealth, the secondary highways within which are not a part of the secondary state highway system, upon request of the governing body thereof, provided that such county or town governing body shall pay to the Department the cost of such treatment. This section applies to any highway that is a part of the primary or secondary state highway system.

    History. Code 1950, § 33-112; 1970, c. 322, § 33.1-196; 2013, cc. 585, 646; 2014, c. 805.

    § 33.2-280.1. Charging electronic toll collection device fees.

    The Department shall not, as a result of inactivity on the part of the holder of any electronic toll collection device for a time period of less than one year, (i) charge maintenance fees for electronic toll collection devices or (ii) require users to exchange their electronic toll collection device for a different type.

    History. 2018, c. 629.

    Editor’s note.

    Acts 2018, c. 629, cl. 2 provides: “That the provisions of this act apply to all electronic toll transponders, regardless of the date they were issued to an account holder.”

    CASE NOTES

    Lack of standing. —

    Homeowner lacked standing to appeal the Virginia Department of Transportation’s case decision regarding a natural gas utility’s land use permit application because the homeowner’s participation, as a member of a citizens’ association, in public comments on the permit application did not establish that the homeowner was a party to the administrative agency’s case decision. Peed v. Va. DOT, 72 Va. App. 686, 852 S.E.2d 496, 2021 Va. App. LEXIS 7 (2021).

    Article 5. Department of Rail and Public Transportation.

    § 33.2-281. Policy.

    The General Assembly finds that there is a compelling public need to provide a balanced multimodal transportation system that enhances the service capabilities of passenger and freight rail, public transportation, highways, aviation, and ports and that it is in the public interest to ensure that passenger and freight rail and public transportation are full participants in that multimodal system to reduce energy consumption, congestion, and air pollution; to enhance the environment; to support economic development; and to ensure the efficient movement of goods and people. Accordingly, the General Assembly finds that this chapter is necessary for the public convenience, safety, and welfare.

    History. 1992, c. 167, § 33.1-391.1; 2014, c. 805.

    § 33.2-282. Department of Rail and Public Transportation created; appointment of Director.

    There is hereby created a Department of Rail and Public Transportation reporting to the Secretary of Transportation and subject to the policy oversight of the Commonwealth Transportation Board. The Department of Rail and Public Transportation shall be headed by a Director who shall be appointed by and serve at the pleasure of the Governor. The Director of the Department of Rail and Public Transportation shall serve as a nonvoting ex officio member of the Board and any committee of the Board dealing with passenger and freight rail, transportation demand management, ridesharing, and public transportation issues.

    History. 1992, c. 167, § 33.1-391.2 ; 2002, c. 355; 2014, c. 805.

    § 33.2-283. Powers and duties of the Director of the Department of Rail and Public Transportation.

    Except such powers as are conferred by law upon the Board, or such services as are performed by the Department of Transportation pursuant to law, the Director of the Department of Rail and Public Transportation shall have the power to do all acts necessary or convenient for establishing, maintaining, improving, and promoting public transportation, transportation demand management, ridesharing, and passenger and freight rail transportation in the Commonwealth and to procure architectural and engineering services for rail and public transportation projects as specified in § 2.2-4303.1 .

    History. 1992, c. 167, § 33.1-391.3; 2002, c. 355; 2009, c. 564; 2013, c. 583; 2014, c. 805; 2015, cc. 760, 776.

    Editor’s note.

    Acts 2015, cc. 760 and 776, cl. 3 provides: “That the provisions of this act shall not apply to any solicitation issued or contract awarded before July 1, 2015, except that the provisions of subsection B of § 2.2-4303.2 , as added by this act, shall apply to any renewal of a job order contract.”

    Acts 2019, c. 553 provides: “§ 1. The Department of Rail and Public Transportation (Department), in conjunction with all relevant stakeholders, shall evaluate the placement and maintenance of highway signs to (i) indicate the presence and direction of nearby Amtrak or intercity passenger rail stations and (ii) promote the use of such services and shall evaluate the cost and potential funding sources for such signs. The Department shall consult relevant stakeholders to create an inventory of existing Amtrak highway signs and review Amtrak signage in other states, including the ‘by train’ signs in North Carolina. The Department shall report its findings to the Secretary of Transportation and the Chairmen of the House and Senate Committees on Transportation by December 1, 2019.”

    The 2015 amendments.

    The 2015 amendments by cc. 760 and 776 are identical, and substituted “2.2-4303.1” for “2.2-4302.2” at the end of the paragraph.

    OPINIONS OF THE ATTORNEY GENERAL

    Authority. —

    Although the issue has not been conclusively resolved, under the only available precedent, the Governor was authorized to divest the Commonwealth of its interest in the Dulles Toll Road as part of the overall project to extend Metrorail. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 11-004, 2012 Va. AG LEXIS 20 (5/25/12) (decided under prior law).

    § 33.2-284. General powers of the Department of Rail and Public Transportation.

    The Department of Rail and Public Transportation has the following general powers:

    1. To accept grants from the United States government and agencies and instrumentalities thereof and any other source. To these ends, the Department of Rail and Public Transportation has the power to comply with such conditions and execute such agreements as may be necessary, convenient or desirable;
    2. To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this chapter, including contracts with the United States government, other states, agencies and governmental subdivisions of Virginia, and other appropriate public and private entities;
    3. To assist other appropriate entities, public or private, in the implementation and improvement of passenger and freight rail, transportation demand management, ridesharing, and public transportation services and the retention of rail corridors for public purposes;
    4. To represent and promote the Commonwealth’s interests in passenger and freight rail, transportation demand management, ridesharing, and public transportation; and
    5. To acquire and hold title to the land necessary to construct railway lines in order to reduce traffic congestion on highways and shift traffic to rail transportation and acquire by any means whatsoever, lease, improve, and construct railway lines, passenger and freight rail, transportation demand management, ridesharing, and public transportation facilities, and passenger and freight rail, transportation demand management, ridesharing, and public transportation equipment determined to be for the common good of the Commonwealth or a region of the Commonwealth and assist other appropriate entities in the implementation and improvement of passenger and freight rail, transportation demand management, ridesharing, and public transportation services and the retention of rail corridors for public purposes.

    History. 1992, c. 167, § 33.1-391.4; 2002, c. 355; 2013, c. 211; 2014, c. 805.

    § 33.2-285. Responsibilities of Department of Rail and Public Transportation.

    The Department of Rail and Public Transportation has the responsibility to:

    1. Determine present and future needs for, and economic feasibility of providing, public transportation, transportation demand management, and ridesharing facilities and services and the retention, improvement, and addition of passenger and freight rail transportation in the Commonwealth;
    2. Formulate and implement plans and programs for the establishment, improvement, development and coordination of public transportation, transportation demand management, and ridesharing facilities and services, and the development, retention, and improvement of passenger and freight rail transportation services and corridors in the Commonwealth, including lines for higher speed passenger rail that will shift traffic from the highways to passenger rail and thereby reduce traffic congestion, and coordinate transportation demand management and innovative technological transportation initiatives with the Department of Transportation;
    3. Coordinate with the Department of Transportation in the conduct of research, policy analysis, and planning for the rail and public transportation modes as may be appropriate to alleviate traffic congestion on highways by shifting traffic to passenger rail and to ensure the provision of effective, safe, and efficient public transportation and passenger and freight rail services in the Commonwealth;
    4. Develop uniform financial and operating data on and criteria for evaluating all public transportation activities in the Commonwealth, develop specific methodologies for the collection of such data by public transit operators, regularly and systematically verify such data by means of financial audits and periodic field reviews of operating data collection methodologies, and develop such other information as may be required to evaluate the performance and improve the economy or efficiency of public transit or passenger and freight rail operations, transportation demand management programs, and ridesharing in the Commonwealth;
    5. Compile and maintain an up-to-date inventory of all abandoned railroad corridors in the Commonwealth abandoned after January 1, 1970;
    6. Provide training and other technical support services to transportation operators and ridesharing coordinators as may be appropriate to improve public transportation, ridesharing, and passenger and freight rail services;
    7. Maintain liaison with state, local, district, and federal agencies or other entities, private and public, having responsibilities for passenger and freight rail, transportation demand management, ridesharing, and public transportation programs;
    8. Receive, administer, and allocate all planning, operating, capital, and any other grant programs from the Federal Transit Administration, the Federal Railroad Administration, the Federal Highway Administration, and other agencies of the United States government for public transportation, passenger and freight rail transportation, transportation demand management, and ridesharing purposes with approval of the Board and to comply with all conditions attendant thereto;
    9. Administer all state grants for public transportation, rail transportation, ridesharing, and transportation demand management purposes with approval of the Board;
    10. Promote the use of public transportation, transportation demand management, ridesharing, and passenger and freight rail services to improve the mobility of Virginia’s citizens and the transportation of goods;
    11. Represent the Commonwealth on local, regional, and national agencies, industry associations, committees, task forces, and other entities, public and private, having responsibility for passenger and freight rail, transportation demand management, ridesharing, and public transportation;
    12. Represent the Commonwealth’s interests in passenger and freight rail, transportation demand management, ridesharing, and public transportation and coordinate with the Department of Transportation in the planning, location, design, construction, implementation, monitoring, evaluation, purchase, and rehabilitation of facilities and services that affect or are used by passenger and freight rail, transportation demand management, ridesharing, or public transportation;
    13. Coordinate with the State Corporation Commission on all matters dealing with rail safety inspections and rail regulations that fall within its purview;
    14. Prepare and review state legislation and Commonwealth recommendations on federal legislation and regulations as directed by the Secretary of Transportation;
    15. Promote public transportation, ridesharing, and passenger and freight rail safety; and
    16. Ensure the safety of rail fixed guideway transit systems within the Commonwealth and carry out state safety and security oversight responsibilities for rail fixed guideway transit systems as required by the Federal Transit Administration and federal law. For any rail fixed guideway transit system operated within the Commonwealth pursuant to an interstate compact, the Department of Rail and Public Transportation shall perform its oversight responsibilities in accordance with the interstate compact governing the operation of such system and any applicable federal law.

    History. 1992, c. 167, § 33.1-391.5; 2002, c. 355; 2007, c. 435; 2009, c. 146; 2013, c. 211; 2014, c. 805.

    § 33.2-286. Urban transit agency strategic plans.

    1. The Department of Rail and Public Transportation shall develop guidelines, subject to the approval of the Board, for the development of strategic plans for transit agencies that (i) serve an urbanized area with a population of 50,000 or more and (ii) have a bus fleet consisting of at least 20 buses.
    2. As a condition of receiving funds from the Commonwealth Mass Transit Fund, any transit agency that meets the criteria of subsection A shall develop, and update at least once every five years, a strategic plan using the guidelines approved by the Board.
    3. The guidelines shall require the following:
      1. An assessment of state of good repair needs;
      2. A review of the performance of fixed-route bus service, including schedules, route design, connectivity, and vehicle sizes;
      3. An evaluation of opportunities to improve operating efficiency of the transit network, including reliability of trips and travel speed;
      4. An examination and identification of opportunities to share services where multiple transit providers’ services overlap; and
      5. An examination of opportunities to improve service in underserved areas.
    4. In addition to developing and updating a strategic plan pursuant to this section, in all planning districts with transit systems collectively serving population areas of not less than 1.5 million nor more than 2 million, such transit systems shall develop a regional transit planning process coordinated by the federally designated Metropolitan Planning Organization. Such planning process shall include the identification and prioritization of projects, the establishment of performance benchmarks that incorporate state and federal requirements, the development and implementation of a regional subsidy allocation model, and the distribution of funds solely designated for transit and rail and that are administered by a regional body authorized by this Code to enter into agreements for the operation and maintenance of transit and rail facilities.

    History. 2018, cc. 854, 856.

    Editor’s note.

    Acts 2018, cc. 854 and 856, cl. 10 provides: “That the Commonwealth Transportation Board shall (i) adopt the guidelines required by § 33.2-286 of the Code of Virginia, as created by this act, by December 1, 2018, and (ii) develop and adopt a plan for phased implementation of the requirements for submissions of the strategic plans required to be developed over a period of five years. No agency subject to § 33.2-286 of the Code of Virginia, as created by this act, shall be penalized for not submitting a strategic plan pursuant to such section, provided that the agency is in compliance with the phased implementation schedule adopted by the Commonwealth Transportation Board.”

    Acts 2020, cc. 1241 and 1281, cl. 3 provides: “That the Hampton Roads Transportation Planning Organization shall establish a regional transit advisory panel composed of representatives of major business and industry groups, employers, shopping destinations, institutions of higher education, military installations, hospitals and health care centers, public transit entities, and any other groups identified as necessary to provide ongoing advice to the regional planning process required pursuant to § 33.2-286 of the Code of Virginia on the long-term vision for a multimodal regional public transit network in Hampton Roads.”

    Article 6. Virginia Passenger Rail Authority Act.

    § 33.2-287. Definitions.

    As used in this article, unless the context requires a different meaning:

    “Authority” means the Virginia Passenger Rail Authority.

    “Board” means the Board of Directors of the Authority.

    “Bonds” means the revenue notes, bonds, certificates, and other evidences of indebtedness or obligations of the Authority.

    “Cost” means, as applied to rail facilities, (i) the cost of construction; (ii) the cost of acquisition of all lands, structures, fixtures, rights-of-way, franchises, easements, and other property rights and interests; (iii) the cost of demolishing, removing, or relocating any buildings, structures, or fixtures on lands acquired, including the cost of acquiring any lands to which such buildings, structures, or fixtures may be moved or relocated; (iv) the cost of all labor, materials, machinery, and equipment; (v) financing charges and interest on all bonds prior to and during construction and for one year after completion of construction; (vi) the cost of engineering, financial, and legal services, plans, specifications, studies, surveys, estimates of cost and of revenues, and other expenses incidental to determining the feasibility of acquiring, constructing, operating, or maintaining rail facilities; (vii) administrative expenses, provisions for working capital, and reserves for interest and for extensions, enlargements, additions, and improvements; and (viii) such other expenses as may be necessary or incidental to the acquisition, construction, financing, operations, and maintenance of rail facilities. Any obligation or expense incurred by the Commonwealth or any agency thereof for studies, surveys, borings, preparation of plans, and specification or other work or materials in the acquisition or construction of rail facilities may be regarded as a part of the cost of rail facilities and may be reimbursed to the Commonwealth or any agency thereof out of the proceeds of the bonds issued for such rail facilities as herein authorized.

    “Department” means the Department of Rail and Public Transportation.

    “Rail facilities” means the assets consisting of the real, personal, or mixed property, or any interest in that property, whether tangible or intangible, that are determined to be necessary or convenient for the provision of passenger rail service. “Rail facilities” includes all property or interests necessary or convenient for the acquiring, providing, using, equipping, or maintaining of a rail facility or system, including right-of-way, trackwork, train controls, stations, and maintenance facilities.

    “Transportation Board” means the Commonwealth Transportation Board.

    History. 2020, cc. 1230, 1275.

    Editor’s note.

    Acts 2020, cc. 1230 and 1275, cl. 12 provides: “That the General Assembly has determined that the development, expansion, and continuation of commuter and intercity passenger rail service and the development of rail infrastructure, rolling stock, and support facilities to support commuter and intercity passenger rail service are important elements of a balanced transportation system in the Commonwealth and are essential to the Commonwealth’s continued economic growth, vitality, and competitiveness in national and world markets; and that, in pursuit of the development, expansion, and continuation of commuter and intercity passenger rail service, the Commonwealth is pursuing various rail and other infrastructure improvements leading into Washington, D.C., from Virginia, including a new bridge structure that crosses the Potomac River between Arlington County and the District of Columbia in the vicinity of the 14th Street Bridge complex and the Metro Fenwick Bridge and which may include, in addition to the river crossing, reasonably related new track approaches to the new bridge, as well as property acquisition and upgrades to the existing tracks on the Virginia and the Washington, D.C., sides of the new bridge; and that new Metrorail related improvements to, and serving, the Rosslyn Metrorail station in Arlington County that would facilitate the movement of passengers and relieve train congestion on the Blue, Orange, and Silver Metrorail lines, and which may include a new platform and station, pedestrian connections to the existing Rosslyn Metrorail station, and a future new extension of Metrorail under the Potomac River (the Rail Improvements); and that the Commonwealth, through either or both of the Virginia Department of Rail and Public Transportation and the Virginia Passenger Rail Authority or such other Commonwealth agency or political subdivision as the General Assembly may authorize, will own the network of Rail Improvements and the various rail facilities, structures, and equipment constructed or acquired in connection therewith (the Rail Network) and may partner with one or more passenger or commuter rail service providers, including but not limited to Amtrak and the owners and operators of Virginia Rail Express, to deliver enhanced and reliable passenger rail service throughout the Rail Network; and that the Commonwealth, through the Virginia Department of Transportation, owns and operates the tolled express lanes comprising part of the Transform 66 Inside the Beltway express lanes project (the Inside the Beltway Express Lanes) and the revenues therefrom are intended to be applied to pay for transportation and other infrastructure improvements in and around the I-66 corridor; and that the General Assembly desires to authorize the incurrence of obligations secured, in part, by a pledge of certain net toll revenues from the Inside the Beltway Express Lanes collected by the Commonwealth and appropriated by the General Assembly, to finance the costs of (i) acquiring, constructing, renovating, expanding, enlarging, improving, installing, and equipping the Rail Improvements and the Rail Network; (ii) acquiring any lands, structures, fixtures, rights-of-way, franchises, easements, and other property rights and interests related to the Rail Improvements; and (iii) demolishing, removing, or relocating any buildings, structures, or fixtures on lands acquired for the Rail Improvements.”

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    Credit clause. —

    Grant of funds to the railroad for the development of the intermodal facility did not violate the credit clause because it was a grant and not an extension of the Commonwealth’s credit to the railroad. Montgomery County v. Va. Dep't of Rail & Pub. Transp., 282 Va. 422 , 719 S.E.2d 294, 2011 Va. LEXIS 216 (2011).

    Authorizing funding. —

    Funding for the facility under the Agreement between the parties regarding railroad development was authorized pursuant to legislation intended to be directly related to the construction, maintenance and operation of Virginia’s highways. The statute’s application did not violate the internal improvements clause under Va. Const., Art. X, § 10, because it came within the public roads exception. Montgomery County v. Va. Dep't of Rail & Pub. Transp., 282 Va. 422 , 719 S.E.2d 294, 2011 Va. LEXIS 216 (2011).

    CIRCUIT COURT OPINIONS

    Constitutionality. —

    The Rail Enhancement Fund: Multi Year Funding Agreement, authorized by § 33.1-221.1:1.1, which permitted the Virginia Department of Rail and Public Transportation to grant funds of the Commonwealth of Virginia to railroads for improvements to their facilities, was constitutional under the Internal Improvements Clause and the Credit Clause of Va. Const., Art. X, § 10. Montgomery County v. Va. Dep't of Rail & Pub. Transp., 79 Va. Cir. 521, 2009 Va. Cir. LEXIS 247 (Richmond Nov. 18, 2009), aff'd, 282 Va. 422 , 719 S.E.2d 294, 2011 Va. LEXIS 216 (2011).

    § 33.2-288. Declaration of public purpose; Virginia Passenger Rail Authority.

    1. The General Assembly finds and determines that (i) it is the policy of the Commonwealth to improve, identify, encourage, and promote new approaches to economic development throughout the Commonwealth; (ii) passenger rail travel and services are integral to the economic development and expansion of the Commonwealth’s economy; and (iii) there exists in the Commonwealth a need to increase passenger rail capacity in the Commonwealth and improve passenger rail services.
    2. In order to increase passenger rail capacity, improve passenger rail services, ameliorate current and future traffic congestion on Virginia highways, and promote the industrial and economic development of the Commonwealth, there is hereby created a body corporate and political subdivision of the Commonwealth to be known as the Virginia Passenger Rail Authority. The Authority is hereby constituted as a public instrumentality exercising public and essential governmental functions, and the exercise of powers conferred by this article shall be deemed to be the performance of an essential governmental function and matters of public necessity for which public moneys may be spent and private property acquired.
    3. The purpose of the Authority shall be to promote, sustain, and expand the availability of passenger and commuter rail service in the Commonwealth and to increase ridership of such service by connecting population centers with passenger and commuter rail service and increasing availability of such service.

    History. 2020, cc. 1230, 1275.

    Editor’s note.

    Acts 2020, cc. 1230 and 1275, cl. 12 provides: “That the General Assembly has determined that the development, expansion, and continuation of commuter and intercity passenger rail service and the development of rail infrastructure, rolling stock, and support facilities to support commuter and intercity passenger rail service are important elements of a balanced transportation system in the Commonwealth and are essential to the Commonwealth’s continued economic growth, vitality, and competitiveness in national and world markets; and that, in pursuit of the development, expansion, and continuation of commuter and intercity passenger rail service, the Commonwealth is pursuing various rail and other infrastructure improvements leading into Washington, D.C., from Virginia, including a new bridge structure that crosses the Potomac River between Arlington County and the District of Columbia in the vicinity of the 14th Street Bridge complex and the Metro Fenwick Bridge and which may include, in addition to the river crossing, reasonably related new track approaches to the new bridge, as well as property acquisition and upgrades to the existing tracks on the Virginia and the Washington, D.C., sides of the new bridge; and that new Metrorail related improvements to, and serving, the Rosslyn Metrorail station in Arlington County that would facilitate the movement of passengers and relieve train congestion on the Blue, Orange, and Silver Metrorail lines, and which may include a new platform and station, pedestrian connections to the existing Rosslyn Metrorail station, and a future new extension of Metrorail under the Potomac River (the Rail Improvements); and that the Commonwealth, through either or both of the Virginia Department of Rail and Public Transportation and the Virginia Passenger Rail Authority or such other Commonwealth agency or political subdivision as the General Assembly may authorize, will own the network of Rail Improvements and the various rail facilities, structures, and equipment constructed or acquired in connection therewith (the Rail Network) and may partner with one or more passenger or commuter rail service providers, including but not limited to Amtrak and the owners and operators of Virginia Rail Express, to deliver enhanced and reliable passenger rail service throughout the Rail Network; and that the Commonwealth, through the Virginia Department of Transportation, owns and operates the tolled express lanes comprising part of the Transform 66 Inside the Beltway express lanes project (the Inside the Beltway Express Lanes) and the revenues therefrom are intended to be applied to pay for transportation and other infrastructure improvements in and around the I-66 corridor; and that the General Assembly desires to authorize the incurrence of obligations secured, in part, by a pledge of certain net toll revenues from the Inside the Beltway Express Lanes collected by the Commonwealth and appropriated by the General Assembly, to finance the costs of (i) acquiring, constructing, renovating, expanding, enlarging, improving, installing, and equipping the Rail Improvements and the Rail Network; (ii) acquiring any lands, structures, fixtures, rights-of-way, franchises, easements, and other property rights and interests related to the Rail Improvements; and (iii) demolishing, removing, or relocating any buildings, structures, or fixtures on lands acquired for the Rail Improvements.”

    § 33.2-289. (Effective until July 1, 2022) Board of Directors.

    1. The Authority shall be governed by the Board of Directors of the Authority consisting of 15 members as follows: (i) 12 nonlegislative citizen members, appointed by the Governor, who shall serve with voting privileges; (ii) a designee of the President and Chief Executive Officer of the National Passenger Rail Corporation, who shall serve without voting privileges; (iii) the chief executive officer of a commuter rail service jointly operated by the Northern Virginia Transportation District established pursuant to § 33.2-1904 and the Potomac and Rappahannock Transportation District established pursuant to the Transportation District Act (§ 33.2-1900 et seq.), who shall serve ex officio without voting privileges; and (iv) the Director of the Department, who shall serve ex officio and shall have voting privileges only in the event of a tie. Of the 12 nonlegislative citizen members with voting privileges:
      1. Three members shall reside within the boundaries of the Northern Virginia Transportation District established pursuant to § 33.2-1904 . Such members may be selected from a list recommended by the Northern Virginia Transportation Commission, after due consideration of such list by the Governor;
      2. Three members shall reside within the boundaries of the Potomac-Rappahannock Transportation District established pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.). Such members may be selected from a list recommended by the Potomac and Rappahannock Transportation Commission, after due consideration of such list by the Governor;
      3. Two members shall reside within the boundaries of the Richmond Metropolitan Transportation Authority established pursuant to Chapter 29 (§ 33.2-2900 et seq.);
      4. Two members shall reside within the boundaries of the Hampton Roads Transportation Accountability Commission established pursuant to Chapter 26 (§ 33.2-2600 et seq.); and
      5. Two members shall reside within the boundaries of Planning District 5, 9, 10, or 11.
    2. The nonlegislative citizen members appointed by the Governor shall be subject to confirmation by the General Assembly. Vacancies shall be filled by appointment by the Governor for the unexpired term and shall be effective until 30 days after the next meeting of the ensuing General Assembly and, if confirmed, thereafter for the remainder of the term. No member shall be eligible to serve more than two consecutive four-year terms. The remainder of any term for which a member is appointed to fill a vacancy shall not constitute a term in determining that member’s eligibility for reappointment. No member of a governing body of a locality shall be eligible, during the term of office for which he was elected or appointed, to serve as an appointed member of the Board. The Director shall serve terms coincident with his term of office.
    3. The Director of the Department shall serve as chairman of the Board. The Board shall annually elect from among its members a vice-chairman and a secretary. The Board shall also annually elect a treasurer, who need not be a member of the Board, and may also elect other subordinate officers who need not be a member of the Board, as it deems proper. The chairman or, in his absence, the vice-chairman shall preside at all meetings of the Board. In the absence of both the chairman and vice-chairman, the Board shall appoint a chairman pro tempore, who shall preside at such meetings.
    4. Seven members shall constitute a quorum for the transaction of the Authority’s business, and no vacancy in the membership shall impair the right of a quorum to exercise all the rights and perform all the duties of the Authority. All actions of the Board shall require the affirmative vote of a majority of the members present and voting, except that the sale of land or issuance of bonds shall require an affirmative vote of nine members present and voting.
    5. The Board shall meet at least once quarterly. The Board shall determine the times and places of its regular meetings. Special meetings of the Board shall be held when requested by three or more members of the Board. Any such request for a special meeting shall be in writing, and the request shall specify the time and place of the meeting and the matters to be considered at the meeting. A reasonable effort shall be made to provide each member with notice of any special meeting. No matter not specified in the notice shall be considered at such special meeting unless all members of the Board are present.
    6. The members of the Board shall be entitled to reimbursement for their reasonable travel, meal, and lodging expenses incurred in attending the meetings of the Board or while otherwise engaged in the discharge of their duties. Such expenses shall be paid out of the treasury of the Authority upon vouchers signed by the chairman of the Board or by such other person or persons as may be designated by the Board for this purpose.

    History. 2020, cc. 1230, 1275.

    Editor’s note.

    Acts 2020, cc. 1230 and 1275, cl. 9 provides: “That the initial terms for members of the Board of the Virginia Passenger Rail Authority shall be staggered as follows: (i) of the members appointed pursuant to subdivision A 1 of § 33.2-289 of the Code of Virginia, as created by this act, one shall be for a term of two years, one shall be for a term of three years, and one shall be for a term of four years; (ii) of the members appointed pursuant to subdivision A 2 of § 33.2-289 , one shall be for a term of one year, one shall be for a term of two years, and one shall be for a term of four years; (iii) of the members appointed pursuant to subdivision A 3 of § 33.2-289, one shall be for a term of one year, and one shall be for a term of three years; (iv) of the members appointed pursuant to subdivision A 4 of § 33.2-289, one shall be for a term of two years and one shall be for a term of four years; and (v) of the members appointed pursuant to subdivision A 5 of § 33.2-289, one shall be for a term of one year and one shall be for a term of three years.”

    The 2022 amendments.

    The 2022 amendment by c. 212 substituted “One member” for “Two members” in subdivision A 5; added subdivision A 6; and made stylistic changes.

    § 33.2-289. (Effective July 1, 2022) Board of Directors.

    1. The Authority shall be governed by the Board of Directors of the Authority consisting of 15 members as follows: (i) 12 nonlegislative citizen members, appointed by the Governor, who shall serve with voting privileges; (ii) a designee of the President and Chief Executive Officer of the National Passenger Rail Corporation, who shall serve without voting privileges; (iii) the chief executive officer of a commuter rail service jointly operated by the Northern Virginia Transportation District established pursuant to § 33.2-1904 and the Potomac and Rappahannock Transportation District established pursuant to the Transportation District Act (§ 33.2-1900 et seq.), who shall serve ex officio without voting privileges; and (iv) the Director of the Department, who shall serve ex officio and shall have voting privileges only in the event of a tie. Of the 12 nonlegislative citizen members with voting privileges:
      1. Three members shall reside within the boundaries of the Northern Virginia Transportation District established pursuant to § 33.2-1904 . Such members may be selected from a list recommended by the Northern Virginia Transportation Commission, after due consideration of such list by the Governor;
      2. Three members shall reside within the boundaries of the Potomac-Rappahannock Transportation District established pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.). Such members may be selected from a list recommended by the Potomac and Rappahannock Transportation Commission, after due consideration of such list by the Governor;
      3. Two members shall reside within the boundaries of the Richmond Metropolitan Transportation Authority established pursuant to Chapter 29 (§ 33.2-2900 et seq.);
      4. Two members shall reside within the boundaries of the Hampton Roads Transportation Accountability Commission established pursuant to Chapter 26 (§ 33.2-2600 et seq.);
      5. One member shall reside within the boundaries of Planning District 5, 9, 10, or 11; and
      6. One member shall reside within the boundaries of Planning District 3 or 4.
    2. The nonlegislative citizen members appointed by the Governor shall be subject to confirmation by the General Assembly. Vacancies shall be filled by appointment by the Governor for the unexpired term and shall be effective until 30 days after the next meeting of the ensuing General Assembly and, if confirmed, thereafter for the remainder of the term. No member shall be eligible to serve more than two consecutive four-year terms. The remainder of any term for which a member is appointed to fill a vacancy shall not constitute a term in determining that member’s eligibility for reappointment. No member of a governing body of a locality shall be eligible, during the term of office for which he was elected or appointed, to serve as an appointed member of the Board. The Director shall serve terms coincident with his term of office.
    3. The Director of the Department shall serve as chairman of the Board. The Board shall annually elect from among its members a vice-chairman and a secretary. The Board shall also annually elect a treasurer, who need not be a member of the Board, and may also elect other subordinate officers who need not be a member of the Board, as it deems proper. The chairman or, in his absence, the vice-chairman shall preside at all meetings of the Board. In the absence of both the chairman and vice-chairman, the Board shall appoint a chairman pro tempore, who shall preside at such meetings.
    4. Seven members shall constitute a quorum for the transaction of the Authority’s business, and no vacancy in the membership shall impair the right of a quorum to exercise all the rights and perform all the duties of the Authority. All actions of the Board shall require the affirmative vote of a majority of the members present and voting, except that the sale of land or issuance of bonds shall require an affirmative vote of nine members present and voting.
    5. The Board shall meet at least once quarterly. The Board shall determine the times and places of its regular meetings. Special meetings of the Board shall be held when requested by three or more members of the Board. Any such request for a special meeting shall be in writing, and the request shall specify the time and place of the meeting and the matters to be considered at the meeting. A reasonable effort shall be made to provide each member with notice of any special meeting. No matter not specified in the notice shall be considered at such special meeting unless all members of the Board are present.
    6. The members of the Board shall be entitled to reimbursement for their reasonable travel, meal, and lodging expenses incurred in attending the meetings of the Board or while otherwise engaged in the discharge of their duties. Such expenses shall be paid out of the treasury of the Authority upon vouchers signed by the chairman of the Board or by such other person or persons as may be designated by the Board for this purpose.

    History. 2020, cc. 1230, 1275; 2022, c. 212.

    § 33.2-290. Executive Director; agents and employees.

    1. The Board shall employ an Executive Director of the Authority, who shall not be a member of the Board and who shall serve at the pleasure of the Board, to direct the day-to-day operations and activities of the Authority and carry out the powers and duties conferred upon him as may be delegated to him by the Board. The Executive Director’s compensation from the Commonwealth shall be fixed by the Board in accordance with law. This compensation shall be established at a level that will enable the Authority to attract and retain a capable Executive Director.
    2. The Executive Director shall employ or retain such other agents or employees subordinate to the Executive Director as may be necessary, subject to the Board’s approval.
    3. Employees of the Authority shall be employed on such terms and conditions as established by the Authority and shall be considered employees of the Commonwealth. Employees of the Authority shall be eligible for membership in the Virginia Retirement System or other retirement plans authorized by Article 4 (§ 51.1-125 et seq.) of Chapter 1 of Title 51.1 and participation in all health and related insurance and other benefits, including premium coverage and flexible benefits, available to state employees and provided by law. The Board shall develop and adopt personnel rules, policies, and procedures to give its employees grievance rights, ensure that employment decisions shall be based upon merit and fitness of applicants, and prohibit discrimination on the basis of race, religion, color, national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, marital status, or disability. Notwithstanding any other provision of law, the Board shall develop, implement, and administer a paid leave program, which may include annual, personal, and sick leave or any combination thereof. All other leave benefits shall be administered in accordance with Chapter 11 (§ 51.1-1100 et seq.) or Chapter 11.1 (§ 51.1-1150 et seq.) of Title 51.1, except as otherwise provided in this section.

    History. 2020, cc. 1230, 1275.

    § 33.2-291. Local authorities subordinate to Authority.

    Any conflict between any authority granted to localities or other entities of the Commonwealth, other than the Transportation Board and the Department, with respect to the ownership or use of rail facilities or the provision of passenger rail service, or the exercise of that authority, and the exercise of the authority granted by the Board under this article shall be resolved in favor of the exercise of such authority by the Board. Rights-of-way transferred to the Authority from a railroad shall not be subject to the requirements of any local ordinances enacted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2.

    History. 2020, cc. 1230, 1275.

    § 33.2-292. Powers of the Authority.

    1. The Authority, in addition to other powers enumerated in this article, is hereby granted and shall have and may exercise all powers necessary or convenient for the carrying out of its statutory purposes, including, but without limiting the generality of the foregoing, the power to:
      1. Make and adopt bylaws, rules, and regulations;
      2. Adopt, use, and alter at will a common seal;
      3. Maintain offices;
      4. Sue and be sued, implead and be impleaded, complain, and defend in all courts in its own name; however, this shall not be deemed a waiver or relinquishment of any sovereign immunity to which the Authority or its officers, directors, employees, or agents are otherwise entitled;
      5. Grant others the privilege to design, build, finance, operate, and maintain rail facilities;
      6. Grant others the privilege to operate concessions, leases, and franchises, including but not limited to the accommodation and comfort of persons using rail facilities and the provision of ground transportation services and parking facilities for such persons;
      7. Borrow money and issue bonds to finance and refinance rail facilities pursuant to § 33.2-294 ; and pledge or otherwise encumber all or any of the revenues or receipts of the Authority as security for all or any of the obligations of the Authority, subject to the limitations in subsection J of § 33.2-294 ;
      8. Fix, alter, charge, and collect fees, rates, rentals, and other charges for the use of rail facilities, the sale of products, or services rendered by the Authority at rates to be determined by it for the purpose of providing for the payment of (i) expenses of the Authority; (ii) the costs of planning, development, construction, improvement, rehabilitation, repair, furnishing, maintenance, and operation of its rail facilities and properties; (iii) the costs of accomplishing its purposes set forth in § 33.2-288 ; and (iv) the principal of and interest on its obligations, and the funding of reserves for such purposes, and the costs of maintaining, repairing, and operating any rail facilities and fulfilling the terms and provisions of any agreement made with the purchasers or holders of any such obligations;
      9. Make and enter into all contracts and agreements necessary or incidental to the performance of its duties, the furtherance of its purposes, and the execution of its powers under this article, including agreements with any person, federal agency, other state, or political subdivision of the Commonwealth;
      10. Employ, in its discretion, consultants, attorneys, architects, engineers, accountants, financial experts, investment bankers, superintendents, managers, and such other employees and agents as may be necessary and fix their compensation to be payable from funds lawfully available to the Authority;
      11. Appoint advisory committees as may be necessary for the performance of its duties, the furtherance of its purposes, and the execution of its powers under this article;
      12. Vacate or change location of any portion of any public highway, street, public way, public utility, sewer, pipe, main, conduit, cable, wire, tower pole, or other equipment of the Commonwealth and its political subdivisions and reconnect the same in a new location;
      13. Enter upon lands, waters, and premises for surveys, soundings, borings, examinations, and other activities as may be necessary for the performance of its duties;
      14. Receive and accept from any federal or private agency, foundation, corporation, association, or person grants, donations of money or real or personal property for the benefit of the Authority and receive and accept from the Commonwealth or any state, and any municipality, county, or other political subdivision thereof and from any other source, aid or contributions of either money, property, or other things of value to be held, used, and applied for the purposes for which such grants and contributions may be made, provided that any federal moneys so received and accepted shall be accepted and expended by the Authority upon such terms and conditions as are prescribed by the United States and as are consistent with the laws of the Commonwealth and any state moneys so received shall be accepted and expended by the Authority upon such terms and conditions as are prescribed by the Commonwealth;
      15. Accept loans from the federal government, the state government, regional authorities, localities, and private sources, provided that any federal moneys so accepted shall be accepted and expended by the Authority upon such terms and conditions as are prescribed by the United States and as are consistent with laws of the Commonwealth and any state moneys so accepted shall be accepted and expended by the Authority upon such terms and conditions as are prescribed by the Commonwealth;
      16. Lease or sell and convey the airspace superadjacent or subadjacent to any rail facility owned by the Authority;
      17. Pledge or otherwise encumber all or any of the revenues or receipts of the Authority as security for all or any of the obligations of the Authority;
      18. Participate in joint ventures with individuals, domestic or foreign stock and nonstock corporations, limited liability companies, partnerships, limited partnerships, associations, foundations, or other supporting organizations or other entities for providing passenger rail or related services or other activities that the Authority may undertake to the extent that such undertakings assist the Authority in carrying out the purposes and intent of this article;
      19. Act as a “responsible public entity” for the purposes of the acquisition, construction, improvement, maintenance, or operation, or any combination thereof, of a “qualifying transportation facility” under the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.); and
      20. Undertake all actions necessary and convenient to carry out the powers granted herein.
    2. Notwithstanding the provisions of this section, the Authority shall not directly operate any passenger, commuter, or other rail service.

    History. 2020, cc. 1230, 1275.

    § 33.2-293. Acquisition, possession, and disposition of rail facilities; eminent domain.

    1. The Authority shall have the right to acquire by purchase, lease, or grant rail facilities and other lands, structures, property, both real and personal, tangible and intangible, rights, rights-of-way, franchises, easements, and other interests therein, whether located within or not within the geographic boundaries of the Commonwealth, for the construction, operation, maintenance, and use of rail facilities.
    2. The Authority shall have the right to hold and dispose of rail facilities and other lands, structures, property, both real and personal, tangible and intangible, rights, rights-of-way, franchises, easements, and other interests therein in the exercise of its powers and the performance of its duties under this article, including but not limited to the sale, exchange, lease, mortgage, or pledge of such property or interest therein, provided that any such disposition that involves property or interests with a fair market value in excess of $5 million shall require the consent of the Transportation Board.
    3. The Commonwealth and any agencies or political subdivisions thereof may provide services, donate, lease, sell, convey, or otherwise transfer, with or without consideration or for minimal consideration, real or personal property and make appropriations to the Authority for the design, acquisition, construction, equipping, maintenance, and operation of rail facilities and may issue bonds in the manner provided in the Public Finance Act (§ 15.2-2600 et seq.) or in its municipal charter for the purpose of providing funds to be appropriated to the Authority; the Authority may agree to assume, or reimburse such a political subdivision for, any indebtedness incurred by such political subdivision with respect to facilities conveyed by it to the Authority.
    4. The Authority is authorized to acquire by the exercise of the power of eminent domain any lands, property rights, rights-of-way, franchises, easements, and other property, including public lands, parks, playgrounds, reservations, highways, or parkways, or parts thereof or rights therein, of any person, partnership, association, railroad, public service, public utility, or other corporation, or of any municipality, county, or other political subdivision, deemed necessary for the construction or the efficient operation of rail facilities or necessary in the restoration, replacement, or relocation of public or private property damaged or destroyed whenever a reasonable price cannot be agreed upon with the governing body of such municipality, county, or other political subdivision as to such property owned by it or whenever the Authority cannot agree on the terms of purchase or settlement with the other owners because of the incapacity of such owners, because of the inability to agree on the compensation to be paid or other terms of settlement or purchase, or because such owners are nonresidents of the Commonwealth, are unknown, or are unable to convey valid title to such property. Such proceedings shall be in accordance with and subject to the provisions of any and all laws of the Commonwealth applicable to the exercise of the power of eminent domain and subject to the provisions of Chapter 2 (§ 25.1-200 et seq.) of Title 25.1. Title to any property condemned by the Authority shall immediately vest in the Authority, and the Authority shall be entitled to the immediate possession of such property upon the deposit with the clerk of the court in which such condemnation proceedings are originated of the total amount of the appraised price of the property and court costs and fees as provided by law, notwithstanding that any of the parties to such proceedings may appeal from any decision in such condemnation proceedings. Whenever the Authority makes such deposit in connection with any condemnation proceedings, the making of such deposit shall not preclude the Authority from appealing any decision rendered in such proceedings. Upon the deposit with the clerk of the court of the appraised price, any person entitled thereto may, upon petition to the court, be paid his or their pro rata share of 100 percent of such appraised price. The acceptance of such payment shall not preclude such person from appealing any decision rendered in such proceedings. If the appraisal is greater or less than the amount finally determined by the decision in such proceedings or by an appeal, the amount of the increase or decrease shall be paid or refunded to the Authority.
    5. The acquisition of any such property by condemnation or by the exercise of the power of eminent domain for the purposes provided herein shall be and is declared to be a public use of such property.
    6. For purposes of this section, the terms “appraised price” and “appraisal” mean the value determined by two competent real estate appraisers appointed by the Authority for such purposes.

    History. 2020, cc. 1230, 1275.

    § 33.2-294. Issuance of bonds.

    1. The Authority may issue bonds from time to time in its discretion, for any of its purposes, including the payment of all or any part of the cost of rail facilities. Notwithstanding the foregoing, any bonds issued to pay for the initial funding of capital projects shall be limited to financing capital expenditures and projects submitted for approval by the Transportation Board as set forth in § 33.2-298 .
    2. The Authority may issue refunding bonds for the purpose of refunding any bonds then outstanding that shall have been issued under the provisions of this article, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date fixed for redemption of such bonds. The issuance of such bonds, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties, and obligations of the Authority in respect of the same shall be governed by the provisions of this article insofar as the same may be applicable.
    3. The bonds of each issue shall be dated such date as may be determined by the Authority; shall bear interest at such rate or rates as shall be fixed by the Authority, or as may be determined in such manner as the Authority may provide, including the determination by agents designated by the Authority under guidelines established by the Authority; shall mature at such time or times not exceeding 40 years from their date or dates, as may be determined by the Authority; and may be made redeemable before maturity, at the option of the Authority, at such price or prices and under such terms and conditions as may be fixed by the Authority prior to the issuance of the bonds.
    4. The Authority shall determine the form of the bonds and manner of execution of the bonds and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest, which may be at any bank or trust company within or outside the Commonwealth. The bonds shall be signed by the chairman or vice-chairman of the Authority or, if so authorized by the Authority, shall bear his facsimile signature and the official seal of the Authority, or, if so authorized by the Authority, a facsimile thereof shall be impressed or imprinted thereon and attested by the secretary or any assistant secretary of the Authority, or, if so authorized by the Authority, with the facsimile signature of such secretary or assistant secretary. Any coupons attached to bonds issued by the Authority shall bear the signature of the chairman or vice-chairman of the Authority or a facsimile thereof. In case any officer whose signature or a facsimile of whose signature shall appear on any bonds or coupons shall cease to be such officer before the delivery of such bonds, such signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery, and any bonds may bear the facsimile signature of, or may be signed by, such persons as at the actual time of the execution of such bonds shall be the proper officers to sign such bonds although at the date of such bonds such persons may not have been such officers.
    5. The bonds may be issued in coupon or in registered form, or both, as the Authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, for the reconversion into coupon bonds of any bonds registered as to both principal and interest, and for the interchange of registered and coupon bonds. Bonds issued in registered form may be issued under a system of book-entry for recording the ownership and transfer of ownership of rights to receive payment of principal of, and premium on, if any, and interest on such bonds. The Authority may contract for the services of one or more banks, trust companies, financial institutions, or other entities or persons, within or outside the Commonwealth, for the authentication, registration, transfer, exchange, and payment of the bonds or may provide such services itself. The Authority may sell such bonds in such manner, either at public or private sale, and for such price as it may determine will best effect the purposes of this article.
    6. The proceeds of the bonds of each issue shall be used solely for the purposes, and in furtherance of the powers, of the Authority as may be provided in the resolution authorizing the issuance of such bonds or in the trust agreement hereinafter mentioned securing the same.
    7. In addition to the above powers, the Authority shall have the authority to issue interim receipts or temporary bonds as provided in § 15.2-2616 and to execute and deliver new bonds in place of bonds mutilated, lost, or destroyed as provided in § 15.2-2621 .
    8. All expenses incurred in carrying out the provisions of this article shall be payable solely from funds available pursuant to the provisions of this article, and no liability shall be incurred by the Authority hereunder beyond the extent to which moneys shall have been provided or received under the provisions of this article.
    9. At the discretion of the Authority, any bonds issued under the provisions of this article may be secured by a trust indenture or agreement by and between the Authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or outside the Commonwealth. Such trust indenture or agreement or the resolution providing for the issuance of such bonds may pledge or assign the revenues to be received and provide for the mortgage of any rail facilities or property or any part thereof. Such trust indenture or agreement or resolution providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants providing for the repossession and sale by the Authority or any trustees under any trust indenture or agreement of any rail facilities, or part thereof, upon any default under the lease or sale of such rail facilities, setting forth the duties of the Authority in relation to the acquisition of property and the planning, development, acquisition, construction, rehabilitation, establishment, improvement, extension, enlargement, maintenance, repair, operation, and insurance of the rail facilities in connection with which such bonds shall have been authorized; the amounts of rates, rents, fees, and other charges to be charged; the collection of such rates, rents, fees, and other charges; the custody, safeguarding, and application of all moneys; and conditions or limitations with respect to the issuance of additional bonds. It is lawful for any national bank with its main office in the Commonwealth or any other state or any bank or trust company incorporated under the laws of the Commonwealth or another state that may act as depository of the proceeds of bonds or of revenues to furnish such indemnifying bonds or to pledge such securities as may be required by the Authority. Any such trust indenture or agreement or resolution may set forth the rights of action by bondholders. In addition to the foregoing, any such trust indenture or agreement or resolution may contain such other provisions as the Authority may deem reasonable and proper for the security of the bondholders, including, without limitation, provisions for the assignment to a corporate trustee or escrow agent of any rights of the Authority in any project owned by, or leases or sales of any rail facilities made by, the Authority. All expenses incurred in carrying out the provisions of such trust indenture or agreement or resolution or other agreements relating to any rail facilities, including those to which the Authority may not be a party, may be treated as a part of the cost of the operation of the rail facilities.
    10. No obligation of the Authority shall be deemed to constitute a debt, or pledge of the faith and credit, of the Commonwealth or of any other political subdivision thereof but shall be payable solely from the revenues and other funds of the Authority pledged thereto, excluding revenues provided from the Commonwealth Rail Fund pursuant to § 33.2-1526.4 . All such obligations shall contain on the face thereof a statement to the effect that the Commonwealth, any political subdivision thereof, and the Authority shall not be obligated to pay the same or the interest thereon except from revenues and other funds of the Authority pledged thereto, and that neither the faith and credit nor the taxing power of the Commonwealth or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such obligations.
    11. Any bonds or refunding bonds issued under the provisions of this article and any transfer of such bonds shall at all times be free from Commonwealth and local taxation. The interest on the bonds and any refunding bonds or bond anticipation notes shall at all times be exempt from taxation by the Commonwealth and by any political subdivision thereof.
    12. Neither the directors of the Board nor any person executing the bonds shall be liable personally on the bonds by reason of the issuance thereof.
    13. Any holder of bonds issued under the provisions of this article or any of the coupons appertaining thereto, and the trustee under any trust indenture or agreement or resolution, except to the extent the rights herein given may be restricted by such trust indenture or agreement or resolution authorizing the issuance of such bonds, may either at law or in equity, by suit, action, mandamus, or other proceeding, protect and enforce any and all rights under the laws of the Commonwealth or granted hereunder or under such trust indenture or agreement or resolution and may enforce and compel the performance of all duties required by this article or by such trust indenture or agreement or resolution to be performed by the Authority or by any officer thereof, including the fixing, charging, and collecting of rates, rentals, fees, and other charges.
    14. Provision may be made in the proceedings authorizing refunding bonds for the purchase of the refunded bonds in the open market or pursuant to tenders made from time to time where there is available in the escrow or sinking fund for the payment of the refunded bonds a surplus in an amount to be fixed in such proceedings.
      1. The Authority is hereby authorized to apply for, execute, and/or endorse applications submitted by private entities or political subdivisions of the Commonwealth to obtain federal credit assistance for one or more qualifying transportation infrastructure projects or facilities to be developed pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.). Any such application, agreement, and/or endorsement shall not financially obligate the Commonwealth or be construed to implicate the credit of the Commonwealth as security for any such federal credit assistance. O. 1. The Authority is hereby authorized to apply for, execute, and/or endorse applications submitted by private entities or political subdivisions of the Commonwealth to obtain federal credit assistance for one or more qualifying transportation infrastructure projects or facilities to be developed pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.). Any such application, agreement, and/or endorsement shall not financially obligate the Commonwealth or be construed to implicate the credit of the Commonwealth as security for any such federal credit assistance.
      2. The Authority is hereby authorized to pursue or otherwise apply for, and execute, an agreement to obtain financing using a federal credit instrument for project financings otherwise authorized by this article or other acts of assembly.

    History. 2020, cc. 1230, 1275.

    § 33.2-295. Deposit and investment of funds.

    Bonds issued by the Authority under the provisions of this article are hereby made securities in which all public officers and public bodies of the Commonwealth and its political subdivisions, and all insurance companies, trust companies, banking associations, investment companies, executors, administrators, trustees, and other fiduciaries may properly and legally invest funds, including capital in their control or belonging to them. Such bonds are hereby made securities that may properly and legally be deposited with and received by any state or municipal officer or any agency or political subdivision of the Commonwealth for any purpose for which the deposit of bonds or obligations of the Commonwealth is now or may hereafter be authorized by law.

    History. 2020, cc. 1230, 1275.

    § 33.2-296. Revenues of the Authority.

    All moneys received by the Authority pursuant to this article including, without limitation, moneys received from the Commonwealth Rail Fund established pursuant to § 33.2-1526.4 , whether as proceeds from the sale of bonds or as revenues, shall be deemed to be trust funds to be held and applied solely as provided in this article. The resolution authorizing the bonds of any issue or the trust indenture or agreement or resolution securing such bonds shall provide that any officer with whom, or any bank or trust company with which, such moneys shall be deposited shall act as a trustee of such moneys and shall hold and apply the same for the purposes hereof, subject to such regulations as this article and such trust indenture or agreement or resolution may provide.

    History. 2020, cc. 1230, 1275.

    § 33.2-297. Moneys of Authority.

    All moneys of the Authority, from whatever source derived, shall be paid to the treasurer of the Authority. Such moneys shall be deposited in the first instance by the treasurer in one or more banks or trust companies, in one or more special accounts. All banks and trust companies are authorized to give such security for such deposits, if required by the Authority. The moneys in such accounts shall be paid out on the warrant or other order of such person or persons as the Authority may authorize to execute such warrants or orders.

    History. 2020, cc. 1230, 1275.

    § 33.2-298. Annual budget.

    The Authority shall prepare and submit a detailed annual operating plan and budget to the Transportation Board by February 1 of each fiscal year. The Authority shall also prepare and submit for approval any proposed capital expenditures and projects for the following fiscal year to the Transportation Board by February 1. The Transportation Board shall have until May 30 to approve or deny any capital expenditures, and, in the event the Transportation Board has not approved or denied the Authority’s proposed capital expenditures by such deadline, such expenditures shall be deemed approved. The operating plan and budget shall be in a form prescribed by the Transportation Board and shall include information on expenditures, indebtedness, and other information as prescribed by the Transportation Board.

    History. 2020, cc. 1230, 1275.

    § 33.2-299. Recordkeeping; audits.

    1. The accounts and records of the Authority showing the receipt and disbursement of funds from whatever source derived shall be in a form prescribed by governmental generally accepted accounting principles. Such accounts shall correspond as nearly as possible to the accounts and records for such matters maintained by enterprises.
    2. The accounts of the Authority shall be audited annually by a certified public accounting firm selected by the Auditor of Public Accounts with the assistance of the Authority through a process of competitive negotiation. The cost of such audit and review shall be borne by the Authority.
    3. The Authority shall submit an annual report to the Governor and the General Assembly on or before November 1 of each year. Such report shall contain the audited financial statements of the Authority for the fiscal year ending the preceding June 30.
    4. The Board, the General Assembly, or the Governor may at any time request that the Office of the State Inspector General, created pursuant to § 2.2-308 , review any area of the Authority’s finances or operations.

    History. 2020, cc. 1230, 1275.

    § 33.2-299.1. Exemption of Authority from personnel and procurement procedures.

    The provisions of the Virginia Personnel Act (§ 2.2-2900 et seq.) and the Virginia Public Procurement Act (§ 2.2-4300 et seq.) shall not apply to the Authority in the exercise of any power conferred under this article. The Authority shall develop and adopt rules governing their procurement procedures. However, such rules adopted for the procurement of professional services with a cost expected to exceed $80,000 shall be consistent with the provisions of §§ 2.2-4302.2 , 2.2-4303.1 and 2.2-4303.2 . The initial rules shall be adopted by the Board no later than six months after the first meeting of the Board.

    History. 2020, cc. 1230, 1275.

    § 33.2-299.2. Police powers; Authority rules and regulations.

    The Authority is empowered to adopt and enforce reasonable rules and regulations governing any and all activities using Authority property. Such rules and regulations shall have the force and effect of law after publication one time in full in a newspaper of general circulation in the county or city where the affected property is located.

    History. 2020, cc. 1230, 1275.

    § 33.2-299.3. Governmental function; exemption from taxation.

    The exercise of the powers granted by this article will be in all respects for the benefit of the people of the Commonwealth, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions, and as the operation and maintenance of rail facilities by the Authority and the undertaking of activities in the furtherance of the purposes of the Authority will constitute the performance of the essential governmental functions, the Authority shall not be required to pay any taxes or assessments upon any rail facilities or any property acquired or used by the Authority under the provisions of this article or upon the income therefrom, including sales and use taxes on the tangible personal property used in the operations of the Authority. The exemption hereby granted shall not be construed to extend to persons conducting on the premises of any rail facility businesses for which local or state taxes would otherwise be required.

    History. 2020, cc. 1230, 1275.

    § 33.2-299.4. Cooperation with federal agencies.

    The Authority is empowered to cooperate with, and act as an agent for, the United States or any agency, department, corporation, or instrumentality thereof in the maintenance, development, improvement, and use of rail facilities of the Commonwealth and in any other matter within the purposes, duties, and powers of the Authority.

    History. 2020, cc. 1230, 1275.

    § 33.2-299.5. Continuing responsibilities of the Transportation Board and the Department.

    The Transportation Board and the Department shall cooperate and assist the Authority in the accomplishment of its purposes as set forth in § 33.2-288 .

    History. 2020, cc. 1230, 1275.

    § 33.2-299.6. Dissolution of Authority.

    Whenever the Board determines that the purposes for which it was created have been substantially fulfilled or are impractical or impossible to accomplish and that all bonds theretofore issued and all other obligations therefore incurred by the Authority have been paid or that cash or a sufficient amount of United States government securities has been deposited for their payment, and upon the approval of the Governor and the General Assembly, the Board may adopt resolutions or ordinances declaring and finding that the Authority should be dissolved and that appropriate articles of dissolution shall be filed with the State Corporation Commission. Upon the filing of such articles of dissolution by the Authority, such dissolution shall become effective and the title to all funds and other property owned by the Authority at the time of such filing shall vest in the Department.

    History. 2020, cc. 1230, 1275.

    § 33.2-299.7. Exclusions from the Virginia Freedom of Information Act; proprietary records and trade secrets.

    1. Notwithstanding the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), the Authority shall keep confidential trade secrets or confidential proprietary information, not publicly available, provided by a private person or entity pursuant to a promise of confidentiality where if such information were made public, the financial interest of the private person or entity could be adversely affected. In order for trade secrets or proprietary information to be excluded from the provisions of the Virginia Freedom of Information Act, the private person or entity shall (i) invoke such exclusion upon submission of the data or other materials for which protection from disclosure is sought, (ii) identify the data or other materials for which protection is sought, and (iii) state the reason why protection is necessary.
    2. Notwithstanding the provisions of the Virginia Freedom of Information Act, the Authority shall keep confidential information submitted by a private person, entity, or other party in negotiations with the Authority, where if such information was made public prior to the execution of a business arrangement, the financial interests of bargaining positions of the public or private entity would be adversely affected.

    History. 2020, cc. 1230, 1275.

    § 33.2-299.8. Liberal construction.

    Neither this article nor anything herein contained is or shall be construed as a restriction or limitation upon any powers that the Authority might otherwise have under any laws of the Commonwealth, and this article is cumulative to any such powers. This article does and shall be construed to provide a complete, additional, and alternative method for the doing of things authorized thereby and shall be regarded as supplemental and additional to power conferred by other laws. However, except as otherwise explicitly provided herein, the issuance of bonds, notes, and other obligations and refunding bonds under the provisions of this article need not comply with the requirements of any other law of the Commonwealth applicable to the issuance of bonds, notes, and other obligations. No proceedings, notice, or approval shall be required for the issuance of any bonds, notes, and other obligations or any instrument as security therefor, except as is provided in this article.

    History. 2020, cc. 1230, 1275.

    Subtitle II. Modes of Transportation: Highways, Bridges, Ferries, Rail, and Public Transportation.

    Chapter 3. Highway Systems.

    Article 1. Interstate System.

    § 33.2-300. Power and authority of Commonwealth Transportation Board relating to the Interstate System, generally.

    The Board may plan, designate, acquire, open, construct, reconstruct, improve, maintain, discontinue, abandon, and regulate the use of the Interstate System in the same manner in which it is now or may be authorized to plan, designate, acquire, open, construct, reconstruct, improve, maintain, discontinue, abandon, and regulate the use of the primary state highway system. The Board may vacate, close, or change the location of any highway or street in the manner in which it is now authorized by law to vacate, close, or change the location of a highway in the primary state highway system. The Board has any and all other authority and power relative to the Interstate System as is vested in it relative to highways in the primary state highway system, including the right to acquire by purchase, eminent domain, grant, or dedication title to lands or rights-of-way for such interstate highways whether within or without the limits of any city or town, and in addition thereto has such other power, control, and jurisdiction necessary to comply with the provisions of the Federal-Aid Highway Act of 1956 and all acts amendatory or supplementary thereto, all other provisions of law to the contrary notwithstanding.

    History. Code 1950, § 33-36.2; 1958, c. 589; 1970, c. 322, § 33.1-49; 2014, c. 805.

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Turnpikes and Tollroads, § 4.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    The effect of this section and §§ 33.1-12 (5), 33.1-50, 33.1-215, and 33.1-216 is to place in the hands of highway authorities the power, and to impose upon them the duty, to so construct the interstate highway system in Virginia as to take full advantage of available federal funds. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971).

    Cost of relocation of facilities of a utility. —

    This section and §§ 33.1-12 (5), 33.1-50, 33.1-215, and 33.1-216 do not create an exception to the common-law rule, recognized in Virginia, imposing upon a utility the burden of relocating facilities at its own cost when it occupies highway property under mere licenses. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971).

    § 33.2-301. Contracts for maintenance of components of Interstate System.

    All maintenance on components of the Interstate System, excluding frontage roads, shall be carried out under contracts awarded by the Commissioner of Highways or the Board pursuant to §§ 33.2-209 , 33.2-214 , and 33.2-221 , except for instances where good and sufficient reasons for not doing so have been shown in advance in writing by the Commissioner of Highways to the Board and to the Chairmen of the House Committee on Transportation, the House Committee on Appropriations, the House Committee on Finance, the Senate Committee on Transportation, and the Senate Committee on Finance and Appropriations. Nothing in this section shall be construed to prevent the Department from performing emergency work at any time on the Interstate System with its own employees or agents or to assume the maintenance responsibilities of a contractor who has been determined to be in default or as a result of a contract termination.

    History. 2006, c. 782, § 33.1-49.1; 2012, cc. 729, 733; 2014, c. 805.

    Editor’s note.

    Acts 2006, c. 782, cl. 2, which enacted the prior provision, provides: “That the provisions of this act shall not apply to asset management or maintenance services agreed to as part of the initial provisions of an interim or comprehensive agreement entered into for the construction or reconstruction of or improvements to any highway pursuant to the Public-Private Transportation Act of 1995 (§ 56-556 et seq.) of the Code of Virginia.”

    The Virginia Code Commission authorized the substitution of “Senate Committee on Finance and Appropriations” for “Senate Committee on Finance.” March 10, 2021.

    § 33.2-302. Funds for establishment and maintenance of Interstate System, generally.

    The highways embraced within the Interstate System shall be established, constructed, and maintained by the Commonwealth under the direction and supervision of the Commissioner of Highways with state funds as may be appropriated and made available for such purposes, together with such appropriations as may be made by any locality in the Commonwealth and funds as are now available or that may be derived from the federal government for such purposes. State funds for repayment of federal construction advances may be raised by toll facilities, if approved by the Federal Highway Administration.

    History. Code 1950, § 33-36.3; 1958, c. 589; 1970, c. 322, § 33.1-50; 1982, c. 261; 2014, c. 805.

    § 33.2-303. Portions of Interstate System within cities and towns.

    Whenever any portion of the Interstate System that is to be constructed within cities or towns is to occupy existing streets, the right-of-way in the street shall be occupied by the Interstate System free of cost to the Commonwealth.

    When the Interstate System extending into or through cities or towns has been constructed to the required standards, streets or highways occupied thereby shall cease to be maintained and controlled by the governing bodies of such cities or towns, and such cities and towns shall thereafter be relieved from all civil liability arising from the physical condition of such streets or highways. Such streets and highways shall not be considered as mileage for which the Board is required to make payment to such cities or towns by any other provision of law.

    Nothing contained in this article shall relieve the cities or towns through which any portion of the Interstate System is projected from the responsibility for the preservation of public peace, prevention of crime, apprehension of criminals, protection of the rights of persons and property, and enforcement of the laws of the Commonwealth, and the regulations enacted pursuant thereto, nor shall anything contained herein be considered as a waiver by the Commonwealth of its immunity from liability for tort.

    History. Code 1950, § 33-36.5; 1958, c. 589; 1970, c. 322, § 33.1-51; 2014, c. 805.

    § 33.2-304. Transfer of highways, bridges, and streets from the secondary and primary state highway systems to Interstate System.

    The Board may transfer such highways, bridges, and streets as it deems proper from the primary or secondary state highway system to the Interstate System. Upon such transfer, the highways, bridges, and streets so transferred shall become for all purposes parts of the Interstate System and thereafter cease being parts of the primary or secondary state highway system. The Board may add such highways, bridges, and streets as it deems proper to the Interstate System without limitations as to mileage.

    History. Code 1950, § 33-36.6; 1958, c. 589; 1970, c. 322, § 33.1-52; 2014, c. 805.

    § 33.2-305. Transfer of highways, bridges, and streets from Interstate System to primary or secondary state highway system.

    The Board may transfer such highways, bridges, and streets as it deems proper from the Interstate System to the primary or secondary state highway system without limitations as to mileage. Upon such transfer, the highways, bridges, and streets so transferred shall become for all purposes parts of the primary or secondary state highway system and thereafter cease being parts of the Interstate System.

    History. Code 1950, § 33-36.7; 1958, c. 589; 1970, c. 322, § 33.1-53; 2014, c. 805.

    § 33.2-306. Applicability of §§ 33.2-300 through 33.2-305 to toll projects.

    The provisions of §§ 33.2-300 through 33.2-305 shall not become effective with respect to those segments of the Interstate System constructed and financed as toll projects until the revenue bonds and the interest thereon issued on account of such toll projects have been paid or a sufficient amount for the payment of all such bonds and the interest to maturity thereon has been set aside in trust for the benefit of the respective bondholders. When the bonds and interest thereon, outstanding on account of such projects, have been paid or a sufficient amount for the payment of such bonds and the interest thereon to the maturity thereof has been so set aside in trust, and when the Board has by formal action, recorded in its minutes, determined the existence of such fact, then the provisions of §§ 33.2-300 through 33.2-308 shall fully apply to such projects.

    History. Code 1950, § 33-36.8; 1958, c. 589; 1970, c. 322, § 33.1-54; 2014, c. 805.

    § 33.2-307. Relocation or removal of utility facilities within projects on Interstate System.

    1. For the purposes of this section:“Cost of highway construction” includes the cost of relocating or removing utility facilities in connection with any project on the Interstate System within cities or towns.“Cost of relocation or removal” includes the entire amount paid by such utility properly attributable to such relocation or removal after deducting any increase in the value of the new facility and any salvage value derived from the old facility.“Facility of a utility” includes tracks, pipes, mains, conduits, cables, wires, towers, and other structures, equipment, and appliances.“Utility” includes publicly, privately, and cooperatively owned utilities.
    2. Whenever the Board determines that it is necessary that any facility of a utility in, on, under, over, or along existing streets that are to be included within any project on the Interstate System within cities or towns should be relocated or removed, the owner or operator of such facility shall relocate or remove the same in accordance with the order of the Board. The cost of such relocation or removal, including the cost of installing such facility in a new location, and the cost of any lands, or any rights or interest in lands, and any other rights required to accomplish such relocation or removal shall be ascertained and paid by the Board as a part of the cost of the project.

    History. Code 1950, § 33-36.9; 1958, c. 589; 1970, c. 322, § 33.1-55; 1972, c. 79; 1983, c. 162; 2003, c. 302; 2014, c. 805.

    CASE NOTES

    This section applies only to utility facilities located “within cities or towns.” Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971) (decided under prior law).

    The practice and policy of the Commissioner is of significance in interpreting this section. Potomac Elec. Power Co. v. Fugate, 574 F.2d 1163, 1978 U.S. App. LEXIS 11929 (4th Cir. 1978) (decided under prior law).

    § 33.2-308. Additional provisions on relocation or removal of utility facilities within projects on Interstate System.

    1. For the purposes of this section:“Cost of highway construction” includes the cost of relocating or removing utility facilities in connection with any project on the Interstate System or primary state highway system within counties.“Cost of relocation or removal” includes the entire amount paid by such utility properly attributable to such relocation or removal after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.“Facility of a utility” includes pipes, mains, storm sewers, water lines, sanitary sewers, natural gas facilities, or other structures, equipment, and appliances.
    2. Whenever the Board determines that it is necessary to relocate or remove any facility of a utility owned by (i) a county, (ii) a political subdivision of the Commonwealth or county, or (iii) a nonprofit, consumer-owned company, located in a county having a population of at least 32,000 but no more than 34,000, that (a) is exempt from income taxation under § 501(c)(3) of the Internal Revenue Code, (b) is organized to provide suitable drinking water, (c) has no assistance from investors, (d) does not pay dividends, and (e) does not sell stock to the general public, or storm sewers, water lines, natural gas facilities, or sanitary sewers owned by a city and extending into any county in, on, under, over, or along existing highways that are to be included within any project on the Interstate System or the primary state highway system within any county, the county or political subdivision of the Commonwealth or county, consumer-owned company, or city shall relocate or remove the same in accordance with the order of the Board. The cost of such relocation or removal including the cost of installing such facility in a new location, and the cost of any lands, or any rights or interest in lands, and any other rights required to accomplish such relocation or removal shall be ascertained and paid by the Board as a part of the cost of the project.

    History. Code 1950, § 33-36.10; 1964, c. 353; 1970, c. 322, § 33.1-56; 1989, c. 46; 1998, c. 219; 1999, c. 942; 2014, c. 805.

    CASE NOTES

    This section applies only to publicly-owned facilities located in counties. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971) (decided under prior law).

    § 33.2-309. Tolls for use of Interstate System components.

    1. Subject to the limitations provided in § 33.2-119 and in accordance with all applicable federal and state statutes and requirements, the Board may impose and collect tolls from all classes of vehicles in amounts established by the Board for the use of any component of the Interstate System within the Commonwealth.
    2. The toll facilities authorized by this section shall be subject to the provisions of federal law for the purpose of tolling motor vehicles to finance interstate construction and reconstruction, promote efficiency in the use of highways, reduce traffic congestion, and improve air quality and for such other purposes as may be permitted by federal law.
    3. In order to mitigate traffic congestion in the vicinity of the toll facilities, no toll facility shall be operated without high-speed automated toll collection technology designed to allow motorists to travel through the toll facilities without stopping to make payments. Nothing in this subsection shall be construed to prohibit a toll facility from retaining means of nonautomated toll collection in some lanes of the facility. The Board shall also consider traffic congestion and mitigation thereof and the impact on local traffic movement as factors in determining the location of the toll facilities authorized pursuant to this section.
    4. The revenues collected from each toll facility established pursuant to this section shall be deposited into segregated subaccounts in the Transportation Trust Fund and may be allocated by the Board as the Board deems appropriate to:
      1. Pay or finance all or part of the costs of programs or projects, including the costs of planning, operation, maintenance, and improvements incurred in connection with the toll facility, provided that such allocations shall be limited to programs and projects that are reasonably related to or benefit the users of the toll facility. The priorities of metropolitan planning organizations, planning district commissions, local governments, and transportation corridors shall be considered by the Board in making project allocations from such revenues deposited into the Transportation Trust Fund.
      2. Repay funds from the Toll Facilities Revolving Account or the Transportation Partnership Opportunity Fund.
      3. Pay the Board’s reasonable costs and expenses incurred in the administration and management of the toll facility.

    History. 2007, c. 477, § 33.1-23.03:10; 2008, cc. 602, 838; 2014, c. 805; 2015, c. 681; 2016, c. 780; 2017, c. 836; 2018, Sp. Sess. I, c. 1.

    Editor’s note.

    Acts 2007, c. 477, cl. 2, which enacted prior similar provision, former § 33.1-23.03:10, provides: “That the provisions of this act shall not apply to Chapter 22 of Title 56 [now Chapter 18 of Title 33.2] or any payment received by the Commonwealth Transportation Board pursuant to § 33.1-23.03:9 of the Code of Virginia.”

    Acts 2016, c. 780, cl. 2, as amended by Acts 2017, c. 836, became effective May 24, 2016.

    Acts 2016, c. 780, cl. 4, as amended by Acts 2017, c. 836 and Acts 2018, Sp. Sess. I, c. 1, provides: “That the provisions of this act adding § 33.2-118 [now 33.2-119 ] to the Code of Virginia, as created by this act, and § 33.2-309 of the Code of Virginia, as amended by this act, shall become effective upon the return of the Commonwealth’s spot in the Interstate System Reconstruction and Rehabilitation Pilot Program.” On May 24, 2016, Commissioner of the Virginia Department of Transportation returned the Commonwealth’s spot in the Interstate System Reconstruction and Rehabilitation Pilot Program to the federal government. The amendment became effective May 24, 2016.

    The 2015 amendments.

    The 2015 amendment by c. 681 in subsection A, deleted “Route” preceding “81” in the second sentence; and added the third sentence.

    The 2016 amendments.

    The 2016 amendment by c. 780, as amended by Acts 2017, c. 836, in subsection A, substituted “Subject to the limitations provided in § 33.2-119 ” for “Notwithstanding any contrary provision of this title” and deleted the last three sentences which read “However, prior approval of the General Assembly shall be required prior to the imposition and collection of any toll for use of all or any portion of Interstate 81. Prior approval of the General Assembly shall also be required prior to the imposition or collection of any toll for use of Interstate 95 south of Fredericksburg pursuant to the Interstate System Reconstruction or Rehabilitation Pilot Program. Such funds so collected shall be deposited into the Transportation Trust Fund established pursuant to § 33.2-1524 , subject to allocation by the Board as provided in this section.” For effective date, see Editor’s note.

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Turnpikes and Tollroads, §§ 2, 5, 6.

    Article 2. Primary state highway system.

    § 33.2-310. Primary state highway system.

    The primary state highway system shall be constructed and maintained by the Commonwealth under the direction and supervision of the Board and the Commissioner of Highways.

    History. Code 1950, § 33-23; 1970, c. 322, § 33.1-25; 2014, c. 805.

    § 33.2-311. Certain highways in parks included in primary state highway system.

    All highways in state parks that provide connections between highways, in either the primary or secondary state highway system, outside such parks and recreation centers within such parks shall continue to be portions of the primary state highway system.

    History. Code 1950, § 33-24; 1970, c. 322, § 33.1-31; 1986, c. 498; 1989, c. 656; 2014, c. 805.

    § 33.2-312. Maintenance of highways, bridges, and toll facilities within state parks.

    The Commissioner of Highways may maintain all highways, bridges, and toll facilities within the boundaries of any state park established by and under the control of the Department of Conservation and Recreation. For the purpose of maintaining the highways in any such park, the Commissioner of Highways may expend funds under his control and available for expenditure upon the maintenance of highways in the secondary state highway system in the county or counties in which such state park is located. This section shall not affect the jurisdiction, control, and right to establish such highways, bridges, and toll facilities that are now vested in the Department of Conservation and Recreation.

    All roads, bridges, and toll facilities constructed by way of revenue bonds issued by the Department of Conservation and Recreation shall operate under the terms of their establishment as a park facility, notwithstanding the right of the Commissioner of Highways to use highway funds to maintain them.

    History. Code 1950, § 33-25; 1970, c. 322, § 33.1-32; 1986, c. 498; 1989, c. 656; 2014, c. 805.

    § 33.2-313. Maintenance of highways at state institutions.

    The Commissioner of Highways may, when requested by the governing body of a state institution, assume the maintenance of any highway within the grounds of such state institution that has been established and constructed by such institution to standards acceptable to the Commissioner of Highways. Any such highways accepted for maintenance by the Commissioner of Highways under the provisions of this section shall be a part of the primary state highway system, but the state institution shall continue to exercise police power over such highways.

    History. 1970, c. 322, § 33.1-33; 2014, c. 805.

    § 33.2-314. Transfer of highways, bridges, and streets from secondary to primary state highway system; additions to primary state highway system.

    1. The Board may transfer such highways, bridges, and streets as it deems proper from the secondary state highway system to the primary state highway system. Upon such transfer, the highways, bridges, and streets so transferred shall become for all purposes parts of the primary state highway system. The Board may add such highways, bridges, and streets as it deems proper to the primary state highway system. The total mileage of such highways, bridges, and streets so transferred or added by the Board shall not exceed 50 miles during any one year.
    2. When the Chief Engineer of the Department recommends that it is appropriate in connection with the completion of a construction or maintenance project to transfer highways, bridges, and streets from the secondary state highway system to the primary state highway system, the Commissioner of Highways may transfer such highways, bridges, and streets as he deems proper. Upon such transfer, the highways, bridges, and streets so transferred shall become for all purposes parts of the primary state highway system and cease being parts of the secondary state highway system.

    History. Code 1950, § 33-26; 1952, c. 17; 1970, c. 322, § 33.1-34; 2011, cc. 36, 152; 2014, c. 805.

    § 33.2-315. Transfer of highways, bridges, and streets from primary to secondary state highway system.

    1. The Board may transfer such highways, bridges, and streets as it deems proper from the primary state highway system to the secondary state highway system or, if requested by the local governing body, to the local system of roads operated by a locality receiving payments pursuant to § 33.2-319 or 33.2-366 . Upon such transfer, the highways, bridges, and streets so transferred shall become for all purposes parts of the secondary state highway system or the local system of roads operated by a locality receiving payments pursuant to § 33.2-319 or 33.2-366 . The total mileage of such highways, bridges, and streets so transferred by the Board shall not exceed 150 miles during any one year.
    2. When the Chief Engineer of the Department recommends that it is appropriate in connection with the completion of a construction or maintenance project to transfer highways, bridges, and streets from the primary state highway system to the secondary state highway system, the Commissioner of Highways may transfer such highways, bridges, and streets as he deems proper. Upon such transfer, the highways, bridges, and streets so transferred shall become for all purposes parts of the secondary state highway system and cease being parts of the primary state highway system.

    History. Code 1950, § 33-27; 1956, c. 39; 1970, c. 322, § 33.1-35; 2009, c. 476; 2011, cc. 36, 152; 2014, c. 805.

    § 33.2-316. Primary state highway system map.

    The Commissioner of Highways shall prepare and keep on file in his office for public inspection a complete map showing the routes of the primary state highway system.

    History. Code 1950, § 33-30; 1970, c. 322, § 33.1-36; 2014, c. 805.

    § 33.2-317. Establishment, construction, and maintenance exclusively by Commonwealth; funds.

    The highways embraced within the primary state highway system shall be established, constructed, and maintained exclusively by the Commonwealth under the direction and supervision of the Commissioner of Highways, with such state funds as may be appropriated and made available for such purposes, together with such appropriations as may be made by any county, district, city, or town in the Commonwealth and such funds as are available or derived from the federal government for highway building and improvement in the Commonwealth.

    History. Code 1950, § 33-31; 1970, c. 322, § 33.1-37; 2014, c. 805.

    CIRCUIT COURT OPINIONS

    Sovereign immunity barred claims. —

    In an action filed by a group of residents against various state entities and an airport authority seeking both declaratory and injunctive relief, and alleging that the transfer of a toll road and toll revenue derived therefrom from the Commonwealth defendants to the airport authority was an unlawful delegation or assignment, and an unlawful transfer of state assets and the legislative ability to tax, demurrers and pleas in bar filed against said complaint were granted, and the case was dismissed, as the doctrine of sovereign immunity barred consideration of said claims. Gray v. Va. Secy. of Transp., 74 Va. Cir. 30, 2007 Va. Cir. LEXIS 150 (Richmond Mar. 19, 2007), aff'd in part and rev'd in part, 276 Va. 93 , 662 S.E.2d 66, 2008 Va. LEXIS 73 (2008) (decisions under prior law).

    OPINIONS OF THE ATTORNEY GENERAL

    Historic structures. —

    Virginia Department of Transportation is not required to repair and maintain an historic brick retaining wall located along the highway, and any decision about this matter is within VDOT’s sole administrative discretion. If VDOT makes a discretionary decision in the future to repair the wall, and federal funds or federal permits are involved, any decisions to require compliance with federal requirements for historic preservation must be made by the Federal Highway Administration. See opinion of Attorney General to The Honorable J. Randall Minchew, Member, Virginia House of Delegates, 16-058, 2016 Va. AG LEXIS 28 (11/10/16).

    § 33.2-318. Bypasses through or around cities and towns.

    1. The Commissioner of Highways may acquire by gift, purchase, exchange, condemnation, or otherwise such lands or interest therein necessary or proper for the purpose and may construct and improve thereon such bypasses or extensions and connections of the primary state highway system through or around cities and towns as the Board deems necessary for the uses of the primary state highway system, provided that the respective cities and towns with populations of 3,500 or more by action of their governing bodies agree to participate in all costs of such construction and improvement, including the cost of rights-of-way, on that portion of any such bypass or extension that is located within any such city or town. The maintenance of that portion of a bypass or extension located within a city or town shall be borne by the city or town. However, the Board shall contribute to such maintenance in accordance with the provisions of law governing its contribution to the maintenance of highways, bridges, and streets in such cities and towns. The location, form, and character of informational, regulatory, and warning signs, curb and pavement, or other markings and traffic signals installed or placed by any public authority shall be subject to the approval of the Commissioner of Highways. At both ends of bypasses through or around cities and towns, the Commissioner of Highways shall erect and maintain adequate directional signs of sufficient size and suitable design to indicate clearly the main route leading directly into such cities and towns.
    2. Notwithstanding the provisions of subsection A, in any case in which a municipality refuses to contribute to the construction of a bypass or an extension or connection of the primary state highway system within said municipality, the Commissioner of Highways may construct such bypass or extension and connection without any contribution by the municipality when the Board determines that such bypass or extension and connection is primarily rural in character and that the most desirable and economical location is within the municipality. Any bypass or extension and connection built under this subsection shall be maintained by the Commissioner of Highways as a part of the primary state highway system, and the municipality shall receive no payment for such bypass or extension and connection under § 33.2-319 .
    3. All the provisions of general law relating to the exercise of eminent domain by the Commissioner of Highways are applicable to such bypasses, extensions, and connections of the primary state highway system.
    4. The Board may expend out of funds appropriated to the Board and allocated to an applicable project under § 33.2-358 , 33.2-370 , or 33.2-371 such funds as may be necessary to carry out the provisions of this section.

    History. Code 1950, § 33-35; 1964, c. 258; 1970, c. 322, § 33.1-39; 1977, c. 578; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 in subsection A deleted “in accordance with the provisions of § 33.2-348 ” following “bodies agree to participate”; in subsection D substituted “to the Board and allocated to an applicable project under § 33.2-358 , 33.2-370 , or 33.2-371 such funds” for “to the Board under subsection B and subdivision C 1 of § 33.2-358 such funds”; and made a related change.

    § 33.2-319. Payments to cities and certain towns for maintenance of certain highways.

    1. The Commissioner of Highways, subject to the approval of the Board, shall make payments for maintenance, construction, or reconstruction of highways to all cities and towns eligible for funds under this section. Such payments, however, shall only be made if those highways functionally classified as principal and minor arterial roads are maintained to a standard satisfactory to the Department. Whenever any city or town qualifies under this section for allocation of funds, such qualification shall continue to apply to such city or town regardless of any subsequent change in population and shall cease to apply only when so specifically provided by an act of the General Assembly.Funds are allocated to urban highways in (i) all towns that have a population of more than 3,500 according to the last preceding United States census; (ii) all towns that, according to evidence satisfactory to the Board, have attained a population of more than 3,500 since the last preceding United States census; (iii) Chase City, Elkton, Grottoes, Narrows, Pearisburg, and Saltville, which, on June 30, 1985, maintained certain streets under former § 33.1-80 as then in effect; (iv) all cities regardless of their populations; and (v) the Towns of Altavista, Dublin, Lebanon, and Wise.
    2. No payments shall be made to any such city or town unless the portion of the highway for which such payment is made either (i) has (a) an unrestricted right-of-way at least 50 feet wide and (b) a hard-surface width of at least 30 feet; (ii) has (a) an unrestricted right-of-way at least 80 feet wide, (b) a hard-surface width of at least 24 feet, and (c) approved engineering plans for the ultimate construction of an additional hard-surface width of at least 24 feet within the same right-of-way; (iii)(a) is a cul-de-sac, (b) has an unrestricted right-of-way at least 40 feet wide, and (c) has a turnaround that meets applicable standards set by the Department; (iv) either (a) has been paved and has constituted part of the primary or secondary state highway system prior to annexation or incorporation or (b) has constituted part of the secondary state highway system prior to annexation or incorporation and is paved to a minimum width of 16 feet subsequent to such annexation or incorporation and with the further exception of streets or portions thereof that have previously been maintained under the provisions of § 33.2-339 or 33.2-340 ; (v) was eligible for and receiving such payments under the laws of the Commonwealth in effect on June 30, 1985; (vi) is a street established prior to July 1, 1950, that has an unrestricted right-of-way width of not less than 30 feet and a hard-surface width of not less than 16 feet; (vii) is a street functionally classified as a local street that was constructed on or after January 1, 1996, and that at the time of approval by the city or town met the criteria for pavement width and right-of-way of the then-current design standards for subdivision streets as set forth in regulations adopted by the Board; (viii) is a street previously eligible to receive street payments that is located in the City of Norfolk or the City of Richmond and is closed to public travel, pursuant to legislation enacted by the governing body of the locality in which it is located, for public safety reasons, within the boundaries of a publicly funded housing development owned and operated by the local housing authority; or (ix) is a local street, otherwise eligible, containing one or more physical protuberances placed within the right-of-way for the purpose of controlling the speed of traffic.However, the Commissioner of Highways may waive the requirements as to hard-surface pavement or right-of-way width for highways where the width modification is at the request of the governing body of the locality and is to protect the quality of the affected locality’s drinking water supply or, for highways constructed on or after July 1, 1994, to accommodate some other special circumstance where such action would not compromise the health, safety, or welfare of the public. The modification is subject to such conditions as the Commissioner of Highways may prescribe.
    3. For the purpose of calculating allocations and making payments under this section, the Department shall divide affected highways into two categories, which shall be distinct from but based on functional classifications established by the Federal Highway Administration: (i) principal and minor arterial roads and (ii) collector roads and local streets. Payments made to affected localities shall be based on the number of moving-lane-miles of highways or portions thereof available to peak-hour traffic in that locality.
    4. Any city converting an existing moving-lane that qualifies for payments under this section to a transit-only lane after July 1, 2014, shall remain eligible for such payments but shall not receive additional funds as a result of such conversion. Any city or town converting an existing moving-lane that qualifies for payments under this section to a bicycle-only lane after July 1, 2014, shall remain eligible for such payments, provided that (i) the number of moving-lane-miles converted is not more than 50 moving-lane-miles or three percent of the city’s or town’s total number of moving-lane-miles on July 1, 2014, whichever is less, and (ii) prior to any such conversion, the city or town certifies that the conversion design has been assessed by a professional engineer licensed in the Commonwealth pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 and that the assessment has demonstrated that (a) the level of service of the street to be converted will not be reduced or if it will be reduced that the associated roadway network will retain adequate capacity to meet current and future mobility needs of all users and (b) the conversion has been designed in accordance with the National Association of City Transportation Officials’ Urban Bikeway Design Guide. Any such city or town shall not receive additional funds as a result of such conversion to a bicycle-only lane and shall annually expend funds on road and street maintenance and operations that are at least equal to funds spent on road and street maintenance and operations in the year prior to such conversion. For purposes of this subsection, “level of service” has the meaning provided in the Transportation Research Board’s Highway Capacity Manual.
    5. The Department shall recommend to the Board an annual rate per category to be computed using the base rate of growth planned for the Department’s Highway Maintenance and Operations program. The Board shall establish the annual rates of such payments as part of its allocation for such purpose, and the Department shall use those rates to calculate and put into effect annual changes in each qualifying city’s or town’s payment under this section.The payments by the Department shall be paid in equal sums in each quarter of the fiscal year, and payments shall not exceed the allocation of the Board.
    6. The chief administrative officer of the city or town receiving these funds shall make annual categorical reports of expenditures to the Department, in such form as the Board shall prescribe, accounting for all expenditures, certifying that none of the money received has been expended for other than maintenance, construction, or reconstruction of the streets, and reporting on their performance as specified in subsection B of § 33.2-352 . Such reports shall be included in the scope of the annual audit of each municipality conducted by independent certified public accountants.

    History. 1985, c. 42, § 33.1-41.1; 1991, c. 353; 1992, c. 267; 1994, c. 459; 1996, cc. 149, 821; 1997, c. 49; 1998, c. 441; 2000, c. 97; 2002, c. 673; 2004, c. 118; 2007, c. 813; 2011, cc. 434, 493; 2014, c. 805; 2015, cc. 684, 722; 2017, c. 534; 2020, c. 645.

    Cross references.

    As to creation of urban transportation service districts, see § 15.2-2403.1 .

    Editor’s note.

    Acts 2015, c. 722, cl. 3 provides: “That the Secretary of Transportation shall report to the Chairmen of the House and Senate Transportation Committees by December 1, 2015, on an appropriate formula or allocation for the maintenance of bicycle-only lanes and how such conversion may reduce congestion, increase commuting options, and improve safety, mobility, and accessibility.”

    The 2015 amendments.

    The 2015 amendment by c. 684 in the first paragraph, substituted “eligible for funds under this section” for “eligible for allocation of construction funds for urban highways under § 33.2-362” in the first sentence; deleted “All allocations made prior to July, 1 2001, to cities and towns meeting the criteria of the foregoing provisions of this section are hereby confirmed” following “act of the General Assembly”; added the second paragraph; substituted “these funds” for “this fund” in the eighth paragraph, and made stylistic changes.

    The 2015 amendment by c. 722 added the last sentence to the fourth paragraph.

    The 2017 amendments.

    The 2017 amendment by c. 534 added the subsection designations; in the first paragraph of subsection B, redesignated former clauses (a) through (i) as (i) through (ix); in subsection C, redesignated clauses (A) and (B) as (i) and (ii); and added the last three sentences in subsection D.

    The 2020 amendments.

    The 2020 amendment by c. 645, inserted “Dublin” in subsection A in the second paragraph.

    § 33.2-320. Incorporation into primary state highway system of connecting streets and highways in certain other cities and towns.

    The Board may, by and with the consent of the Governor and the governing body of any city or town having a population of 3,500 or less, incorporate in the primary state highway system such streets and highways or portions thereof in such city or town as may in its judgment be best for the handling of traffic through such city or town from or to any highway in the primary state highway system and may eliminate any of such streets or highways or portions thereof from the primary state highway system. Every such action of the Board incorporating any such street or highway or portion thereof in the primary state highway system or eliminating it therefrom shall be recorded in its minutes.

    Any such street or highway or portion thereof in any such city or town so incorporated in the primary state highway system shall be subject to the rules, regulations, and control of the state highway authorities as are other highways in the primary state highway system. But such city or town shall be obligated to pay the maintenance, construction, and reconstruction costs of such streets or highways or portions thereof so incorporated in the primary state highway system in excess of the amounts authorized to be spent by the Commissioner of Highways on such streets or highways.

    Every provision in the charter of any such city or town insofar as it is in conflict with this section is hereby repealed.

    The Commissioner of Highways may permit such city or town to maintain any such street or highway or portion thereof incorporated in the primary state highway system and may reimburse such city or town up to such amount as he is authorized to expend on the maintenance of such street or highway or portion thereof.

    History. Code 1950, § 33-35.3; 1964, c. 256; 1970, c. 322, § 33.1-42; 2014, c. 805.

    OPINIONS OF THE ATTORNEY GENERAL

    Highway maintenance. —

    Former § 33.1-42 [now § 33.2-320 ], by its express terms, allows a town, with the consent of the Commissioner of Highways, to maintain those roads in the town that are incorporated in the State Highway System, but not those that are part of the secondary system of state highways. The statute further allows the town to be reimbursed up to the amount the Commissioner is authorized to expend for such street maintenance. See opinion of Attorney General to Jason J. Ham, Esquire, Town Attorney for the Town of New Market, 14-013, 2014 Va. AG LEXIS 23 (7/10/14).

    § 33.2-321. Agreements between Commonwealth Transportation Board and certain counties for operation of certain devices on state highways.

    The Commissioner of Highways is empowered to enter into agreements with the governing bodies of counties that have withdrawn or elect to withdraw from the secondary state highway system pursuant to § 11 of Chapter 415 of the Acts of Assembly of 1932, upon such terms as may be agreeable between the parties, in order to authorize such counties to install, maintain, and control traffic signals, parking meters, lane-use control signals, and other traffic control devices at specific locations on the primary or secondary state highway system within such counties. Such counties and the Commissioner of Highways shall have the authority to do all things reasonable or convenient to effectuate the purposes of this section.

    History. 1977, c. 175, § 33.1-46.3; 2014, c. 805; 2015, c. 256.

    The 2015 amendments.

    The 2015 amendment by c. 256 substituted “counties that have withdrawn or elect to withdraw from the secondary state highway system pursuant to § 11 of Chapter 415 of the Acts of Assembly of 1932” for “Arlington and Henrico Counties” in the first sentence.

    § 33.2-322. Counties may perform certain maintenance.

    Any county may enter into an agreement with the Department to permit the county to landscape and maintain any or all medians and other nontraveled portions of primary highways located in the county.

    History. 1980, c. 147, § 33.1-46.4; 2014, c. 805.

    Editor’s note.

    Former § 33.1-46.4, from which this section was derived, was enacted as § 33.1-75.3 by Acts 1980, c. 147, and subsequently renumbered as § 33.1-46.4 by the Virginia Code Commission.

    § 33.2-323. Approval of markings and traffic lights erected by towns.

    Notwithstanding any provision of law contrary to this section, all markings and traffic lights installed or erected by towns on the primary highways maintained by the Department shall first be approved by the Commissioner of Highways.

    History. Code 1950, § 33-36; 1970, c. 322, § 33.1-47; 2014, c. 805.

    CASE NOTES

    Aim in adopting traffic devices manual. —

    Nothing inherent in the authority invoked by the Board when it adopted the Manual on Uniform Traffic Control Devices (MUTCD) as a standard suggests that railroads would be relieved of their responsibility to discover especially hazardous crossings and to erect lights and other appropriate protective devices at such crossings. Rather, the adoption of MUTCD seems to have been aimed principally at setting standards to make highway safety measures implemented by local agencies consistent with those implemented by state agencies. Chandler v. National R.R. Passenger Corp., 882 F. Supp. 533, 1995 U.S. Dist. LEXIS 4344 (E.D. Va. 1995) (decided under prior law).

    Article 3. Secondary State Highway System.

    § 33.2-324. Secondary state highway system; composition.

    The secondary state highway system shall consist of all of the public highways, causeways, bridges, landings, and wharves in the counties of the Commonwealth not included in the primary state highway system. The secondary state highway system shall include such highways and community roads leading to and from public school buildings, streets, causeways, bridges, landings, and wharves in towns having a population of 3,500 or less according to the United States census of 1920, and in all towns having such a population incorporated since 1920, that constitute connecting links between highways in the secondary state highway system in the counties and between highways in the secondary state highway system and highways in the primary state highway system, not to exceed two miles in any one town. If in any such town that is partly surrounded by water less than two miles of the highways and streets therein constitute parts of the secondary state highway system, the Board shall, upon the adoption of a resolution by the governing body of such town designating for inclusion in the secondary state highway system certain highways and streets in such town not to exceed a distance of two miles, less the length of such highways and streets in such town that constitute parts of the secondary state highway system, accept and place in the secondary state highway system such additional highways and streets.

    History. Code 1950, § 33-44; 1970, c. 322, § 33.1-67; 2014, c. 805.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    The purpose of this article was to relieve the county taxpayer of the cost of construction and maintenance of the county roads. County of Henrico v. City of Richmond, 177 Va. 754 , 15 S.E.2d 309, 1941 Va. LEXIS 258 (1941).

    Effect of withdrawal of county from secondary system. —

    The fact that a county elected to withdraw from the operation of § 33.1-67 et seq., and operate its own system of roads, does not render the county liable for torts caused by their negligent construction and maintenance. Mann v. Arlington County Bd., 199 Va. 169 , 98 S.E.2d 515, 1957 Va. LEXIS 176 (1957).

    Change of grade of secondary road. —

    See Anderson v. Stuarts Draft Water Co., 197 Va. 36 , 87 S.E.2d 756, 1955 Va. LEXIS 192 (1955).

    § 33.2-325. Certain school roads in secondary state highway system.

    All roads leading from the state highways, either primary or secondary, to public schools in the counties of the Commonwealth to which school buses are operated shall continue to constitute portions of the secondary state highway system insofar as these roads lead to or are on school property and as such shall be improved and maintained.

    History. Code 1950, § 33-45; 1952, c. 505; 1964, c. 380; 1970, c. 322, § 33.1-68; 2014, c. 805.

    § 33.2-326. Control, supervision, and management of secondary state highway system components.

    1. The control, supervision, management, and jurisdiction over the secondary state highway system shall be vested in the Department, and the maintenance and improvement, including construction and reconstruction, of such secondary state highway system shall be by the Commonwealth under the supervision of the Commissioner of Highways. The boards of supervisors or other governing bodies of the counties shall have no control, supervision, management, or jurisdiction over such public highways, causeways, bridges, landings, and wharves constituting the secondary state highway system. Except as otherwise provided in this article, the Board shall be vested with the same powers, control, and jurisdiction over the secondary state highway system in the counties and towns of the Commonwealth, and such additions as may be made, as were vested in the boards of supervisors or other governing bodies of the counties on June 21, 1932, and in addition thereto shall be vested with the same power, authority, and control as to the secondary state highway system as is vested in the Board in connection with the primary state highway system.
    2. Nothing in this chapter shall be construed as requiring the Department, when undertaking improvements to any secondary state highway system component or any portion of any such component, to fully reconstruct such component or portion thereof to bring it into compliance with all design and engineering standards that would be applicable to such component or portion thereof if the project involved new construction.

    History. Code 1950, § 33-46; 1970, c. 322, § 33.1-69; 2008, Sp. Sess. II, c. 3; 2014, c. 805.

    Cross references.

    As to powers of local service districts, see § 15.2-2403 .

    Law Review.

    For note, “Virginia Subdivision Law: An Unreasonable Burden on the Unwary,” see 34 Wash. & Lee L. Rev. 1223 (1977).

    OPINIONS OF THE ATTORNEY GENERAL

    Reclamation of ownership of road. —

    The Attorney General declined to issue an opinion as to whether the Department of Transportation, should it reclaim ownership of a road, was required to use the original roadbed or if it could condemn that portion of the road which no longer followed the original roadbed as the Department of Transportation has exclusive jurisdiction over all roads in the secondary system of state highways. See opinion of Attorney General to The Honorable H. Morgan Griffith, Member, House of Delegates, 99-091 (1/10/00) (decided under prior law).

    § 33.2-327. Design standards for secondary state highway system components.

    For urban and urban development areas in localities using the urban county executive form of government, the Department shall work in conjunction with the locality and the Department of Rail and Public Transportation to review new design standards for secondary state highway system components that the locality proposes. Such standards shall (i) be based on the American Association of State Highway and Transportation Officials (AASHTO) A Policy on Geometric Design of Highways and Streets and other publications applicable to urban areas; (ii) set forth a design methodology that should be used in the affected urban and urban development areas; (iii) allow for the efficient movement of transit and other vehicles through these areas; (iv) accommodate safe pedestrian and bicyclist movement; (v) accommodate high density urban development; (vi) encourage user-friendly access to transit; (vii) include stormwater management guidelines, consistent with state and local laws and regulations; and (viii) respect the character of urban areas. These design standards and methodologies are intended to facilitate approval of roadway and transportation system improvement plans in urban areas that comply with the standards. These design standards shall not contradict or be in conflict with the principles outlined in the applicable Board regulations concerning terms and conditions under which subdivision streets may be accepted into the secondary state highway system.

    Standards developed by parties as required by this section shall be submitted to the Department for final review and approval at least three months prior to the locality’s anticipated implementation date.

    History. 2010, c. 498, § 33.1-69.001; 2014, c. 805.

    § 33.2-328. Department of Transportation to install and maintain certain signs.

    Whenever so requested by the governing body of a county, the Department shall install a system of highway name signs on state-maintained highways at such time and upon such terms and conditions as may be mutually agreed to between the county and the Commissioner of Highways.

    The Department shall install, using state forces or contract, the initial signing system, and the county shall be responsible for continuing maintenance of the signs. Supply of the signs by the Department, either by manufacture or purchase, and initial installation shall be paid for from funds available to the Department for highway maintenance.

    No highway funds shall be used by the county for the cost of maintaining the signing system.

    History. 1993, c. 340, § 33.1-69.01; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 substituted “funds available to the Department for highway maintenance” for “appropriate secondary construction funds allocated to the county or from primary construction funds available to the Department” in the second paragraph.

    § 33.2-329. Transfer of control, etc., of landings, docks, and wharves to Department of Wildlife Resources.

    1. Notwithstanding any other provision of law, the Board may transfer the control, possession, supervision, management, and jurisdiction of landings, wharves, and docks in the secondary state highway system to the Department of Wildlife Resources, at the request or with the concurrence of the Department of Wildlife Resources. Such transfer may be by lease, agreement, or otherwise, approved by resolution of the Board, and signed by the Commissioner of Highways or his designee, for such period and upon such terms and conditions as the Board may direct.
    2. All such transfers effected prior to July 1, 1980, by lease, agreement, or otherwise, from the Department to the Department of Wildlife Resources and all regulations of the Department of Wildlife Resources controlling the use of such facilities shall be and are hereby declared valid in every respect.

    History. 1980, c. 301, § 33.1-69.1; 2014, c. 805; 2020, c. 958.

    The 2020 amendments.

    The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” wherever it appears.

    § 33.2-330. Relocation or removal of utility facilities within secondary state highway system construction projects.

    1. As used in this section:“Cost of highway construction” includes the cost of relocating or removing utility facilities in connection with any project on the secondary state highway system.“Cost of relocation or removal” includes the entire amount paid by such utility properly attributable to such relocation or removal after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.“Facility of a utility” includes tracks, pipes, mains, conduits, cables, wires, towers, and other structures, equipment, and appliances.“Utility” includes utilities owned by a county, city, town, or public authority, and nonprofit, consumer-owned company located in a county having a population of at least 30,000 but no more than 34,000 that (i) is exempt from income taxation under § 501(c)(3) of the Internal Revenue Code, (ii) is organized to provide suitable drinking water, (iii) has no assistance from investors, (iv) does not pay dividends, and (v) does not sell stock to the general public.
    2. Whenever it is necessary that the facility of a utility in, on, under, over, or along an existing highway that is to be included within any construction project on the secondary state highway system should be relocated or removed, the owner or operator of such facility shall relocate or remove the same in accordance with the order of the Board. The cost of such relocation or removal, including the cost of installing such facility in a new location, and the cost of any lands, or any rights or interest in lands, and any other rights, required to accomplish such relocation or removal shall be ascertained and paid by the Board as a part of the cost of such project.

    History. 1995, cc. 680, 688, § 33.1-69.2; 1999, c. 942; 2014, c. 805; 2015, c. 168.

    The 2015 amendments.

    The 2015 amendment by c. 168 in subsection A, substituted “30,000” for “32,000” in the definition of “Utility.”

    § 33.2-331. Annual meeting with county officers; six-year plan for secondary state highways; certain reimbursements required.

    For purposes of this section, “cancellation” means complete elimination of a highway construction or improvement project from the six-year plan.

    The governing body of each county in the secondary state highway system may, jointly with the representatives of the Department as designated by the Commissioner of Highways, prepare a six-year plan for the improvements to the secondary state highway system in that county. Each such six-year plan shall be based upon the best estimate of funds to be available to the county for expenditure in the six-year period on the secondary state highway system. Each such plan shall list the proposed improvements, together with an estimated cost of each project so listed. Following the preparation of the plan in any year in which a proposed new funding allocation is greater than $100,000, the board of supervisors or other local governing body shall conduct a public hearing after publishing notice in a newspaper published in or having general circulation in the county once a week for two successive weeks and posting notice of the proposed hearing at the front door of the courthouse of such county 10 days before the meeting. At the public hearings, which shall be conducted jointly by the board of supervisors and the representative of the Department, the entire six-year plan shall be discussed with the citizens of the county and their views considered. Following the discussion, the local governing body, together with the representative of the Department, shall finalize and officially adopt the six-year plan, which shall then be considered the official plan of the county.

    At least once in each calendar year in which a proposed new funding allocation is greater than $100,000, representatives of the Department in charge of the secondary state highway system in each county, or some representative of the Department designated by the Commissioner of Highways, shall meet with the governing body of each county in a regular or special meeting of the local governing body for the purpose of preparing a budget for the expenditure of improvement funds for the next fiscal year. The representative of the Department shall furnish the local governing body with an updated estimate of funds, and the board and the representative of the Department shall jointly prepare the list of projects to be carried out in that fiscal year taken from the six-year plan by order of priority and following generally the policies of the Board in regard to the statewide improvements to the secondary state highway system. In any year in which a proposed new funding allocation is greater than $100,000, such list of priorities shall then be presented at a public hearing duly advertised in accordance with the procedure outlined in this section, and comments of citizens shall be obtained and considered. Following this public hearing, the board, with the concurrence of the representative of the Department, shall adopt, as official, a priority program for the ensuing year, and the Department shall include such listed projects in its secondary highways budget for the county for that year.

    At least once every two years following the adoption of the original six-year plan, the governing body of each county, together with the representative of the Department, may update the six-year plan of the county by adding to it and extending it as necessary so as to maintain it as a plan encompassing six years. Whenever additional funds for secondary highway purposes become available, the local governing body may request a revision in its six-year plan in order that such plan be amended to provide for the expenditure of the additional funds. Such additions and extensions to each six-year plan shall be prepared in the same manner and following the same procedures as outlined herein for its initial preparation. Where the local governing body and the representative of the Department fail to agree upon a priority program, the local governing body may appeal to the Commissioner of Highways. The Commissioner of Highways shall consider all proposed priorities and render a decision establishing a priority program based upon a consideration by the Commissioner of Highways of the welfare and safety of county citizens. Such decision shall be binding.

    Nothing in this section shall preclude a local governing body, with the concurrence of the representative of the Department, from combining the public hearing that may be required pursuant to this section for revision of a six-year plan with the public hearing that may be required pursuant to this section for review of the list of priorities, provided that notice of such combined hearing is published in accordance with procedures provided in this section.

    All such six-year plans shall consider all existing highways in the secondary state highway system, including those in the towns located in the county that are maintained as a part of the secondary state highway system, and shall be made a public document.

    If any county cancels any highway construction or improvement project included in its six-year plan after the location and design for the project has been approved, such county shall reimburse the Department the net amount of all funds expended by the Department for planning, engineering, right-of-way acquisition, demolition, relocation, and construction between the date on which project development was initiated and the date of cancellation. To the extent that funds from secondary highway allocations have been expended to pay for a highway construction or improvement project, all revenues generated from a reimbursement by the county shall be deposited into that same county’s secondary highway allocation. The Commissioner of Highways may waive all or any portion of such reimbursement at his discretion.

    The provisions of this section shall not apply in instances where less than 100 percent of the right-of-way is available for donation for unpaved highway improvements.

    History. Code 1950; 1970, c. 322, § 33.1-70.01; 1977, c. 578; 1979, c. 64; 1981, c. 240; 1993, c. 802; 2001, cc. 105, 130; 2005, c. 645; 2011, cc. 434, 493; 2014, c. 805; 2015, c. 684; 2019, cc. 81, 400.

    Cross references.

    As to adoption of road improvements program by locality, see § 15.2-2321 .

    The 2015 amendments.

    The 2015 amendment by c. 684 deleted “pursuant to § 33.2-364 ” following “To the extent that funds from secondary highway allocations” in the seventh paragraph.

    The 2019 amendments.

    The 2019 amendments by cc. 81 and 400 are identical, and inserted “in any year in which a proposed new funding allocation is greater than $100,000” or similar language once in the second paragraph and twice in the second paragraph; in the fourth paragraph, substituted “may update” for “shall update”; and in the fifth paragraph, twice substituted “hearing that may be required pursuant to this section” for “hearing required.”

    § 33.2-332. Requesting Department of Transportation to hard-surface secondary highways; paving of certain secondary highways within existing rights-of-way; designation as Rural Rustic Road.

    1. Whenever the governing body of any county, after consultation with personnel of the Department, adopts a resolution requesting the Department to hard-surface any secondary highway in such county that carries 50 or more vehicles per day with a hard surface of width and strength adequate for such traffic volume, the Department shall give consideration to such resolution in establishing priority in expending the funds allocated to such county. The Department shall consider the paving of highways with a right-of-way width of less than 40 feet under this subsection when land is, has been, or can be acquired by gift for the purpose of constructing a hard-surface highway.
    2. Notwithstanding the provisions of subsection A, any unpaved secondary highway that carries at least 50 but no more than 750 vehicles per day may be paved or improved and paved within its existing right-of-way or within a wider right-of-way that is less than 40 feet wide if the following conditions are met:
      1. The governing body of the county in which the highway is located has requested paving of such highway as part of the six-year plan for the county under § 33.2-331 and transmitted that request to the Commissioner of Highways; and
      2. The Commissioner of Highways, after having considered only (i) the safety of such highway in its current condition and in its paved or improved condition, including the desirability of reduced speed limits and installation of other warning signs or devices; (ii) the views of the residents and owners of property adjacent to or served by such highway; (iii) the views of the local governing body making the request; (iv) the historical and aesthetic significance of such highway and its surroundings; (v) the availability of any additional land that has been or may be acquired by gift or other means for the purpose of paving such highway within its existing right-of-way or within a wider right-of-way that is less than 40 feet wide; and (vi) environmental considerations, shall grant or deny the request for the paving of such highway under this subsection.
    3. Notwithstanding the provisions of subsections A and B, the governing body of any county, in consultation with the Department, may designate a highway or highway segment as a Rural Rustic Road, provided such highway or highway segment is located in a low-density development area and has an average daily traffic volume of no more than 1,500 vehicles per day. For a highway or highway segment so designated, improvements shall utilize a paved surface width based on reduced and flexible standards that leave trees, vegetation, side slopes, and open drainage abutting the highway undisturbed to the maximum extent possible without compromising public safety. Any highway designated as a Rural Rustic Road shall be subject to § 62.1-44.15:34 . The Department, in consultation with the affected local governing body, shall first consider the paving of a highway or highway segment meeting the criteria for a Rural Rustic Road in accordance with this subsection before making a decision to pave it to another standard as set forth in this section.
    4. The Commonwealth and its agencies, instrumentalities, departments, officers, and employees acting within the scope of their duties and authority shall be immune for damages by reason of actions taken in conformity with the provisions of this section. Immunity for the local governing body of any political subdivision requesting paving under this section and the officers and employees of any such political subdivision shall be limited to that immunity provided pursuant to § 15.2-1405 .

    History. 1973, c. 360, § 33.1-70.1; 1977, c. 578; 1985, c. 440; 1997, cc. 715, 729; 1999, cc. 306, 320; 2001, cc. 355, 366; 2002, c. 414; 2003, c. 599; 2006, c. 546; 2008, c. 195; 2011, c. 400; 2013, cc. 756, 793; 2014, c. 805.

    Cross references.

    As to speed limits on designated rural rustic roads, see § 46.2-873.2 .

    Editor’s note.

    Acts 2014, cc. 276 and 704, cl. 1 provides: “In recognition that Loudoun County contains one of the largest and the highest-volume network of rural gravel roads in the Commonwealth at 280 centerline miles, and in recognition of the importance of the contribution that many of these rural gravel roads make to the preservation of the unique cultural and historic heritage of the County and of the Commonwealth, the Department of Transportation shall do the following in carrying out its duties and responsibilities to properly maintain the rural gravel road network in Loudoun County:

    “1. Coordinate with the County and with affected residents in order to better understand their specific maintenance concerns and in order to better prioritize how the Department allocates its maintenance budget to address such local concerns;

    “2. Continue, whenever practicable, to maintain rural gravel roads in traditional alignment, surface treatment, and width and protect banks, stone walls, and roadside trees in all rural, agricultural, and historic areas;

    “3. Apply the Department’s Rural Rustic Road policies in any paving program in rural, agricultural, or historic areas, unless requested otherwise by the County, and focus limited paving resources primarily on highly traveled roads in developed areas; and

    “4. Provide an annual report to the County detailing how the Department expended funds in the prior fiscal year for the maintenance of rural gravel roads in the County.”

    § 33.2-333. Emergency paving of unpaved secondary highways; notice and local concurrence.

    In the event of an emergency, an unpaved highway within the secondary state highway system shall be paved only if the following procedures are satisfied:

    1. The Commissioner of Highways shall consider the following factors in determining whether the unpaved secondary highway, as the result of an emergency, shall be paved: (i) the safety of the secondary highway in its current condition; (ii) the feasibility of restoring the unpaved highway to its functional level prior to the emergency; (iii) the concerns of the citizens in the locality wherein the affected highway is located, particularly those persons who own land adjacent to such highway; (iv) the concerns of the governing body of the locality affected; and (v) the historical and aesthetic significance of the unpaved secondary highway and its surroundings.
    2. The Commissioner of Highways shall provide notice of the intended paving to the governing body of the locality where the affected highway or portion thereof is located. The Commissioner shall provide such notice following his decision to pave the unpaved secondary highway within the locality affected.
    3. The local governing body’s concurrence or other recommendation regarding the proposed paving shall be forwarded to the Commissioner of Highways within 72 hours following the receipt of the Commissioner’s notice.

    History. 1996, c. 923, § 33.1-70.2; 2011, c. 400; 2014, c. 805.

    § 33.2-334. (Effective until July 1, 2022) Requirements for taking new streets into secondary state highway system.

    1. The governing body of any county that has not withdrawn from the secondary state highway system or any town within which the Department maintains the streets may, by resolution, request the Board to take any new street or highway into the secondary state highway system for maintenance if such street or highway has been developed and constructed in accordance with the Board’s secondary street acceptance requirements. The Board shall adopt regulations establishing such secondary street acceptance requirements, which shall include such provisions as the Board deems necessary or appropriate to achieve the safe and efficient operation of the Commonwealth’s transportation network.
    2. In addition to such other provisions deemed necessary or appropriate by the Board, the regulations shall include (i) requirements to ensure the connectivity of highway and pedestrian networks with the existing and future transportation network, (ii) provisions to minimize stormwater runoff and impervious surface area, and (iii) provisions for performance bonding of new secondary highways and associated cost recovery fees.
    3. No initial regulation establishing secondary street acceptance requirements pursuant to this section shall apply to subdivision plats and subdivision construction plans that have been submitted and accepted for review by the Department on or before the effective date of such initial regulations. No locality shall be obligated to approve any subdivision plat or subdivision construction plans that are inconsistent with these regulations.
    4. Nothing in this section or in any regulation, policy, or practice adopted pursuant to this section shall prevent the acceptance of any street or segment of a street within a network addition that meets one or more of the public service requirements addressed in the regulations, provided that the network addition satisfies all other requirements adopted pursuant to this section. In cases where a majority of the lots along the street or street segment remain undeveloped and construction traffic is expected to utilize that street or street segment after acceptance, the bonding requirement for such street or street segment may be required by the Department to be extended for up to one year beyond that required in the secondary street acceptance requirements.

    History. 2007, c. 382, § 33.1-70.3; 2010, c. 401; 2014, c. 805.

    The 2022 amendments.

    The 2022 amendment by c. 425 added “provided that such provisions shall include flexibility to limit the number of connections to adjacent property or highway networks as deemed appropriate” in subsection B in clause (i) at the end; and made stylistic changes.

    § 33.2-334. (Effective July 1, 2022) Requirements for taking new streets into secondary state highway system.

    1. The governing body of any county that has not withdrawn from the secondary state highway system or any town within which the Department maintains the streets may, by resolution, request the Board to take any new street or highway into the secondary state highway system for maintenance if such street or highway has been developed and constructed in accordance with the Board’s secondary street acceptance requirements. The Board shall adopt regulations establishing such secondary street acceptance requirements, which shall include such provisions as the Board deems necessary or appropriate to achieve the safe and efficient operation of the Commonwealth’s transportation network.
    2. In addition to such other provisions deemed necessary or appropriate by the Board, the regulations shall include (i) requirements to ensure the connectivity of highway and pedestrian networks with the existing and future transportation network, provided that such provisions shall include flexibility to limit the number of connections to adjacent property or highway networks as deemed appropriate; (ii) provisions to minimize stormwater runoff and impervious surface area; and (iii) provisions for performance bonding of new secondary highways and associated cost recovery fees.
    3. No initial regulation establishing secondary street acceptance requirements pursuant to this section shall apply to subdivision plats and subdivision construction plans that have been submitted and accepted for review by the Department on or before the effective date of such initial regulations. No locality shall be obligated to approve any subdivision plat or subdivision construction plans that are inconsistent with these regulations.
    4. Nothing in this section or in any regulation, policy, or practice adopted pursuant to this section shall prevent the acceptance of any street or segment of a street within a network addition that meets one or more of the public service requirements addressed in the regulations, provided that the network addition satisfies all other requirements adopted pursuant to this section. In cases where a majority of the lots along the street or street segment remain undeveloped and construction traffic is expected to utilize that street or street segment after acceptance, the bonding requirement for such street or street segment may be required by the Department to be extended for up to one year beyond that required in the secondary street acceptance requirements.

    History. 2007, c. 382, § 33.1-70.3; 2010, c. 401; 2014, c. 805; 2022, c. 425.

    § 33.2-335. Taking certain streets into secondary state highway system.

    1. For the purposes of this section:“County” means a county in which the secondary state highway system is constructed and maintained by the Department and that has adopted a local ordinance for control of the development of subdivision streets to the necessary standards for acceptance into the secondary state highway system.“Qualifying rural addition cost” means that portion of the estimated engineering and construction cost to improve the street to the minimum standards for acceptance remaining after reducing the total estimated cost by any prorated amount deemed the responsibility of others based on speculative interests.“Rural addition funds” means those funds reserved from the county’s annual allocation of secondary state highway system construction funds, as defined in § 33.2-324 , for the purpose of this section. If such funds are not used by such county for such purpose during the fiscal year they are so allocated, the funds may be held for such purpose for the four succeeding fiscal years. A maximum of five percent of the annual secondary state system highway construction allocation may be reserved by the local governing body for rural additions.“Speculative interest” means that the original developer or a successor developer retains ownership in any lot abutting such street for development or speculative purposes. In instances where it is determined that speculative interest is retained by the original developer, developers, or successor developers and the governing body of the county deems that extenuating circumstances exist, the governing body of the county shall require a pro rata participation by such original developer, developers, or successor developers as prescribed in subsection D as a condition of the county’s recommendation pursuant to this section.“Street” means a street or highway shown on a plat that has been recorded or otherwise opened to public use and used by motor vehicles for at least 20 years and that, for any reason, has not been taken into the secondary state highway system and serves at least three families per mile.
    2. Whenever the governing body of a county recommends in writing to the Department that any street in the county be taken into and become a part of the secondary state highway system in such county, the Department thereupon, within the limit of available funds and the mileage available in such county for the inclusion of highways and streets in the secondary state highway system, shall take such street into the secondary state highway system for maintenance, improvement, construction, and reconstruction if such street, at the time of such recommendation, (i) has a minimum dedicated width of 40 feet or (ii) in the event of extenuating circumstances as determined by the Commissioner of Highways, has a minimum dedicated width of 30 feet. In either case, such streets must have easements appurtenant thereto that conform to the policy of the Board with respect to drainage. After the streets are taken into the secondary state highway system, the Department shall maintain the same in the manner provided by law. However, no such street shall be taken into and become a part of the secondary state highway system unless and until any and all required permits have been obtained and any outstanding fees, charges, or other financial obligations of whatever nature have been satisfied or provision has been made, whether by the posting of a bond or otherwise, for their satisfaction.
    3. Such street shall only be taken into the secondary state highway system if the governing body of the county has identified and made available the funds required to improve the street to the required minimum standards. The county may consider the following options to fund the required improvements for streets accepted under this section:
      1. The governing body of the county may use a portion of the county’s annual secondary state highway system construction allocation designated as rural addition funds to fund the qualifying rural addition costs for qualifying streets if the county agrees to contribute from county revenue or the special assessment of the landowners on the street in question one-half of the qualifying rural addition cost to bring the streets up to the necessary minimum standards for acceptance. No such special assessment of landowners on such streets shall be made unless the governing body of the county receives written declarations from the owners of 75 percent or more of the platted parcels of land abutting upon such streets stating their acquiescence in such assessments. The basis for such special assessments, at the option of the local governing body, shall be either (i) the proportion the value of each abutting parcel bears to the total value of all abutting parcels on such street as determined by the current evaluation of the property for real estate tax purposes, (ii) the proportion the abutting road front footage of each parcel abutting the street bears to the total abutting road front footage of all parcels abutting on the street, or (iii) an equal amount for each parcel abutting on such street. No such special assessment on any parcel shall exceed one-third of the current valuation of such property for real estate tax purposes. Special assessments under this section shall be conducted in the manner provided in Article 2 (§ 15.2-2404 et seq.) of Chapter 24 of Title 15.2, mutatis mutandis, for assessments for local improvements.
      2. The governing body of any county may use a portion of its annual secondary state highway system construction allocation designated as rural addition funds to fund the qualifying rural addition cost for qualifying streets within the limitation of funds and the mileage limitation of the Board’s policy on rural additions.
      3. The governing body of any county may use revenues derived from the sale of bonds to finance the construction of rural additions to the secondary state highway system of such county. In addition, from the funds allocated by the Commonwealth for the construction of secondary state highway improvements, such local governing body may use funds allocated within the Board policy for the construction of rural additions to pay principal and interest on bonds associated with rural additions in such county, provided the revenue derived from the sale of such bonds is not used as the county matching contribution under § 33.2-357 . The provisions of this section shall not constitute a debt or obligation of the Board or the Commonwealth.
      4. The governing body of the county may expend general county revenue for the purposes of this section.
      5. The governing body of the county may permit one or more of the landowners on the street in question to pay to the county a sum equal to one-half of the qualifying rural addition cost to bring the street up to the necessary minimum standards for acceptance into the secondary state highway system, which funds the county shall then utilize for such purpose. Thereafter, upon collection of the special assessment of landowners on such street, the county shall use such special assessment funds to reimburse, without interest, the one or more landowners for those funds that they previously advanced to the county to bring the street up to the necessary minimum standards for acceptance.
      6. The governing body of the county may utilize the allocations made to the county in accordance with § 33.2-357 .
    4. In instances where it is determined that speculative interest exists, the basis for the pro rata percentage required of such developer, developers, or successor developers shall be the proportion that the value of the abutting parcels owned or partly owned by the developer, developers, or successor developers bears to the total value of all abutting property as determined by the current valuation of the property for real estate purposes. The pro rata percentage shall be applied to the Department’s total estimated cost to construct such street to the necessary minimum standards for acceptance to determine the amount of costs to be borne by the developer, developers, or successor developers. Property so valuated shall not be assessed in the special assessment for the determination of the individual pro rata share attributable to other properties. Further, when such pro rata participation is accepted by the governing body of the county from such original developer, developers, or successor developers, such amount shall be deducted from the Department’s total estimated cost, and the remainder of such estimated cost, the qualifying rural addition cost, shall then be the basis of determining the assessment under the special assessment provision or determining the amount to be provided by the county when funded from general county revenue under the definition of speculative interest in subsection A or determining the amount to be funded as a rural addition under the definition of qualifying rural addition cost in subsection A.
    5. Acceptance of any street into the secondary state highway system for maintenance, improvement, construction, and reconstruction shall not impose any obligation on the Board to acquire any additional right-of-way or easements should they be necessary by virtue of faulty construction or design.

    History. Code 1950; 1968, c. 601; 1970, c. 322, § 33.1-72.1; 1972, c. 393; 1976, c. 391; 1977, cc. 214, 578; 1978, c. 487; 1979, c. 321; 1980, c. 96; 1981, c. 232; 1982, c. 167; 1983, cc. 171, 455; 1984, c. 146; 1987, cc. 156, 207; 1989, c. 274; 1991, c. 250; 1993, c. 71; 1995, c. 416; 1997, c. 740; 1998, cc. 330, 338, 340; 2001, c. 95; 2004, c. 677; 2006, c. 827; 2009, c. 635; 2014, c. 805; 2015, c. 179.

    Cross references.

    For present provisions as to allocation of funds for the secondary state highway systems, see § 33.2-358 .

    The 2015 amendments.

    The 2015 amendment by c. 179 in subsection A, substituted “has been recorded” for “was recorded,” deleted “prior to July 1, 1992, at which time it was open to” following “opened to public use” and inserted “for at least 20 years” in the definition of “Street.”

    Law Review.

    For note, “Virginia Subdivision Law: An Unreasonable Burden on the Unwary,” see 34 Wash. & Lee L. Rev. 1223 (1977).

    For survey of Virginia property law for the year 1977-1978, see 64 Va. L. Rev. 1513 (1978).

    Research References.

    Virginia Forms (Matthew Bender). No. 16-526 Deed of Subdivision, Dedication, and Easement, et seq.

    CASE NOTES

    Special assessment for secondary highways limited to lands bordering route to be improved. —

    By consistently using the term “abutting” in this section and former § 15.1-239 [see now § 15.2-2404 ], the General Assembly signified its intent to limit special assessments to owners of land bordering upon, and not merely adjacent or in close proximity to, the portion of the street that is being improved; thus, owner’s land did not border upon route where the special assessment levied against him for the construction of a state secondary highway was invalid. Taylor v. Board of Supvrs., 243 Va. 409 , 416 S.E.2d 433, 8 Va. Law Rep. 2750, 1992 Va. LEXIS 31 (1992) (decided under prior law).

    OPINIONS OF THE ATTORNEY GENERAL

    Editors note.

    The opinions cited below were decided under prior law.

    Subdivision ordinance requirements. —

    Department of Transportation is authorized to prohibit a county from participating in its rural addition program when such county’s subdivision ordinance does not require that all subdivision streets meet the standards that qualify roads for acceptance into the secondary system of state highways. See opinion of Attorney General to Mr. Martin M. McMahon, Montgomery County Attorney, 05-057 (9/6/05).

    Developer with speculative interest. —

    Even though a landowner appears to be a developer with a speculative interest as contemplated by this section for the assessment by localities of a portion of the cost of bringing roadway to the standards required for inclusion in the state secondary highway system, the governing body of the county must obtain written declarations from the owners of at least seventy-five percent of the platted parcels of land abutting upon the street stating their acquiescence in such assessments as required by subdivision F 1. The issue of whether a landowner is a developer is a question of fact. See opinion of Attorney General to Mr. C. Dean Foster, Jr., Scott County Attorney, 05-079 (1/4/06).

    Effect of covenant is a question of fact. —

    Section 33.1-72.1 provides the requirements and funding options to improve a road to be taken into the secondary system of highways by the Virginia Department of Transportation. Whether the covenant would be an impediment to acceptance into the secondary system of state highways requires a determination of fact that is beyond the scope of this opinion. See opinion of Attorney General to the Honorable Phillip P. Puckett, Member, Senate of Virginia, 12-115, 2013 Va. AG LEXIS 66 (8/2/13).

    § 33.2-336. Funds allocated to counties for Rural Addition Program; street standards.

    1. Notwithstanding any other provision of law, the Board and the Commissioner of Highways shall not diminish funds allocated or allocable to any county for use under the Rural Addition Program by reason of any county ordinance authorizing the use of private roads not built to standards set by the Department or construction of subdivision streets built to standards other than those established by the Department.
    2. In those counties where this section is applicable, the ordinance shall also state that any and all streets that are not constructed to meet the standards necessary for inclusion in the systems of state highways shall be privately maintained and shall not be eligible for acceptance into the systems of state highways unless improved to current Department standards with funds other than those appropriated by the General Assembly and allocated by the Board. For any street that is not constructed to Department standards, the subdivision plat and all approved deeds of subdivision, or similar instruments, shall contain a statement advertising that the streets in the subdivision do not meet the standards necessary for inclusion in the systems of state highways and will not be maintained by the Department or the county approving the subdivision and are not eligible for rural addition funds, as defined in § 33.2-335 , or any other funds appropriated by the General Assembly and allocated by the Board.

    History. 2006, c. 566, § 33.1-72.2; 2014, c. 805.

    Editor’s note.

    At the direction of the Virginia Code Commission, Acts 2006, c. 566, was codified as § 33.1-72.2, the precursor to this section.

    Research References.

    Virginia Forms (Matthew Bender). No. 16-526 Deed of Subdivision, Dedication, and Easement, et seq.

    § 33.2-337. Contributions to primary or secondary state highway construction by counties.

    Notwithstanding any other provision of law, any county having highways in the primary or secondary state highway system may contribute funds annually for the construction of primary or secondary highways. The funds contributed by such county shall be appropriated from the county’s general revenues for use by the Department on the primary or secondary state highway system within such county as may be determined by the board of supervisors of such county in cooperation with the Department. The funds to which any county may be entitled under the provisions of § 33.2-358 for construction, improvement, or maintenance of primary or secondary highways shall not be diminished by reason of any funds contributed for that purpose by such county or by any person or entity, regardless of whether such contributions are matched by state or federal funds.

    History. 1977, c. 578, § 33.1-75.2; 1982, c. 218; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 substituted “§ 33.2-358 ” for “§§ 33.2-358 , 33.2-361 , and 33.2-364 ” in the third sentence.

    § 33.2-338. Construction and improvement of primary or secondary highways by counties.

    1. Notwithstanding any other provisions of this article, the governing body of any county may expend general revenues or revenues derived from the sale of bonds for the purpose of constructing or improving highways, including curbs, gutters, drainageways, sound barriers, sidewalks, and all other features or appurtenances conducive to the public safety and convenience, that either have been or may be taken into the primary or secondary state highway system. Project planning and the acquisition of rights-of-way shall be under the control and at the direction of the county, subject to the approval of project plans and specifications by the Department. All costs incurred by the Department in administering such contracts shall be reimbursed from the county’s general revenues or from revenues derived from the sale of bonds or such costs may be charged against the funds that the county may be entitled to under the provisions of § 33.2-358 .
    2. Projects undertaken under the authority of subsection A shall not diminish the funds to which a county may be entitled under the provisions of § 33.2-357 or 33.2-358 .
    3. At the request of the county, the Department may agree to undertake the design, right-of-way acquisition, or construction of projects funded by the county. In such situations, the Department and the county shall enter into an agreement specifying all relevant procedures and responsibilities concerning the design, right-of-way acquisition, construction, or contract administration of projects to be funded by the county. The county shall reimburse the Department for all costs incurred by the Department in carrying out the aforesaid activities from general revenues or revenues derived from the sale of bonds.
    4. Notwithstanding any contrary provision of law, any county may undertake activities toward the design, land acquisition, or construction of primary or secondary state highway projects that have been included in the six-year plan pursuant to § 33.2-331 , or in the case of a primary state highway, an approved project included in the six-year improvement program of the Board. In such situations, the Department and the county shall enter into an agreement specifying all relevant procedures and responsibilities concerning the design, right-of-way acquisition, construction, or contract administration of projects to be funded by the Department. Such activities shall be undertaken with the prior concurrence of the Department, and the Department shall compensate the county for eligible expenses incurred in carrying out these activities. The county may undertake these activities in accordance with all applicable county procedures, provided the Commissioner of Highways finds that those county procedures are substantially similar to departmental procedures and specifications.
    5. If funding for the construction of a primary or interstate project is scheduled in the Board’s Six-Year Improvement Program as defined in § 33.2-214 , a locality may choose to advance funds to the project. If such advance is offered, the Board may consider such request and agree to such advancement and the subsequent reimbursement of the locality of the advance in accordance with terms agreed upon by the Board or its designee and the locality.
    6. Any county carrying out any construction project as authorized in this section may, in so doing, exercise the powers granted the Commissioner of Highways under Article 1 (§ 33.2-1000 et seq.) of Chapter 10 to enter property for the purpose of making an examination and survey thereof, with a view to ascertainment of its suitability for highway purposes and any other purpose incidental thereto.
    7. For the purposes of this section, any county without an existing franchise agreement, when administering a Department-sanctioned project under a land-use permit or transportation project agreement, shall have the same authority as the Department pertaining to the relocation of utilities.
    8. Whenever so requested by any county, funding of any project undertaken as provided in this section may be supplemented solely by state funds in order to avoid the necessity of complying with additional federal requirements, provided a determination has been made by the Department that (i) adequate state funds are available to fully match available federal transportation funds and (ii) the Department can meet its federal obligation authority, as permitted by federal law.

    History. 1981, c. 321, § 33.1-75.3; 1982, c. 218; 1983, cc. 321, 325; 1984, c. 127; 1985, c. 562; 1988, c. 654; 1989, c. 143; 1990, c. 36; 1995, c. 105; 1998, cc. 334, 341, 342; 2000, c. 88; 2003, c. 303; 2005, c. 342; 2006, cc. 115, 827; 2014, c. 805; 2015, c. 684; 2020, c. 784.

    The 2015 amendments.

    The 2015 amendment by c. 684 deleted “33.2-361, or 33.2-364 ” following “33.2-358” in the third sentence of subsection A; substituted “§ 33.2-357 or 33.2-358 ” for “§ 33.2-357 , 33.2-358 , 33.2-361 , or 33.2-364 ” in subsection B; and made stylistic changes.

    The 2020 amendments.

    The 2020 amendment by c. 784, in subsection D, substituted “compensate the county for eligible” for “reimburse the county for” in the penultimate sentence and deleted the former penultimate sentence.

    § 33.2-339. Maintenance, etc., of streets and highways in certain towns from secondary funds.

    The Commissioner of Highways may, subject to the approval of the Board, upon request of the governing bodies of towns with a population of less than 3,500, according to the last United States census, select certain streets and highways in such towns for maintenance, improvement, construction, and reconstruction from allocations available from secondary highway funds not to exceed two miles of streets or highways in such towns included in the secondary state highway system, whether such two miles of streets or highways constitute connecting links between highways in the secondary state highway system in the counties or between highways in the secondary state highway system and highways in the primary state highway system, or not.

    The Commissioner of Highways, with the approval of the Board, in addition to the said two miles may increase the mileage of streets and highways in such towns annually, not to exceed in any one year one-fourth mile, exclusive of any mileage transferred from the primary state highway system under the provisions of § 33.2-315 or any mileage maintained by the Department prior to its annexation by such town.

    History. Code 1950, § 33-50.1; 1954, c. 534; 1970, c. 322, § 33.1-79; 2014, c. 805.

    § 33.2-340. Maintenance, etc., by Commissioner of Highways when no request for allocation.

    If no request is made to the Board by the governing body of any town as provided in § 33.2-339 , the Commissioner of Highways, subject to the approval of the Board, may maintain, improve, construct, and reconstruct all streets in such town that (i) have an unrestricted right-of-way width of not less than 30 feet and a hard-surface width of not less than 12 feet; (ii) were established after July 1, 1950, by such town and have a right-of-way width of not less than 50 feet and a hard-surface width of not less than 20 feet; or (iii) are functionally classified as local streets and were constructed on or after January 1, 1996, and, at the time of approval by the town, met the criteria for pavement width and right-of-way of the then-current edition design standards for subdivision streets as set forth in regulations adopted by the Board.

    History. Code 1950; 1950, p. 162, § 33-50.4; 1970, c. 322, § 33.1-82; 1992, c. 108; 1999, c. 318; 2014, c. 805.

    § 33.2-341. Maps of secondary state highway system.

    The Commissioner of Highways shall prepare and keep on file in his office for public inspection a complete map for each county showing the route of the secondary state highway system.

    History. Code 1950, § 33-51; 1970, c. 322, § 33.1-84; 2014, c. 805.

    CASE NOTES

    The fact that such maps do not include a county road does not alone establish a discontinuance or abandonment of such road as a public highway. Bond v. Green, 189 Va. 23 , 52 S.E.2d 169, 1949 Va. LEXIS 145 (1949) (decided under prior law).

    § 33.2-342. Resumption of responsibility for secondary state highways by counties.

    Notwithstanding any provisions of § 11 of Chapter 415 of the Acts of Assembly of 1932 and §§ 33.2-341 , 33.2-343 , 33.2-345 , and 33.2-346 , the Commissioner of Highways, following receipt of a resolution adopted by the board of supervisors of a county requesting such action, may enter into an agreement with any county that desires to resume responsibility over all or any portion of the secondary state highway system within such county’s boundaries for the purposes of planning, constructing, maintaining, and operating such highways. Such agreement shall specify the equipment, facilities, personnel, and funding that will be provided to the county in order to implement such agreement’s provisions.

    Any county that resumes full responsibility for all of the secondary state highway system within such county’s boundaries (i) shall have authority and control over the secondary state highway system within its boundaries, (ii) shall be deemed to have withdrawn from the secondary state highway system, and (iii) shall receive payments in accordance with § 33.2-366 . The resolution requesting resumption of all responsibilities shall also include a request for the transfer and release of all rights-of-way and rights of access along the secondary state highway system within the county’s boundaries.

    History. 2001, cc. 257, 273, 277, § 33.1-84.1; 2009, c. 476; 2014, c. 805.

    § 33.2-343. Return after withdrawal from secondary state highway system.

    Any county that has withdrawn its roads from the secondary state highway system under the provisions of § 11 of Chapter 415 of the Acts of Assembly of 1932 shall have the right at any time to bring itself back within such secondary state highway system, provided the decision is approved by a majority of the qualified voters of such county voting in an election called for that purpose as provided in this article.

    History. Code 1950, § 33-53; 1970, c. 322, § 33.1-85; 2014, c. 805.

    § 33.2-344. Election to determine return to the secondary state highway system.

    Upon the petition of qualified voters of any county that proposes to return its roads to the secondary state highway system equal in number to at least 20 percent of the number counted in such county for presidential electors at the last preceding presidential election or 250, whichever is more, the circuit court of such county shall make an order requiring the judges of election on such day as may be fixed in the order, but not less than 30 days after the date of the order, to open a poll and take the sense of the qualified voters of the county on the question of whether or not such county shall return to the secondary state highway system. The qualifications of voters at each such election shall be as provided by §§ 24.2-400 through 24.2-403 .

    The ballots for use at any such election shall be printed to state the question as follows:

    “Shall county (the name of such county to be inserted) return to the secondary state highway system for maintenance and construction by the Commonwealth?

    Click to view

    [ ] Yes

    [ ] No”

    The ballots shall be printed, marked, and counted and returns made and canvassed as in other elections and as provided in § 24.2-684 . The results shall be certified by the secretary of the appropriate electoral board to the State Board of Elections, to the court ordering the election, and to such other authority as may be proper to accomplish the purpose of the election. All other proceedings in connection with any such election shall be in conformity with the proceedings prescribed in § 11 of Chapter 415 of the Acts of Assembly of 1932.

    History. Code 1950, § 33-54; 1970, c. 322, § 33.1-86; 2014, c. 805.

    § 33.2-345. Effect of election to determine return to the secondary state highway system.

    If the result of an election pursuant to § 33.2-344 is in favor of the county returning to the secondary state highway system, such county shall, after the entry by the court of an order so declaring the result of such election and on and after the first day of July next succeeding, be within the secondary state highway system as fully and completely as if it had not withdrawn. All provisions of this article shall thereupon apply to and be enforced as to such county to the same extent as if the dates in Chapter 415 of the Acts of Assembly of 1932 had been changed to correspond with the year in which such county returns to the secondary state highway system. Such county shall not be allowed again to withdraw from the secondary state highway system.

    History. Code 1950, § 33-55; 1970, c. 322, § 33.1-87; 2014, c. 805.

    § 33.2-346. Machinery, etc., owned by returning county.

    The Commissioner of Highways shall, as promptly as practicable, make an inventory and appraisal of all road machinery, equipment, teams, material, and supplies on hand or belonging to the local highway authorities of any county that returns to the secondary state highway system or any district thereof that may be deemed by him suitable for work on the secondary state highway system and shall file such inventory and appraisal with the Board. The local highway authorities may, if they so elect, turn over to the Commonwealth such road machinery, equipment, teams, material, and supplies at the appraised value thereof, which shall be paid within two years out of funds available for expenditure on highways in the secondary state highway system, or, if they so prefer, the local highway authorities may retain or sell any of such property otherwise or, if they so elect, may turn over to the Commissioner of Highways all or any of such property for use upon the secondary state highway system without reimbursement therefor. Any sums received by the local highway authorities under the provisions of this section shall, so far as may be necessary, be applied on account of obligations previously contracted for county or district highway purposes and the balance, if any, for general county purposes.

    History. Code 1950, § 33-56; 1970, c. 322, § 33.1-88; 2014, c. 805.

    Article 4. Urban Highway System.

    § 33.2-347. Minimum street and highway standards for certain towns.

    Notwithstanding the provisions of § 33.2-340 , any town in which 70 percent or more of developable land within its boundaries has a natural grade of 20 percent or more may by ordinance provide for streets or highways established on or after July 1, 1980, with an unrestricted right-of-way width of not less than 40 feet and a hard-surface width of not less than 18 feet, provided that no such requirement of any such town shall be less stringent than that of the county in which the town is located. Streets and highways so established and constructed shall be eligible for payment in accordance with § 33.2-340 .

    History. 1980, c. 374, § 33.1-43.2; 2014, c. 805.

    § 33.2-348. Repealed by Acts 2015, c. 684, cl. 6, effective July 1, 2016.

    Editor’s note.

    Former § 33.2-348 , pertaining to Matching highway funds; funding of urban system construction projects, derived from Code 1950, § 33-35.5; 1958, c. 584; 1964, c. 256; 1970, cc. 322, 403, § 33.1-44; 1977, c. 578; 1979, c. 84; 1980, c. 128; 1981, c. 370; 1987, c. 545; 1989, c. 303; 1991, c. 353; 2000, c. 762; 2002, c. 673; 2007, c. 813; 2014, c. 805; 2015, c. 30.

    Acts 2015, c. 684, cl. 7 provides: “That the repeal of §§ 33.2-348 , 33.2-361 , 33.2-362, and 33.2-364 of the Code of Virginia shall not affect the expenditure of funds that are allocated pursuant to those sections by July 1, 2016.”

    § 33.2-349. Character of signs, markings, and signals.

    On any urban highway upon which the Board has expended funds, the location, form, and character of informational, regulatory, and warning signs, curb and pavement, or other markings and traffic signals installed or placed by any public authority shall be subject to the approval of the Commissioner of Highways.

    History. Code 1950, § 33-35.7; 1964, c. 256; 1970, c. 322, § 33.1-46; 1977, c. 578; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 deleted “in the manner provided in §§ 33.2-348 and 33.2-362” following “has expended funds.”

    § 33.2-350. Landscape studies for urban highway construction projects.

    Prior to final design of any urban highway funded in part by any municipality, such municipality may hire a competent authority to conduct a landscape study that shall assess the effect such proposed highway construction may have on existing trees, shrubbery, and other flora and shall make recommendations as to modifications to such project that would minimize damage to existing flora. The Department shall consider such recommendations and modify such highway construction plans to protect trees, shrubbery, and other flora if determined by the Department to be reasonable and practicable. The cost of such landscape study shall be payable by the municipality that initiates such study.

    History. 1975, c. 555, § 33.1-47.1; 2014, c. 805.

    Article 5. Allocation of Highway Funds.

    § 33.2-351. Definition of “allocation.”

    For the purposes of this article, “allocation” means a commitment to expend funds available for construction during each fiscal year. Funds that cannot be expended as allocated within each fiscal year shall be identified as part of future commitments, and the reason for the failure to spend allocations shall be specifically included in the annual construction improvement program.

    History. 1982, c. 418, § 33.1-23.01; 2014, c. 805.

    § 33.2-352. Asset management practices; report.

    1. The Department shall develop asset management practices in the operation and maintenance of the systems of state highways. Such practices shall include a transparent methodology for the allocation of funds from the Highway Maintenance and Operating Fund established pursuant to § 33.2-1530 to highway systems maintenance and operations programs, including the allocations among the highway construction districts and among the Interstate System and primary and secondary state highway systems.
    2. The Commissioner of Highways shall advise the Board on or before June 30 of even-numbered years of performance targets and outcomes that are expected to be achieved, based on the funding identified for maintenance, over the biennium beginning July 1 of that year. In addition, not later than September 30 of even-numbered years, the Commissioner of Highways shall advise the Board on the Department’s accomplishments relative to the expected outcomes and budget expenditures for the biennium ending June 30 of that year and also advise the Board as to the methodology used to determine maintenance needs and the justification as to the maintenance funding by source.

    History. 1985, c. 42, § 33.1-23.02; 2002, cc. 302, 570; 2006, Sp. Sess. I, c. 9; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 added the second sentence in subsection A.

    § 33.2-353. Commonwealth Transportation Board to develop and update Statewide Transportation Plan.

    1. The Board shall, with the assistance of the Office of Intermodal Planning and Investment, conduct a comprehensive review of statewide transportation needs in a Statewide Transportation Plan setting forth assessment of capacity needs for all corridors of statewide significance, regional networks, and improvements to promote urban development areas established pursuant to § 15.2-2223.1 . The assessment shall consider all modes of transportation. Such corridors shall be planned to include multimodal transportation improvements, and the plan shall consider corridor location in planning for any major transportation infrastructure, including environmental impacts and the comprehensive land use plan of the locality in which the corridor is planned. In the designation of such corridors, the Board shall not be constrained by local, district, regional, or modal plans.The Statewide Transportation Plan shall be updated as needed but no less than once every four years. The plan shall promote economic development and all transportation modes, intermodal connectivity, environmental quality, accessibility for people and freight, resiliency, and transportation safety.
    2. The Statewide Transportation Plan shall establish goals, objectives, and priorities that cover at least a 20-year planning horizon, in accordance with federal transportation planning requirements. The plan shall include quantifiable measures and achievable goals relating to, but not limited to, congestion reduction and safety, transit and high-occupancy vehicle facility use, job-to-housing ratios, job and housing access to transit and pedestrian facilities, air quality, movement of freight by rail, and per capita vehicle miles traveled. The Board shall consider such goals in evaluating and selecting transportation improvement projects for inclusion in the Six-Year Improvement Program pursuant to § 33.2-214 .
    3. The plan shall incorporate the measures and goals of the approved long-range plans developed by the applicable regional organizations. Each such plan shall be summarized in a public document and made available to the general public upon presentation to the Governor and General Assembly.
    4. It is the intent of the General Assembly that this plan assess transportation needs and assign priorities to projects on a statewide basis, avoiding the production of a plan that is an aggregation of local, district, regional, or modal plans.
    5. The plan shall consider and incorporate, where applicable, wildlife corridors and any recommendation of the Wildlife Corridor Action Plan developed pursuant to § 29.1-579 .

    History. 1985, c. 320, § 33.1-23.03; 2001, cc. 764, 772; 2002, c. 639; 2007, c. 896; 2009, cc. 670, 690, 864, 871; 2011, cc. 104, 164; 2014, c. 805; 2021, Sp. Sess. I, cc. 51, 52, 498.

    Cross references.

    As to goals of the Office of Intermodal Planning and Investment of the Secretary of Transportation, generally, see § 2.2-229 .

    As to comprehensive plan prepared and adopted by local planning commission, see § 15.2-2223 .

    Editor’s note.

    Former § 33.1-23.03, from which this section was derived, was enacted as § 33.1-23.02 by Acts 1985, c. 320, and subsequently renumbered at the direction of the Virginia Code Commission.

    Acts 2009, cc. 670 and 690, cl. 2 provides: “That the Commonwealth Transportation Board, with the assistance of the Office of Intermodal Planning and Investment, may require that appropriate regional organizations develop as part of a long-range plan quantifiable measures and achievable goals for the urban region relating to, but not limited to, congestion reduction and safety, transit and high-occupancy vehicle (HOV) usage, job-to-housing ratios, job and housing access to transit and pedestrian facilities, air quality, movement of freight by rail, and per capita vehicle miles traveled.”

    Acts 2009, cc. 670 and 690, cl. 3 provides: “That the designation of the transportation corridors under this act shall be in sufficient detail so that the local jurisdictions can place them on their comprehensive plans.”

    Acts 2009, cc. 670 and 690, cl. 4 provides: “That the Commonwealth Transportation Board shall conduct public hearings as it deems appropriate in order to prepare the Statewide Transportation Plan.”

    Acts 2009, cc. 670 and 690, cl. 5 provides: “Subject to compliance with federal and state law and regulations and the allocation of funds, that once the corridors are established, the Commonwealth shall begin the appropriate environmental studies and such information may be used in a program to invite possible construction and improvement to the corridor through a public-private partnership. The development of environmental studies shall be prioritized by corridor based on criteria established by the Commonwealth Transportation Board.”

    Acts 2011, cc. 104 and 164, cl. 2 provides: “That, notwithstanding the amendments to subsection A of § 33.1-23.03 contained in this act, the Statewide Transportation Plan shall next be updated and presented to the Governor and the General Assembly no later than December 1, 2013, and the subsequent Statewide Transportation Plan update shall be presented to the Governor and the General Assembly no later than December 1, 2015.”

    Acts 2014, c. 726, cl. 6 provides: “That, for Northern Virginia and Hampton Roads highway construction districts, the Commonwealth Transportation Board, pursuant to subdivision B 3 of § 33.1-23.5:5 as created by this act, shall ensure that congestion mitigation, consistent with § 33.1-13.03:1 of the Code of Virginia, is weighted highest among the factors in the prioritization process. For metropolitan planning areas with a population over 200,000, the prioritization process shall also include a factor based on the quantifiable and achievable goals pursuant to subsection B of § 33.1-23.03 of the Code of Virginia.”

    Acts 2021, Sp. Sess. I, cc. 51 and 52, cl. 2 provides: “That the Commissioner of Highways shall ensure resiliency is incorporated into the design standards for new construction projects.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendments by Sp. Sess. I, cc. 51 and 52, effective July 1, 2021, are identical, and inserted “resiliency,” in the second paragraph of subsection A.

    The 2021 amendment by Sp. Sess. I, c. 498, effective July 1, 2021, added subsection E.

    § 33.2-354. Commonwealth Transportation Board to develop and update Statewide Pedestrian Policy.

    1. The Board shall develop and update as needed a Statewide Pedestrian Policy. The Board shall:
      1. Provide opportunities for receipt of comments, suggestions, and information from local governments, business and civic organizations, and other concerned parties;
      2. Identify and evaluate needs at statewide, regional, and local levels for additional facilities required to promote pedestrian access to schools, places of employment and recreation, and major activity centers;
      3. Consider and evaluate potential ways of meeting these needs; and
      4. Set forth conclusions as to goals, objectives, and strategies to meet these needs in a safety-conscious manner.
    2. The Board shall coordinate the development of the Statewide Pedestrian Policy with that of the Statewide Transportation Plan provided for in § 33.2-353 and cover the same 20-year planning horizon. The Statewide Pedestrian Policy shall be summarized in a public document and made available to the general public upon presentation to the Governor and General Assembly, either in combination with the Statewide Transportation Plan or as a separate document.

    History. 2002, c. 453, § 33.1-23.03:001; 2014, c. 805.

    Cross references.

    As to designation of public highways for golf cart and utility vehicle operations, see § 46.2-916.2 .

    § 33.2-355. Goals for addressing transportation needs of populations with limited mobility.

    The Board, in cooperation with other local, regional, or statewide agencies and entities vested with transportation planning responsibilities, shall establish specific mobility goals for addressing the transportation needs of populations with limited mobility, including the elderly, persons with disabilities that limit their mobility, persons not served by any form of mass transit, and those who, for whatever reasons, cannot afford motor vehicles or cannot be licensed to drive them. Such goals, once established, shall be considered in the development and implementation of the Statewide Transportation Plan required by § 33.2-353 .

    History. 2006, cc. 395, 508, § 33.1-23.03:002; 2014, c. 805.

    Editor’s note.

    The section above was enacted as § 33.1-23.03:0001 by Acts 2006, cc. 395 and 508, and subsequently renumbered at the direction of the Virginia Code Commission as § 33.1-23.03:002, the precursor to this section.

    § 33.2-356. Funding for extraordinary repairs.

    Notwithstanding any contrary provision of this Code, the Board has the authority to provide, from revenues available for construction programs pursuant to § 33.2-358 , except for revenues pledged to secure any bonds issued for transportation purposes, for exceptionally heavy expenditures for repairs or replacements made necessary by highway damage resulting from extraordinary accidents, vandalism, weather conditions, or acts of God as well as to respond to federal funding initiatives that require matching funds.

    History. 1986, Sp. Sess., c. 13, § 33.1-23.03:6; 2014, c. 805; 2020, cc. 1230, 1275.

    Editor’s note.

    Former § 33.1-23.03:6, from which this section was derived, was enacted as § 33.1-23.03:1 F by Acts 1986, Sp. Sess., c. 13, and subsequently renumbered at the direction of the Virginia Code Commission.

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and substituted “construction programs pursuant to § 33.2-358 ” for “highway capital improvements under.”

    § 33.2-357. Revenue-sharing funds for systems in certain localities.

    1. From revenues made available by the General Assembly and appropriated for the improvement, construction, reconstruction, or maintenance of the systems of state highways, the Board may make an equivalent matching allocation to any locality for designations by the governing body of up to $5 million for use by the locality to improve, construct, maintain, or reconstruct the highway systems within such locality with up to $2.5 million for use by the locality to maintain the highway systems within such locality. After adopting a resolution supporting the action, the governing body of the locality may request revenue-sharing funds to improve, construct, reconstruct, or maintain a highway system located in another locality or between two or more localities or to bring subdivision streets, used as such prior to the date specified in § 33.2-335 , up to standards sufficient to qualify them for inclusion in the primary or secondary state highway system. All requests for funding shall be accompanied by a prioritized listing of specified projects.
    2. In allocating funds under this section, the Board shall give priority to projects as follows: first, to projects that have previously received an allocation of funds pursuant to this section; second, to projects that (i) meet a transportation need identified in the Statewide Transportation Plan pursuant to § 33.2-353 or (ii) accelerate a project in a locality’s capital plan; and third, to projects that address pavement resurfacing and bridge rehabilitation projects where the maintenance needs analysis determines that the infrastructure does not meet the Department’s maintenance performance targets.
    3. The Department shall contract with the locality for the implementation of the project. Such contract may cover either a single project or may provide for the locality’s implementation of several projects. The locality shall undertake implementation of the particular project by obtaining the necessary permits from the Department in order to ensure that the improvement is consistent with the Department’s standards for such improvements. At the request of the locality, the Department may provide the locality with engineering, right-of-way acquisition, construction, or maintenance services for a project with its own forces. The locality shall provide payment to the Department for any such services. If administered by the Department, such contract shall also require that the governing body of the locality pay to the Department within 30 days the local revenue-sharing funds upon written notice by the Department of its intent to proceed. Any project having funds allocated under this program shall be initiated in such a fashion that at least a portion of such funds have been expended within one year of allocation. Any revenue-sharing funds for projects not initiated after two subsequent fiscal years of allocation may be reallocated at the discretion of the Board.
    4. Total Commonwealth funds allocated by the Board under this section shall not exceed the greater of $100 million or seven percent of funds available for distribution pursuant to subsection B of § 33.2-358 prior to the distribution of funds pursuant to this section, whichever is greater, in each fiscal year, subject to appropriation for such purpose. For any fiscal year in which less than the full program allocation has been allocated by the Board to specific governing bodies, those localities requesting the maximum allocation under subsection A may be allowed an additional allocation at the discretion of the Board.
    5. The funds allocated by the Board under this section shall be distributed and administered in accordance with the revenue-sharing program guidelines established by the Board.

    History. 2006, c. 827, § 33.1-23.05; 2008, c. 608; 2011, cc. 830, 868; 2012, cc. 729, 733; 2014, c. 805; 2015, c. 684; 2018, c. 828; 2020, cc. 1230, 1275.

    The 2015 amendments.

    The 2015 amendment by c. 684 rewrote subsection B, which read “In allocating funds under this section, the Board shall give priority first to allocations that will accelerate projects in the Board’s Six-Year Improvement Program or the locality’s capital plan and next to those pavement resurfacing and bridge rehabilitation projects where the maintenance needs analysis determines that the infrastructure is below the Department’s maintenance performance targets.”

    The 2018 amendments.

    The 2018 amendment by c. 828, in subsection A, substituted “$5” for “$10” and “$2.5” for “$5” and inserted “maintain” in the first sentence; in subsection D, substituted “not exceed the greater of $100 million or seven percent of funds available for distribution pursuant to subsection D of § 33.2-358 prior to the distribution of funds pursuant to this section, whichever is greater” for “be no less than $15 million and no more than $200 million.”

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and substituted “subsection B” for “subsection D” in subsection B.

    § 33.2-358. Allocation of funds to programs.

    1. The Board shall allocate each year from all funds made available for highway purposes such amount as it deems reasonable and necessary for the maintenance of roads within the Interstate System, the primary state highway system, and the secondary state highway system and for city and town street maintenance payments made pursuant to § 33.2-319 and payments made to counties that have withdrawn or elect to withdraw from the secondary state highway system pursuant to § 33.2-366 .
    2. After funds are set aside for administrative and general expenses and pursuant to other provisions in this title that provide for the disposition of funds prior to allocation for construction programs, and after allocation is made pursuant to subsection A, the Board shall allocate all remaining funds, including funds apportioned pursuant to 23 U.S.C. § 104, or any successor programs, as follows:
      1. Thirty percent of the remaining funds to state of good repair purposes as set forth in § 33.2-369 ;
      2. Twenty percent of the remaining funds to the high-priority projects program established pursuant to § 33.2-370 ;
      3. Twenty percent of the remaining funds to the highway construction district grant programs established pursuant to § 33.2-371 ;
      4. Twenty percent of the remaining funds to the Interstate Operations and Enhancement Program established pursuant to § 33.2-372 ; and
      5. Ten percent of the remaining funds to the Virginia Highway Safety Improvement Program established pursuant to § 33.2-373 .
    3. The funds allocated in subsection B shall not include the following funds: Congestion Mitigation Air Quality funds apportioned to the state pursuant to 23 U.S.C. § 104(b)(4), or any successor program, and any state matching funds; Surface Transportation Block Grant set-aside for Transportation Alternatives pursuant to 23 U.S.C. § 213, or any successor program, and any state matching funds; Surface Transportation Block Grant Program funds subject to 23 U.S.C. § 133(d)(1)(A)(i), or any successor program, and any state matching funds; and funds received pursuant to federal programs established by the federal government after June 30, 2020, with specific rules that include major restrictions on the types of projects that may be funded, excluding restrictions on the location of projects with regard to highway functional or administrative classification or population, provided such funds are under the control of the Board.
    4. In addition, the Board, from funds appropriated for such purpose in the general appropriation act, shall allocate additional funds to the Cities of Newport News, Norfolk, and Portsmouth and the County of Warren in such manner and apportion such funds among such localities as the Board may determine, unless otherwise provided in the general appropriation act. The localities shall use such funds to address highway maintenance and repair needs created by or associated with port operations in those localities.
    5. Notwithstanding the provisions of this section, the General Assembly may, through the general appropriation act, permit the Governor to increase the amounts to be allocated to highway maintenance, highway construction, either or both.

    History. 1977, c. 578, § 33.1-23.1; 1979, c. 84; 1985, c. 42; 1986, c. 572; 2006, c. 937; 2007, c. 305; 2012, cc. 729, 733; 2014, cc. 87, 290, 741, 805; 2015, cc. 676, 684; 2020, cc. 1230, 1275.

    Editor’s note.

    Acts 2014, cc. 87 and 741 amended § 33.1-23.1, from which this section is derived. Pursuant to § 30-152, the 2014 amendments by cc. 87 and 741 have been given effect in this section, are identical, and in subsection C, by inserting “and municipality maintained primary extension,” made related changes, and substituting “50” for “200” in subsection C.

    Acts 2014, c. 290 amended § 33.1-23.1, from which this section is derived. Pursuant to § 30-152, Acts 2014, c. 290 has been given effect by substituting the definition of “High-tech infrastucture improvements” for the definition of “smart roadway technology” and substituting “the Innovation and Technology Transportation Fund established pursuant to § 33.2-1531 for high-tech infrastructure improvements” for “smart roadway technology” in clause (vi) of subsection C.

    Acts 2014, c. 726, cl. 5 provides “That the Commonwealth Transportation Board in implementing § 33.1-23.5:5 as created by this act shall comply with the allocation of funds pursuant to § 33.1-23.1.”

    Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 447 B, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 33.2-358 , Code of Virginia, the proceeds from the lease or sale of surplus and residue property purchased under this program in excess of related costs shall be applied to the State of Good Repair Program pursuant to § 33.2-369 , Code of Virginia. Proceeds must be used on Federal Title 23 eligible projects.”

    The 2015 amendments.

    The 2015 amendment by c. 676, effective July 1, 2016, inserted “or improving” in clause (v) of subsection C.

    The 2015 amendment by c. 684 rewrote subsection C; added subsections D and E; redesignated former subsections D and E as subsections F and G.

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and rewrote the section.

    Law Review.

    For essay, “Modern Transportation Needs and the Prohibitions of Article X, Section 10 of the Virginia Constitution,” see 47 U. Rich. L. Rev. 441 (2012).

    § 33.2-359. Unpaved secondary highway funds.

    1. Funds from the highway construction district grant programs established pursuant to § 33.2-371 shall be allocated for the improvement of nonsurface treated secondary highways that carry 50 or more vehicles per day. Funds shall be deducted from the allocation made to each highway construction district pursuant to subsection D of § 33.2-371 and such deduction shall be based on the ratio of nonsurface treated secondary highways in each highway construction district that carry 50 or more vehicles per day to the total number of such nonsurface treated secondary highways in the Commonwealth.Total funds of the Commonwealth allocated by the Board under this section shall not exceed $25 million annually.
    2. Such funds shall be distributed to counties in the secondary state highway system based on the ratio of nonsurface treated roads in each county carrying 50 vehicles or more per day to the total number of such nonsurface treated roads in the Commonwealth.

    History. 1979, c. 84, § 33.1-23.1:1; 1985, c. 42; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 rewrote the section.

    § 33.2-360. Allocation of funds for interstate match.

    Until July 1, 2020, after making the allocations provided for in subsection B of § 33.2-358 , a fund shall be established for matching federal-aid interstate funds.

    This fund shall be established annually by allocating to it all federal-aid interstate matching funds needed for the year.

    History. 1985, c. 42, § 33.1-23.1:2; 2014, c. 805; 2015, c. 684.

    The 2015 amendments.

    The 2015 amendment by c. 684 substituted “Until July 1, 2020, after” for “After”; deleted “but before making any allocations under subdivisions C 1, 2, and 3 of § 33.2-358 ” before “a fund”; deleted “less the total amount of highway construction district primary allocations for the interstate federal-aid match allocated under subsection B of § 33.2-361 ” at the end.

    §§ 33.2-361, 33.2-362. Repealed by Acts 2015, ch. 684, cl. 5.

    Editor’s note.

    Former § 33.2-361 , allocation of construction funds for primary state highway system and interstate match, derived from Acts 1977, c. 578, § 33.1-23.2; 1984, c. 748; 1985, c. 42; 2007, cc. 146, 178; 2014, c. 805.

    Former § 33.2-362, allocation of construction funds for urban system highways, derived from Acts 1977, c. 578, § 33.1-23.3; 1985, c. 42; 1987, cc. 523, 536, 545; 1989, c. 303; 1997, c. 494; 2001, c. 590; 2002, cc. 575, 598, 673; 2003, cc. 288, 870; 2009, cc. 52, 693; 2011, c. 400; 2014, c. 805.

    Acts 2015, c. 684, cl. 7 provides: “That the repeal of §§ 33.2-348 , 33.2-361 , 33.2-362, and 33.2-364 of the Code of Virginia shall not affect the expenditure of funds that are allocated pursuant to those sections by July 1, 2016.”

    § 33.2-363. Construction of U.S. Route 29 bypass.

    If the construction of a U.S. Route 29 bypass around any city located in any county that both (i) is located outside Planning District 8 and (ii) operates under the county executive form of government is not constructed because of opposition from a metropolitan planning organization, and the Federal Highway Administration requires the Commonwealth to reimburse the federal government for federal funds expended in connection with such project, an amount equal to the amount of such reimbursement shall be deducted by the Board from funds allocated or allocable to the highway construction district in which the project was located. Furthermore, in the event of such nonconstruction, an amount equal to the total of all state funds expended on such project shall be deducted by the Board from funds allocated or allocable to the highway construction district in which the project was located.

    History. 2004, c. 1025, § 33.1-223.2:13; 2014, c. 805; 2015, c. 684.

    Editor’s note.

    Former § 33.1-223.2:13, from which this section was derived, was enacted as § 33.1-223.2:9 by Acts 2004, c. 1025, and subsequently renumbered at the direction of the Virginia Code Commission.

    The 2015 amendments.

    The 2015 amendment by c. 684 deleted “primary state highway system construction” following “Board from” twice.

    OPINIONS OF THE ATTORNEY GENERAL

    If the Charlottesville-Albemarle Metropolitan Planning Organization removes the U.S. Route 29 Bypass from its Six-Year Transportation Improvement Plan

    and the Federal Highway Administration requires the Commonwealth to reimburse the funds spent on the Bypass, an amount equal to such reimbursement would be deducted from the primary system highway construction funds for the Department of Transportation district in which the Bypass is located. Further, an amount equal to all state funds expended on the Bypass would be deducted from the primary system highway construction funds allocated to such district. See opinion of Attorney General to The Honorable Stephen D. Newman, Member, Senate of Virginia, 07-069 (10/4/07) (decided under prior law).

    § 33.2-364. Repealed by Acts 2015, ch. 684, cl. 5.

    Editor’s note.

    Former § 33.2-364 , allocation of construction funds within secondary state highway system, derived from Acts 1977, c. 578, § 33.1-23.4; 1978, c. 145; 1985, c. 42; 2003, c. 887; 2004, c. 791; 2007, c. 153; 2014, c. 805.

    Acts 2015, c. 684, cl. 7 provides: “That the repeal of §§ 33.2-348 , 33.2-361 , 33.2-362, and 33.2-364 of the Code of Virginia shall not affect the expenditure of funds that are allocated pursuant to those sections by July 1, 2016.”

    § 33.2-365. Allocation of proceeds of Commonwealth of Virginia Transportation Capital Projects Revenue Bonds.

    The Board shall allocate, use, and distribute the proceeds of any bonds it is authorized to issue on or after July 1, 2007, pursuant to subdivision 10 of § 33.2-1701 , as follows:

    1. A minimum of 20 percent of the bond proceeds shall be used for transit capital as further described in § 33.2-1526.2 .
    2. A minimum of 4.3 percent of the bond proceeds shall be used for rail capital consistent with the provisions of §§ 33.2-1526.2 and 33.2-1602 .
    3. The remaining amount of bond proceeds shall be used for paying the costs incurred or to be incurred for construction of transportation projects with such bond proceeds used or allocated as follows: (i) first, to match federal highway funds projected to be made available and allocated to highway and public transportation capital projects to the extent determined by the Board, for purposes of allowing additional state construction funds to be allocated pursuant to § 33.2-358 ; (ii) second, to provide any required funding to fulfill the Commonwealth’s allocation of equivalent revenue sharing matching funds pursuant to § 33.2-357 to the extent determined by the Board; and (iii) third, to pay or fund the costs of statewide or regional projects throughout the Commonwealth. Costs incurred or to be incurred for construction or funding of these transportation projects shall include environmental and engineering studies; rights-of-way acquisition; improvements to all modes of transportation; acquisition, construction, and related improvements; and any financing costs or other financing expenses relating to such bonds. Such costs may include the payment of interest on such bonds for a period during construction and not exceeding one year after completion of construction of the relevant project.
    4. The total amount of bonds authorized shall be used for purposes of applying the percentages in subdivisions 1, 2, and 3.

    History. 2007, c. 896, § 33.1-23.4:01; 2011, cc. 830, 868; 2013, c. 639; 2014, c. 805; 2015, c. 684; 2020, cc. 1230, 1275.

    The 2015 amendments.

    The 2015 amendment by c. 684 substituted “allocated pursuant to § 33.2-358 ” for “allocated to the primary, urban, and secondary highway systems pursuant to subdivisions C 1, 2, and 3 of § 33.2-358 ” in subdivision 3.

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and substituted “§ 33.2-1526.2 ” for “subdivision A 4 c of § 58.1-638 ” in subdivision 1; and substituted “§§ 33.2-1526.2 ” for “§§ 33.2-1601 ” in subdivision 2.

    § 33.2-366. Funds for counties that have withdrawn or elect to withdraw from the secondary state highway system.

    Pursuant to subsection A of § 33.2-358 , the Board shall make the following payments to counties that have withdrawn or elect to withdraw from the secondary state highway system under the provisions of § 11 of Chapter 415 of the Acts of Assembly of 1932 and that have not elected to return: to any county having withdrawn prior to June 30, 1985, and having an area greater than 100 square miles, an amount equal to $12,529 per lane-mile for fiscal year 2014, and to any county having an area less than 100 square miles, an amount equal to $17,218 per lane-mile for fiscal year 2014; to any county that elects to withdraw after June 30, 1985, the Board shall establish a rate per lane-mile for the first year using (i) an amount for maintenance based on maintenance standards and unit costs used by the Department to prepare its secondary state highway system maintenance budget for the year in which the county withdraws and (ii) an amount for administration equal to five percent of the maintenance figure determined in clause (i). The payment rates shall be adjusted annually by the Board in accordance with procedures established for adjusting payments to cities and towns under § 33.2-319 , and lane mileage shall be adjusted annually to include (a) streets and highways accepted for maintenance in the county system by the local governing body or (b) streets and highways constructed according to standards set forth in the county subdivision ordinance or county thoroughfare plan, and being not less than the standards set by the Department. Such counties shall be eligible to receive allocations pursuant to subsection B of § 33.2-358 .

    Payment of the funds shall be made in four equal sums, one in each quarter of the fiscal year.

    The chief administrative officer of such counties receiving such funds shall make annual reports of expenditures to the Board, in such form as the Board shall prescribe, accounting for all expenditures, including delineation between construction and maintenance expenditures and reporting on their performance as specified in subsection B of § 33.2-352 . Such reports shall be included in the scope of the annual audit of each county conducted by independent certified public accountants.

    History. 1985, c. 42, § 33.1-23.5:1; 2004, c. 118; 2013, c. 766; 2013, Sp. Sess. I, c. 1; 2014, c. 805; 2015, c. 684; 2020, cc. 1230, 1275.

    The 2015 amendments.

    The 2015 amendment by c. 684 substituted “be eligible to receive allocations pursuant to subsection C or D of § 33.2-358 ” for “in addition, each receive for construction from funds allocated pursuant to subdivision C 3 of § 33.2-358 an annual amount calculated in the same manner as payments for construction in the secondary state highway system are calculated” at the end of the first paragraph; deleted “and shall be reduced in the case of each such county by the amount of federal-aid construction funds credited to each such county” at the end of the second paragraph.

    The 2020 amendments.

    The 2020 amendments by cc. 1230 and 1275 are identical, and in the first paragraph, substituted “subsection A” for “subsection B” and “subsection B” for “subsection C or D.”

    § 33.2-367. Highway aid to mass transit.

    In allocating highway funds, the Board may use such funds for highway aid to mass transit facilities when such use will best accomplish the purpose of serving the transportation needs of the greatest number of people.

    Highway aid to mass transit may be accomplished by (i) using highway funds to aid in paying transit operating costs borne by localities; (ii) acquiring or constructing transit-related highway facilities such as exclusive bus lanes; bus turn-outs; bus passenger shelters; fringe parking facilities, including necessary access roads, to promote transit use and relieve highway congestion; and off-street parking facilities to permit exclusive use of curb lane by buses; or (iii) permitting mass transit facilities to occupy highway median strips without the reimbursement required by § 33.2-1015 , all to the end that highway traffic may be relieved through the development of more efficient mass transit.

    Expenditures pursuant to this section shall be made from funds available for the construction of state highways within the highway construction district in which the transit facilities are wholly or partly located.

    The Board may contract with the governing bodies constituting a transportation district, or in its discretion, other local governing bodies, for the accomplishment of a project to which funds have been allocated under the provisions of this section. Whenever such projects are being financed by advance annual allocation of funds, the Board may make such funds available to the contracting governing bodies in annual increments that may be used for other transit purposes until needed for the project for which allocated; however, the Board may require bond or other satisfactory assurance of final completion of the contract.

    The Board may also, at the request of local governing bodies, use funds allocated for urban highways or secondary highways within their jurisdiction to accomplish the purposes of this section.

    The General Assembly may, through the general appropriation act, provide for (i) limits on the amounts or purposes of allocations made under this section and (ii) the transfer of allocations from one eligible recipient to another.

    History. Code 1950, § 33-35.8; 1970, c. 503, § 33.1-1; 1972, c. 490; 1973, c. 508, § 33.1-46.1; 1977, c. 578; 1980, c. 373; 1986, c. 392; 1998, cc. 905, 907; 2014, c. 805.

    § 33.2-368. Financial plans for transportation construction projects.

    For transportation construction projects valued in excess of $100 million, the Commissioner of Highways shall require that a financial plan be prepared and presented to the Board for its review. This plan shall include, but not be limited to, the following: (i) a complete cost estimate for all major project elements, (ii) an implementation plan with the project schedule and cost-to-complete information presented for each year, (iii) identified revenues by funding source available each year to meet project costs, (iv) a detailed cash-flow analysis for each year of the proposed project, and (v) efforts to be made to ensure maximum involvement of private enterprise and private capital.

    History. 2013, cc. 585, 646, § 33.1-23.5:3; 2014, c. 805.

    § 33.2-369. State of good repair.

    1. As used in this section, “state of good repair purposes” means improvement of deficient pavement conditions and improvement of structurally deficient bridges.
    2. The Board shall use funds allocated in § 33.2-358 and § 58.1-1741 to state of good repair purposes for reconstruction and replacement of structurally deficient state and locally owned bridges and reconstruction and rehabilitation of pavement on the Interstate System and primary state highway system determined to be deteriorated by the Board, including municipality-maintained primary extensions.The Board shall allocate these funds to projects in all nine highway construction districts for state of good repair purposes based on a priority ranking system that takes into consideration (i) the number, condition, and costs of structurally deficient bridges and (ii) the mileage, condition, and costs to replace deteriorated pavements. The Board shall ensure an equitable needs-based distribution of funding among the highway construction districts, with no district receiving more than 17.5 percent or less than 5.5 percent of the total funding allocated in any given year. The Board may, by a duly adopted resolution, waive the cap provided in this section for a fiscal year only when it determines that due to extraordinary circumstances or needs the cap inhibits the ability of the Department to address a key pavement or bridge need that has been identified.
    3. In any year in which the Department has not met the established targets for secondary pavements developed in accordance with § 33.2-232 and before making the allocations in subsection B, the Board may allocate up to 20 percent of these funds to all nine highway construction districts to improve the condition of secondary pavements. The Board shall ensure an equitable needs-based distribution of funds among highway construction districts based on the mileage, condition, and cost to improve secondary pavements.

    History. 2015, c. 684.

    Editor’s note.

    Acts 2015, c. 684, cl. 2 provides: “That the Commonwealth Transportation Board shall develop the priority ranking system pursuant to § 33.2-369 as added by this act by July 1, 2016.”

    § 33.2-370. High-priority projects program.

    1. As used in this section, “high-priority projects” means those projects of regional or statewide significance, such as projects that reduce congestion or increase safety, accessibility, environmental quality, or economic development.
    2. The Board shall establish a high-priority projects program and shall use funds allocated in § 33.2-358 to the program for projects and strategies that address a transportation need identified for a corridor of statewide significance or a regional network in the Statewide Transportation Plan pursuant to § 33.2-353 . From funds allocated to this program, the Board shall allocate funds to the Innovation and Technology Transportation Fund, provided that the allocation shall not exceed $25 million annually.In selecting projects and strategies for funding under this program, the Board shall screen, evaluate, and select candidate projects and strategies according to the process established pursuant to subsection B of § 33.2-214.1 .

    History. 2015, c. 684.

    § 33.2-371. Highway construction district grant programs.

    1. As used in this section:“Land area” means the total land area of the counties within a highway construction district reduced by the area of any military reservations and state or national parks or forests within its boundaries and such other similar areas and facilities of five square miles in area or more, as may be determined by the Board.“Population” means the population according to the latest U.S. census or the latest population estimates made by the Weldon Cooper Center for Public Service of the University of Virginia, whichever is more recent.
    2. The Board shall establish a grant program in each highway construction district to fund projects and strategies that address a need in the Statewide Transportation Plan developed pursuant to § 33.2-353 .
    3. The Board shall solicit candidate projects and strategies from local governments for consideration in the applicable highway construction district’s grant program. Candidate projects and strategies shall be screened, evaluated, and selected by the Board according to the process established pursuant to subsection B of § 33.2-214.1 but shall be within a highway construction district and not outside such highway construction district. Candidate projects and strategies from localities within a highway construction district shall be scored against projects and strategies within the same highway construction district. Only those candidate projects and strategies submitted by a locality shall be funded.
    4. Funds allocated to this program under § 33.2-358 shall be distributed to each highway construction district for that district’s grant program as follows:
      1. Thirty percent based on the ratio of the population of the cities and towns eligible to receive payments pursuant to § 33.2-319 within a highway construction district to the total population of the cities and towns eligible to receive payments pursuant to § 33.2-319 within the Commonwealth;
      2. Twenty-eight percent based on the ratio of vehicle miles traveled on primary highways within the highway construction district to the total vehicle miles traveled on primary highways in the Commonwealth;
      3. Twenty-four percent based on the ratio of the population of counties within a highway construction district to the total population of all counties within the Commonwealth;
      4. Ten percent based on the ratio of the number of primary lane-miles in the highway construction district to the total number of primary lane-miles within the Commonwealth;
      5. Six percent based on the ratio of the land area of counties within the highway construction district to the total land area of counties within the Commonwealth; and
      6. Two percent based on a primary need factor based on addressing the largest under-allocation to highway construction districts relative to primary needs.
    5. Projects awarded funds under a grant program established by this section may be administered by the local government pursuant to § 33.2-228 or by the Department.

    History. 2015, c. 684.

    § 33.2-372. Interstate Operations and Enhancement Program.

    1. The Board shall establish the Interstate Operations and Enhancement Program (the Program) to improve the safety, reliability, and travel flow along interstate highway corridors in the Commonwealth.
    2. The Board may use funds in the Program to address identified needs in the Statewide Transportation Plan pursuant to § 33.2-353 or an interstate corridor plan approved by the Board through (i) operational and transportation demand management strategies and (ii) other transportation improvements, strategies, or services.
    3. The Board, with the assistance of the Office of Intermodal Planning and Investment, shall establish a process to evaluate and prioritize potential strategies and improvements, with priority given first to operational and transportation demand management strategies that improve reliability and safety of travel.
    4. The Board may not use funds in the Program to supplant existing levels of support as of July 1, 2019, for existing operational and transportation demand management strategies.
    5. The Board shall distribute to the Interstate 81 Corridor Improvement Fund established pursuant to 33.2-3601 an amount equal to the revenues provided to the Program multiplied by the ratio of the vehicle miles traveled on Interstate 81 by vehicles classified as Class 6 or higher by the Federal Highway Administration to the total vehicle miles traveled on all interstate highways in the Commonwealth by vehicles classified as Class 6 or higher.
    6. The Board shall distribute to the Northern Virginia Transportation Authority Fund established pursuant to § 33.2-2509 an amount equal to the revenues provided to the Program multiplied by the ratio of vehicle miles traveled on interstate highways in Planning District 8 by vehicles classified as Class 6 or higher by the Federal Highway Administration to the total vehicles miles traveled on all interstate highways in the Commonwealth by vehicles classified as Class 6 or higher.
    7. For any interstate highway with more than 10 percent of total vehicle miles traveled by vehicles classified as Class 6 or higher by the Federal Highway Administration, the Board shall ensure that the total long-term expenditure for each interstate highway shall be approximately equal to the proportion of the total revenue deposited in the Fund attributable to each interstate highway based on such interstate highway’s proportional share of interstate vehicle miles traveled by vehicles classified as Class 6 or higher.

    History. 2020, cc. 1230, 1275.

    Editor’s note.

    Acts 2020, cc. 1230 and 1275, cl. 8 provides: “That the prioritization process established pursuant to subsection C of § 33.2-372 of the Code of Virginia, as created by this act, shall not apply to projects and strategies included or identified in the Interstate 81 Corridor Improvement Plan adopted by the Commonwealth Transportation Board on December 5, 2018.”

    § 33.2-373. Virginia Highway Safety Improvement Program.

    1. The Board shall establish the Virginia Highway Safety Improvement Program (the Program) to reduce motorized and nonmotorized fatalities and severe injuries on highways in the Commonwealth, whether such highways are state or locally maintained. The Board shall use funds set aside pursuant to § 33.2-358 for the Program.
    2. Beginning in fiscal year 2024, the Board shall, after program administration costs, allocate the funds in accordance with its adopted investment strategy pursuant to subsection C as follows:
      1. At least 54 percent for infrastructure projects that address a hazardous road location or feature and address an identified highway safety problem;
      2. At least 29 percent for strategies and activities to address behavioral causes of crashes that result in fatalities and severe injuries; and
      3. The remaining amount for eligible purposes under this section pursuant to the investment strategy adopted pursuant to subsection C.
    3. The Board shall adopt an investment strategy to guide the investments of the Program. The strategy shall cover a period of at least five years and seek to achieve a significant reduction in the anticipated number of fatalities and severe injuries over the covered period and shall give priority to projects, strategies, and activities based on the expected reduction in fatalities and severe injuries relative to cost, including improvements that are widely implemented based on a high-risk roadway feature that is correlated with a particular crash type, rather than crash frequency.

    History. 2020, cc. 1230, 1275.

    § 33.2-374. Special Structure Program.

    1. For purposes of this section, “special structure” means very large, indispensable, and unique bridges and tunnels identified by the Commissioner and approved by the Commonwealth Transportation Board.
    2. The General Assembly declares it to be in the public interest that the maintenance, rehabilitation, and replacement of special structures in the Commonwealth occur timely as to provide and protect a safe and efficient highway system.
    3. The Board shall establish a program for the maintenance, rehabilitation, and replacement of special structures in the Commonwealth. With the assistance of the Department of Transportation, the Board shall develop and maintain a plan for the maintenance, rehabilitation, and replacement of special structures in the Commonwealth. The plan shall cover at a minimum a 30-year period and shall be updated biennially no later than November 1 of each even-numbered year.
    4. The Board shall use the funds allocated in §§ 33.2-1524 and 33.2-1530 to the Special Structure Fund pursuant to § 33.2-1532 for maintenance, rehabilitation, and replacement of special structures to implement the plan developed pursuant to subsection C.

    History. 2020, cc. 1230, 1275.

    Chapter 4. Limited Access Highways, Scenic Highways and Virginia Byways, and Highways Over Dams.

    § 33.2-400. Definitions.

    As used in this chapter, unless the context requires a different meaning:

    “Limited access highway” means a highway especially designed for through traffic, over which abutters have no easement or right of light, air, or access by reason of the fact that their property abuts upon such limited access highway.

    “Scenic highway” means a highway, designated as such by the Board, within a protected scenic corridor located, designed, and constructed so as to preserve and enhance the natural beauty and cultural value of the countryside.

    “Virginia byway” means a highway, designated as such by the Board, having relatively high aesthetic or cultural value, leading to or within areas of historical, natural, or recreational significance.

    History. Code 1950, §§ 33-37, 33-43.3; 1966, c. 11; 1970, c. 322, §§ 33.1-57, 33.1-64; 2014, c. 805.

    Cross references.

    As to limited access streets, see § 15.2-2026 .

    § 33.2-401. Power and authority of Commonwealth Transportation Board relating to limited access highways.

    The Board may plan, designate, acquire, open, construct, reconstruct, improve, maintain, discontinue, abandon, and regulate the use of limited access highways in the same manner in which it is now or may be authorized to plan, designate, acquire, open, construct, reconstruct, improve, maintain, discontinue, abandon, and regulate the use of other highways within the Commonwealth. The Board shall also have any and all other additional authority and power relative to other highways, which shall include the right to acquire by purchase, eminent domain, grant, or dedication title to such lands or rights-of-way for such limited access highways.

    Notwithstanding any other provisions of this Code, any highway, street, or portion thereof to which access rights of abutters have been acquired by the Board and which is subsequently incorporated into the street system of a city or town by any method shall remain limited access until and unless the governing body of the city or town, after securing the approval of the Board, acts to discontinue such limited access feature.

    History. Code 1950, § 33-38; 1950, p. 476; 1962, c. 348; 1970, c. 322, § 33.1-58; 2014, c. 805.

    Cross references.

    As to authority of Commonwealth Transportation Board to prohibit certain uses of interstate and other controlled access highways, see § 46.2-808 .

    § 33.2-402. Designating existing highway as limited access highway; extinguishing easements of access.

    The Board may designate all or any part of an existing highway as a limited access highway. When an existing highway is so designated, the Board shall where necessary extinguish all existing easements of access, light, or air.

    History. Code 1950, § 33-39; 1950, p. 476; 1958, c. 571; 1970, c. 322, § 33.1-59; 2014, c. 805.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    This section contemplated the extinguishment of easements of abutting landowners upon the conversion of a conventional highway into a limited access highway. State Hwy. & Transp. Comm'r v. Linsly, 223 Va. 437 , 290 S.E.2d 834, 1982 Va. LEXIS 222 (1982).

    Reduction or limitation of direct access to an abutting landowner’s property generally is not compensable. State Hwy. & Transp. Comm'r v. Linsly, 223 Va. 437 , 290 S.E.2d 834, 1982 Va. LEXIS 222 (1982).

    Test for determination of damages in converting highway. —

    In condemnation proceedings for acquisition of land and easements in the conversion of a conventional highway into a limited access highway, the same test for the determination of damages must be applied as in other cases where the commissioner exercises the right of eminent domain. The damage figure is the difference between the value of the residue immediately before and immediately after the taking. State Hwy. & Transp. Comm'r v. Linsly, 223 Va. 437 , 290 S.E.2d 834, 1982 Va. LEXIS 222 (1982).

    Difference in fair market value. —

    The damage, if any, to the residue, over and above any enhancement, is the difference in fair market value immediately before and immediately after the taking. State Hwy. & Transp. Comm'r v. Linsly, 223 Va. 437 , 290 S.E.2d 834, 1982 Va. LEXIS 222 (1982).

    It was proper to permit the commissioners, in ascertaining damages, to consider the effect on market value of the substitution of indirect access for the easements that formerly afforded direct access to highway. State Hwy. & Transp. Comm'r v. Linsly, 223 Va. 437 , 290 S.E.2d 834, 1982 Va. LEXIS 222 (1982).

    Contract to keep crossover open. —

    In the absence of authority from the General Assembly, neither the right-of-way engineer who dealt with an adjoining property owner, nor Commission (now Board) itself had power to create a servitude on the property of the Commonwealth for the benefit of a property owner by contracting that a crossover in a limited access highway should always remain open. Even the power of the General Assembly to grant such a right or privilege might well be limited by Va. Const., Art. IV, § 14 (18), relating to special privileges, and by Va. Const., Art. IX, § 6, prohibiting any abridgement of the police power. Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722, 1959 Va. LEXIS 129 (1959).

    § 33.2-403. Business enterprises restricted on limited access highway right-of-way.

    No commercial establishment or business enterprise shall be constructed or located upon any right-of-way of any limited access highway.

    History. Code 1950, § 33-40.1; 1958, c. 490; 1970, c. 322, § 33.1-60; 2014, c. 805.

    § 33.2-404. Service roads parallel to limited access highways; standards for access, service, etc.

    The Department may construct service roads parallel to a limited access highway in order to provide access at designated points for property owners abutting on the limited access highway and after the construction of such service roads shall maintain and regulate traffic over them.

    The construction or alteration of any access, feeder, or service road that is to serve properties isolated by construction of a limited access highway shall meet all minimum state standards or the standards of the cities or towns with a population of more than 3,500, or of counties that maintain their own road networks, as provided for by ordinance, whichever is more strict.

    History. Code 1950, § 33-41; 1970, c. 322, § 33.1-61; 2013, cc. 585, 646; 2014, c. 805.

    Cross references.

    As to limited access streets, see § 15.2-2026 .

    CASE NOTES

    Replacement of access roads taken for highway construction. —

    The Commission (now Board) is authorized by this section to construct service roads to replace the access roads taken for the construction of limited access highways. Such a road is for a public purpose and the Commissioner may condemn land for its construction. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972) (decided under prior law).

    The necessity or expediency of a service road is a legislative question, which has been delegated to the Commission (now Board). The public official or body charged with the duty of determining the location of a public road ordinarily may exercise a large discretion, and a hearing on determining the location of the road is not essential to due process under the federal and state Constitutions. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972) (decided under prior law).

    § 33.2-405. Designation of scenic highways and Virginia byways.

    The Board is authorized to designate any highway as a scenic highway or as a Virginia byway. This designation shall be made in cooperation with the Director of the Department of Conservation and Recreation. Prior to designation, the local governing body and local planning commission, if any, in each county or city wherein the proposed scenic highway or Virginia byway is located shall be given notice and, upon request by any of the local governing bodies, the Board shall hold a hearing in one of the counties or cities wherein the proposed scenic highway or Virginia byway is located.

    History. Code 1950, § 33-43.1; 1966, c. 11; 1970, c. 322, § 33.1-62; 1974, c. 319; 1984, c. 739; 1989, c. 656; 2014, c. 805.

    Cross references.

    As to limitation on local government authority over silvicultural practices, see § 10.1-1126.1 .

    Editor’s note.

    Acts 2016, c. 601, cl. 1 provides “Notwithstanding § 33.2-405 of the Code of Virginia, the portion of Virginia Route 72 from Coeburn to Weber City, the portion of Virginia Route 619 from Norton to Fort Blackmore, and the portion of U.S. Route 58 Alternate from Coeburn to Norton is hereby designated a Virginia byway to be known as the ‘Thomas Jefferson Scenic Byway Loop.’ The Department of Transportation shall place and maintain appropriate markers indicating the designation of this Virginia byway. This designation shall not affect any other designation heretofore or hereafter applied to this highway or any portions thereof.”

    § 33.2-406. Selecting Virginia byways.

    In selecting a Virginia byway, the Board and the Director of the Department of Conservation and Recreation shall give preference to corridors controlled by zoning or otherwise, so as to reasonably protect the aesthetic or cultural value of the highway.

    History. Code 1950, § 33-43.2; 1966, c. 11; 1970, c. 322, § 33.1-63; 1984, c. 739; 1989, c. 656; 2014, c. 805.

    § 33.2-407. Signage of scenic highways and Virginia byways.

    When the Board designates a highway as a scenic highway or as a Virginia byway, it shall be appropriately signed as such.

    History. Code 1950, § 33-43.4; 1966, c. 11; 1970, c. 322, § 33.1-65; 2014, c. 805.

    § 33.2-408. Acquisition of adjacent land.

    When the Board has designated a highway as a Virginia byway or as a scenic highway, the Commissioner of Highways may acquire by gift or purchase such land, or interests therein, of primary importance for the preservation of natural beauty adjacent to Virginia byways or scenic highways.

    History. Code 1950, § 33-43.5; 1966, c. 11; 1970, c. 322, § 33.1-66; 2014, c. 805.

    Cross references.

    As to limitation on local government authority over silvicultural practices, see § 10.1-1126.1 .

    § 33.2-409. Duty of owner or occupier of dam over which state highway passes; penalty.

    Every owner or occupier of a dam over which a state highway passes shall keep such dam in good order, at least 12 feet wide at the top, and also keep in good order the substructure of a bridge of like width over the pier heads, floodgates, or any wastecut through or around the dam, provided that when these requirements have been met, the superstructure of any such bridge shall be maintained by the Commissioner of Highways. The Commissioner of Highways shall inspect all such bridges and report any needed repairs to the owner in writing. If such owner fails to comply with the provisions of this chapter, he is guilty of a misdemeanor punishable by a fine of $2 for every such failure of 24 hours. However, if a milldam is carried away or destroyed by flood or any other extraordinary natural cause, the owner or occupier thereof shall not be subject to such fine until one month after any mill operated in whole or in part by water impounded by such dam has been put into operation by such waterpower.

    History. Code 1950, § 33-90; 1970, c. 322, § 33.1-176; 2014, c. 805.

    § 33.2-410. Duties of Commissioner of Highways related to dams over which a state highway passes.

    The Commissioner of Highways may, at his own cost and expense, widen or strengthen any dam or bridge over which a state highway passes to a sufficient width to provide properly for traffic that uses that section of highway of which such dam or bridge forms a part. The Commissioner of Highways shall maintain the highway surface on such sections of highway.

    History. Code 1950, § 33-91; 1970, c. 322, § 33.1-177; 2014, c. 805.

    § 33.2-411. Raising or lowering floodgates.

    The owner or occupier of a dam shall raise or lower the floodgates on such dam when there is an impending flood in order to reduce the level of the water in the pond, and when it comes to the attention of the Commissioner of Highways that this has not been done, or that the owner is unable to reach the spillway in order to do so, the Commissioner of Highways may perform this duty.

    History. Code 1950, § 33-92; 1970, c. 322, § 33.1-178; 2014, c. 805.

    § 33.2-412. Reconstruction if dam is washed out.

    If a dam is washed out and the owner refuses to replace the dam, the Commissioner of Highways, with or without the consent of such owner or occupier, may construct a highway across the dam, but in case the owner desires to replace the dam and use the pond, he shall be permitted to do so by paying to the Commissioner of Highways one-half of the cost and expenses of replacing the dam, up to a width of 12 feet at the top, and the difference between the cost, if any, of replacing the bridge normally required to carry the water of the stream and the cost of a bridge that includes floodgates and adequate spillway.

    History. Code 1950, § 33-93; 1970, c. 322, § 33.1-179; 2014, c. 805.

    § 33.2-413. When larger spillway required.

    In case the earthen portion of a dam has been washed away and it is determined by the Commissioner of Highways that the washout was caused by a spillway of insufficient opening to carry floodwater, the dam shall not be restored for the purpose of impounding water unless the owner or occupier agrees with the Commissioner of Highways to the construction of a spillway with adequate opening, conforming to plans and specifications of the Department. In the event that such construction is required, the Commissioner of Highways shall be responsible for such part of the cost as would be necessary to provide a bridge with sufficient opening to carry the floodwater of the stream, and the owner or occupier of the dam shall be required to pay the difference in cost, if any, of providing adequate floodgates and spillways in addition to the bridge.

    History. Code 1950, § 33-94; 1970, c. 322, § 33.1-180; 2014, c. 805.

    § 33.2-414. Application to county roads.

    Sections 33.2-409 through 33.2-413 shall also apply to dams, over which pass public roads that are not in the primary or secondary state highway system, and to the owners and occupiers thereof. As to any such dam and the owner or occupier thereof, the powers conferred and imposed upon the Commissioner of Highways in §§ 33.2-409 through 33.2-413 shall be vested in and imposed upon the governing body of the county in which such dam is located.

    History. Code 1950, § 33-95; 1970, c. 322, § 33.1-181; 2014, c. 805.

    Chapter 5. High-Occupancy Vehicle Lanes and High-Occupancy Toll Lanes.

    § 33.2-500. Definitions.

    As used in this chapter, unless the context requires a different meaning:

    “High-occupancy requirement” means the number of persons required to be traveling in a vehicle for the vehicle to use HOT lanes without the payment of a toll. Emergency vehicles, law-enforcement vehicles being used in HOT lanes in the performance of law-enforcement duties, which shall not include the use of such vehicles for commuting to and from the workplace or for any purpose other than responding to an emergency incident, patrolling HOT lanes pursuant to an agreement by a state agency with the HOT lanes operator, or the time-sensitive investigation, active surveillance, or actual pursuit of persons known or suspected to be engaged in or with knowledge of criminal activity, and mass transit vehicles and commuter buses shall meet the high-occupancy requirement for HOT lanes, regardless of the number of occupants in the vehicle.

    “High-occupancy toll lanes” or “HOT lanes” means a highway or portion of a highway containing one or more travel lanes separated from other lanes that (i) has an electronic toll collection system; (ii) provides for free passage by vehicles that meet the high-occupancy requirement, including mass transit vehicles and commuter buses; and (iii) contains a photo-enforcement system for use in such electronic toll collection. HOT lanes shall not be a “toll facility” or “HOV lanes” for the purposes of any other provision of law or regulation.

    “High-occupancy vehicle lanes” or “HOV lanes” means a highway or portion of a highway containing one or more travel lanes for the travel of high-occupancy vehicles or buses as designated pursuant to § 33.2-501 .

    “HOT lanes operator” means the operator of the facility containing HOT lanes, which may include the Department of Transportation or some other entity.

    “Mass transit vehicles” and “commuter buses” means vehicles providing a scheduled transportation service to the general public. Such vehicles shall comprise nonprofit, publicly or privately owned or operated transportation services, programs, or systems that may be funded pursuant to § 58.1-638 .

    “Owner” means the registered owner of a vehicle on record with the Department of Motor Vehicles or with the equivalent agency in another state. “Owner” does not include a vehicle rental or vehicle leasing company.

    “Photo-enforcement system” means a sensor installed in conjunction with a toll collection device to detect the presence of a vehicle that automatically produces one or more photographs, one or more microphotographs, a videotape, or other recorded images of each vehicle’s license plate at the time it is detected by the toll collection device.

    “Unauthorized vehicle” means a motor vehicle that is restricted from use of the HOT lanes pursuant to subdivision 4 a of § 33.2-503 or does not meet the high-occupancy requirement and indicates with its electronic toll collection device that it meets the applicable high-occupancy requirements.

    History. 2004, c. 783, § 33.1-56.1; 2008, cc. 167, 280; 2013, c. 195; 2014, c. 805; 2015, c. 73; 2016, c. 753.

    Editor’s note.

    Acts 2016, c. 753, cl. 4 provides: “That the provisions of this act shall apply to violations that occur on or after July 1, 2016.”

    The 2015 amendments.

    The 2015 amendment by c. 73 substituted “being used in” for “using” and “law-enforcement duties” for “their duties,” inserted “or for any purpose other than responding to an emergency incident, patrolling HOT lanes pursuant to an agreement by a state agency with the HOT lanes operator, or the time-sensitive investigation, active surveillance, or actual pursuit of persons known or suspected to be engaged in or with knowledge of criminal activity” in the definition of “High-occupancy requirement.”

    The 2016 amendments.

    The 2016 amendment by c. 753, in the definition for “High-occupancy toll lanes,” inserted “highway or” following “means a,” inserted the clause (i)-(iii) designations, inserted “including mass transit vehicles and commuter buses” in clause (ii); inserted “highway or” following “means a” in the definition of “High-occupancy vehicle lanes”; substituted “does not include” for “does not mean” in the definition for “Owner”; and added “or does not meet the high-occupancy requirement and indicates with its electronic toll collection device that it meets the applicable high-occupancy requirements” in the definition for “Unauthorized vehicle.” For applicability, see Editor’s note.

    Research References.

    Virginia Forms (Matthew Bender). No. 9-402 Summons (HOT Lane Violation).

    § 33.2-501. Designation of HOV lanes; use of such lanes; penalties.

    1. In order to facilitate the rapid and orderly movement of traffic to and from urban areas during peak traffic periods, the Board may designate one or more lanes of any highway in the Interstate System, primary state highway system, or secondary state highway system as HOV lanes. When lanes have been so designated and have been appropriately marked with signs or other markers as the Board may prescribe, they shall be reserved during periods designated by the Board for the exclusive use of buses and high-occupancy vehicles. Any local governing body may also, with respect to highways under its exclusive jurisdiction, designate HOV lanes and impose and enforce restrictions on the use of such lanes. Any highway for which the locality receives highway maintenance funds pursuant to § 33.2-319 shall be deemed to be within the exclusive jurisdiction of the local governing body for the purposes of this section. HOV lanes shall be reserved for high-occupancy vehicles of a specified number of occupants as determined by the Board or, for HOV lanes designated by a local governing body, by that local governing body. However, no designation of any lane or lanes of any highway as HOV lanes shall apply to the use of any such lanes by:
      1. Emergency vehicles such as firefighting vehicles and emergency medical services vehicles;
      2. Law-enforcement vehicles;
      3. Motorcycles;
        1. Transit and commuter buses designed to transport 16 or more passengers, including the driver;
        2. Any vehicle operating under a certificate issued under § 46.2-2075 , 46.2-2080 , 46.2-2096 , 46.2-2099.4 , or 46.2-2099.44 ;
      4. Vehicles of public utility companies operating in response to an emergency call;
      5. Vehicles bearing clean special fuel vehicle license plates issued pursuant to § 46.2-749.3 , provided such use is in compliance with federal law;
      6. Taxicabs having two or more occupants, including the driver; or
      7. (Contingent effective date)  Any active duty military member in uniform who is utilizing Interstate 264 and Interstate 64 for the purposes of traveling to or from a military facility in the Hampton Roads Planning District.In the Hampton Roads Planning District, HOV restrictions may be temporarily lifted and HOV lanes opened to use by all vehicles when restricting use of HOV lanes becomes impossible or undesirable and the temporary lifting of HOV limitations is indicated by signs along or above the affected portion of highway.The Commissioner of Highways shall implement a program of the HOV facilities in the Hampton Roads Planning District beginning not later than May 1, 2000. This program shall include the temporary lifting of HOV restrictions and the opening of HOV lanes to all traffic when an incident resulting from nonrecurring causes within the general lanes occurs such that a lane of traffic is blocked or is expected to be blocked for 10 minutes or longer. The HOV restrictions for the facility shall be reinstated when the general lane is no longer blocked and is available for use.The Commissioner of Highways shall maintain necessary records to evaluate the effects of such openings on the operation of the general lanes and the HOV lanes. This program will terminate if the Federal Highway Administration requires repayment of any federal highway construction funds because of the program’s impact on the HOV facilities in Hampton Roads.
    2. In designating any lane or lanes of any highway as HOV lanes, the Board or local governing body shall specify the hour or hours of each day of the week during which the lanes shall be so reserved, and the hour or hours shall be plainly posted at whatever intervals along the lanes the Board or local governing body deems appropriate. Any person driving a motor vehicle in a designated HOV lane in violation of this section is guilty of a traffic infraction, which shall not be a moving violation, and on conviction shall be fined $100. However, violations committed within the boundaries of Planning District 8 shall be punishable as follows:
      1. For a first offense, by a fine of $125;
      2. For a second offense within a period of five years from a first offense, by a fine of $250;
      3. For a third offense within a period of five years from a first offense, by a fine of $500; and
      4. For a fourth or subsequent offense within a period of five years from a first offense, by a fine of $1,000.Upon a conviction under this section, the court shall furnish to the Commissioner of the Department of Motor Vehicles in accordance with § 46.2-383 an abstract of the record of such conviction, which shall become a part of the person’s driving record. Notwithstanding the provisions of § 46.2-492 , no driver demerit points shall be assessed for any violation of this section, except that persons convicted of second, third, fourth, or subsequent violations within five years of a first offense committed in Planning District 8 shall be assessed three demerit points for each such violation.
    3. In the prosecution of an offense, committed in the presence of a law-enforcement officer, of failure to obey a road sign restricting a highway, or portion thereof, to the use of high-occupancy vehicles, proof that the vehicle described in the HOV violation summons was operated in violation of this section, together with proof that the defendant was at the time of such violation the registered owner of the vehicle, shall constitute in evidence a rebuttable presumption that such registered owner of the vehicle was the person who committed the violation. Such presumption shall be rebutted if the registered owner of the vehicle testifies in open court under oath that he was not the operator of the vehicle at the time of the violation. A summons for a violation of this section may be executed in accordance with § 19.2-76.2 . Such rebuttable presumption shall not arise when the registered owner of the vehicle is a rental or leasing company.
    4. Notwithstanding the provisions of § 19.2-76 , whenever a summons for a violation of this section is served in any locality, it may be executed by mailing by first-class mail a copy thereof to the address of the owner of the vehicle as shown on the records of the Department of Motor Vehicles. If the summoned person fails to appear on the date of return set out in the summons mailed pursuant to this section, the summons shall be executed in the manner set out in § 19.2-76.3 .No proceedings for contempt or arrest of a person summoned by mailing shall be instituted for his failure to appear on the return date of the summons.
    5. Notwithstanding § 33.2-613 , high-occupancy vehicles having three or more occupants (HOV-3) may be permitted to use the Omer L. Hirst-Adelard L. Brault Expressway (Dulles Toll Road) without paying a toll.
    6. Notwithstanding the contrary provisions of this section, the following conditions shall be met before the HOV-2 designation of Interstate 66 can be changed to HOV-3 or any more restrictive designation:
      1. The Department of Transportation shall publish a notice of its intent to change the existing designation and also immediately provide similar notice of its intent to all members of the General Assembly representing districts that touch or are directly impacted by traffic on Interstate 66.
      2. The Department of Transportation shall hold public hearings in the corridor to receive comments from the public.
      3. The Department of Transportation shall make a finding of the need for a change in such designation, based on public hearings and its internal data, and present this finding to the Board for approval.
      4. The Board shall make written findings and a decision based upon the following criteria:
        1. Is changing the HOV-2 designation to HOV-3 in the public interest?
        2. Is there quantitative and qualitative evidence that supports the argument that HOV-3 will facilitate the flow of traffic on Interstate 66?
        3. Is changing the HOV-2 designation beneficial to comply with the federal Clean Air Act Amendments of 1990?
        4. Has the change in designation been screened and evaluated by the Northern Virginia Transportation Authority according to the process established pursuant to subdivision 2 of § 33.2-2500 ?

    History. 1973, c. 197, § 33.1-46.2; 1983, c. 339; 1988, c. 637; 1989, cc. 573, 744; 1993, cc. 82, 587; 1994, cc. 212, 426, 439; 1995, c. 55; 1996, cc. 34, 187, 191, 695, 921, 1037; 1997, c. 504; 1998, c. 321; 1999, cc. 914, 960; 2000, c. 322; 2002, cc. 89, 757; 2003, c. 324; 2004, c. 704; 2006, cc. 600, 873, 908; 2007, c. 317; 2008, c. 511; 2009, c. 676; 2010, cc. 111, 133, 390, 485; 2011, cc. 735, 881, 889; 2012, cc. 681, 743; 2014, c. 805; 2015, cc. 256, 502, 503; 2016, cc. 699, 715; 2019, c. 749.

    Contingent effective date for subdivision A 8.

    Acts 2010, cc. 133 and 485, which added subdivision A 8 of former § 33.1-46.2, in cl. 2 provided that: “The provisions of this act shall only become effective upon approval by the Federal Highway Administration.” As of May 21, 2019, no approval had been received.

    Editor’s note.

    Acts 2016, c. 699, cl. 2 provides: “That the provisions of this act shall become effective on July 1, 2017.”

    Acts 2016, c. 699, cl. 3 provides: “That the provisions of this act shall expire on January 1, 2020.” The amendment by Acts 2016, c. 699 has expired.

    Acts 2016, c. 715, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2020.”

    The 2015 amendments.

    The 2015 amendment by c. 256 substituted “However” for “Notwithstanding the forgoing provisions of this section” in the last sentence of the subsection A introductory paragraph.

    The 2015 amendments by cc. 502 and 503 are identical, and in subdivision A 1, substituted “and emergency medical services” for “ambulances and rescue squad” at the end of the subdivision.

    The 2016 amendments.

    The 2016 amendment by c. 699, effective on July 1, 2017, rewrote subsection F. For expiration date, see Editor’s note.

    The 2016 amendment by c. 715, effective January 1, 2020, in subsection F, substituted “Interstate 66” for “Interstate Route 66 outside the Capital Beltway” in the introductory language, substituted “Interstate 66” for “Interstate Route 66” in subdivisions 1 and 4 b, and added subdivision 4 d.

    The 2019 amendments.

    The 2019 amendment by c. 749, in subdivision F 4 d, substituted “Northern Virginia Transportation Authority” for “Department of Transportation,” and substituted “subdivision 2 of § 33.2-2500 ” for “§ 33.2-257 .”

    CASE NOTES

    The cases cited below were decided under prior law.

    Suit challenging penalties barred by sovereign immunity. —

    Motorist’s suit against state DMV challenging penalties for failure to pay a ticket for misuse of a high occupancy vehicle lane was dismissed for lack of subject matter jurisdiction in the absence of either a consent to suit by the state, or a Congressional waiver of sovereign immunity under U.S. Const., amend. XI. Tinsley v. Virginia, No. 3:00CV670, 2001 U.S. Dist. LEXIS 25249 (E.D. Va. Feb. 15, 2001).

    CIRCUIT COURT OPINIONS

    Construction. —

    Appropriate signage must, at a minimum, warn drivers that the road they are about to enter is all lanes high-occupancy vehicle (HOV) during certain hours; given that the vast majority of HOV roads are one lane in each direction, and the highways are frequented by drivers from all over the United States and elsewhere, a sign that does not clearly warn drivers that the road ahead is all lanes HOV during the pertinent hours cannot be the predicate for finding a defendant guilty. Commonwealth v. Patton, 87 Va. Cir. 215, 2013 Va. Cir. LEXIS 94 (Fairfax County Oct. 29, 2013).

    Highway signs and markings provide notice to the public as to the rules, restrictions, and regulations that every motorist is expected to follow; it follows that an individual cannot be found guilty of a traffic offense if the sign that the offense is predicated upon is not properly posted or appropriately marked. Commonwealth v. Patton, 87 Va. Cir. 215, 2013 Va. Cir. LEXIS 94 (Fairfax County Oct. 29, 2013).

    Requirements that high-occupancy vehicle (HOV) lanes be appropriately marked and its restrictions properly posted are conditions precedent to finding a defendant guilty; both of these requirements appear prior to the violation provisions of the statute and mandate that the board must establish the appropriate markings in HOV lanes in order for those lanes to be reserved during periods designated by the Commonwealth Transportation Board for the exclusive use of buses and high-occupancy vehicles. Commonwealth v. Patton, 87 Va. Cir. 215, 2013 Va. Cir. LEXIS 94 (Fairfax County Oct. 29, 2013).

    Federal preemption. —

    Supremacy Clause, U.S. Const. art. IV, cl. 2, did not preempt Virginia from regulating the use of autocycles in the HOV lane where the federal government had neither explicitly stated that the classification of autocycle was prohibited by federal law nor legislated comprehensively regarding the ability of states to place greater limitations on HOV lanes. Moreover, although there were federal laws that define motorcycle, those laws were not enough to show that Congress had a clear intent to preempt state law. Commonwealth v. Stephens, 103 Va. Cir. 322, 2019 Va. Cir. LEXIS 624 (Fairfax County Oct. 31, 2019).

    No violation found. —

    Defendant did not commit a high-occupancy vehicle (HOV) violation because the markings and signs at an exit were inappropriate; the signage could not serve as fair warning to a driver that the roadway was all lanes HOV because a solo driver who viewed the signs on the highway during the pertinent HOV hours was already in violation of the HOV restrictions. Commonwealth v. Patton, 87 Va. Cir. 215, 2013 Va. Cir. LEXIS 94 (Fairfax County Oct. 29, 2013).

    § 33.2-502. Designation of HOT lanes.

    The Board may designate one or more lanes of any highway, including lanes that may previously have been designated HOV lanes under § 33.2-501 , in the Interstate System, primary state highway system, or National Highway System, or any portion thereof, as HOT lanes. In making HOT lanes designations, the Board shall also specify the high-occupancy requirement and conditions for use of such HOT lanes or may authorize the Commissioner of Highways to make such determination consistent with the terms of a comprehensive agreement executed pursuant to § 33.2-1808 . The high-occupancy requirement for a HOT lanes facility constructed or operated as a result of the Public-Private Transportation Act (§ 33.2-1800 et seq.) shall not be less than three.

    History. 2004, c. 783, § 33.1-56.2; 2014, c. 805.

    Editor’s note.

    Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 430 K, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 33.2-502 , Code of Virginia, the high-occupancy requirement for a HOT lane facility that is constructed as a result of the Public-Private Transportation Act (§ 33.2-1800 et. seq.) with an initial construction cost in excess of $3 billion and whose operation, maintenance, or financing is not a result of the same comprehensive agreement that resulted in the facility’s construction shall be not less than two.”

    § 33.2-503. HOT lanes enforcement.

    Any person operating a motor vehicle on designated HOT lanes shall make arrangements with the HOT lanes operator for payment of the required toll prior to entering such HOT lanes. The operator of a vehicle who enters the HOT lanes in an unauthorized vehicle, in violation of the conditions for use of such HOT lanes established pursuant to § 33.2-502 , without payment of the required toll or without having made arrangements with the HOT lanes operator for payment of the required toll shall have committed a violation of this section, which may be enforced in the following manner:

    1. On a form prescribed by the Supreme Court, a summons for a violation of this section may be executed by a law-enforcement officer, when such violation is observed by such officer. The form shall contain the option for the operator of the vehicle to prepay the unpaid toll and all penalties, administrative fees, and costs.
      1. A HOT lanes operator shall install and operate, or cause to be installed or operated, a photo-enforcement system at locations where tolls are collected for the use of such HOT lanes.
      2. A summons for a violation of this section may be executed when such violation is evidenced by information obtained from a photo-enforcement system as defined in this chapter. A certificate, sworn to or affirmed by a technician employed or authorized by the HOT lanes operator, or a facsimile of such a certificate, based on inspection of photographs, microphotographs, videotapes, or other recorded images produced by a photo-enforcement system, shall be prima facie evidence of the facts contained therein. Any photographs, microphotographs, videotape, or other recorded images evidencing such a violation shall be available for inspection in any proceeding to adjudicate the liability for such violation under this subdivision 2. Any vehicle rental or vehicle leasing company, if named in a summons, shall be released as a party to the action if it provides to the HOT lanes operator a copy of the vehicle rental agreement or lease or an affidavit identifying the renter or lessee prior to the date of hearing set forth in the summons. Upon receipt of such rental agreement, lease, or affidavit, a summons shall be issued for the renter or lessee identified therein. Release of this information shall not be deemed a violation of any provision of the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq.) or the Insurance Information and Privacy Protection Act (§ 38.2-600 et seq.).
      3. On a form prescribed by the Supreme Court, a summons issued under this subdivision 2 may be executed as provided in § 19.2-76.2 . Such form shall contain the option for the owner or operator to prepay the unpaid toll and all penalties, administrative fees, and costs. A summons for a violation of this section may set forth multiple violations occurring within one jurisdiction. Notwithstanding the provisions of § 19.2-76 , a summons for a violation of this section may be executed by mailing by first-class mail a copy thereof to the address of the owner or, if the owner has named and provided a valid address for the operator of the vehicle at the time of the violation in an affidavit executed pursuant to subdivision e, such named operator of the vehicle. Such summons shall be signed either originally or by electronic signature. If the summoned person fails to appear on the date of return set out in the summons mailed pursuant to this section, the summons shall be executed in the manner set out in § 19.2-76.3 .
      4. No summons may be issued by a HOT lanes operator for a violation of this section unless the HOT lanes operator can demonstrate that (i) there was an attempt to collect the unpaid tolls and applicable administrative fees through debt collection not less than 30 days prior to issuance of the summons and (ii) 120 days have elapsed since the unpaid toll or, in a summons for multiple violations, 120 days have elapsed since the most recent unpaid toll noticed on the summons. For purposes of this subdivision, “debt collection” means the collection of unpaid tolls and applicable administrative fees by (a) retention of a third-party debt collector or (b) collection practices undertaken by employees of a HOT lanes operator that are materially similar to a third-party debt collector.
      5. The owner of such vehicle shall be given reasonable notice by way of a summons as provided in this subdivision 2 that his vehicle had been used in violation of this section, and such owner shall be given notice of the time and place of the hearing and notice of the civil penalty and costs for such offense.It shall be prima facie evidence that the vehicle described in the summons issued pursuant to subdivision 2 was operated in violation of this section. Records obtained from the Department of Motor Vehicles pursuant to § 33.2-504 and certified in accordance with § 46.2-215 or from the equivalent agency in another state and certified as true and correct copies by the head of such agency or his designee identifying the owner of such vehicle shall give rise to a rebuttable presumption that the owner of the vehicle is the person named in the summons.Upon the filing of an affidavit with the court at least 14 days prior to the hearing date by the owner of the vehicle stating that he was not the operator of the vehicle on the date of the violation and providing the legal name and address of the operator of the vehicle at the time of the violation, a summons will also be issued to the alleged operator of the vehicle at the time of the offense. The affidavit shall constitute prima facie evidence that the person named in the affidavit was driving the vehicle at all the relevant times relating to the matter named in the affidavit.If the owner of the vehicle produces a certified copy of a police report showing that the vehicle had been reported to the police as stolen prior to the time of the alleged offense and remained stolen at the time of the alleged offense, then the court shall dismiss the summons issued to the owner of the vehicle.
      1. The HOT lanes operator may impose and collect an administrative fee in addition to the unpaid toll so as to recover the expenses of collecting the unpaid toll, which administrative fee shall be reasonably related to the actual cost of collecting the unpaid toll and not exceed $100 per violation. The operator of the vehicle shall pay the unpaid tolls and any administrative fee detailed in a notice or invoice issued by a HOT lanes operator. If paid within 60 days of notification, the administrative fee shall not exceed $25. The HOT lanes operator shall notify the owner of the vehicle of any unpaid tolls and administrative fees by mailing an invoice pursuant to § 46.2-819.6 .
      2. Upon a finding by a court of competent jurisdiction that the operator of the vehicle observed by a law-enforcement officer under subdivision 1 or the vehicle described in the summons for a violation issued pursuant to evidence obtained by a photo-enforcement system under subdivision 2 was in violation of this section, the court shall impose a civil penalty upon the operator of such vehicle issued a summons under subdivision 1, or upon the operator or owner of such vehicle issued a summons under subdivision 2, payable to the HOT lanes operator as follows: for a first offense, $50; for a second offense, $100; for a third offense within a period of two years of the second offense, $250; and for a fourth and subsequent offense within a period of three years of the second offense, $500, together with, in each case, the unpaid toll, all accrued administrative fees imposed by the HOT lanes operator as authorized by this section, and applicable court costs. The court shall remand penalties, the unpaid toll, and administrative fees assessed for violation of this section to the treasurer or director of finance of the county or city in which the violation occurred for payment to the HOT lanes operator for expenses associated with operation of the HOT lanes and payments against any bonds or other liens issued as a result of the construction of the HOT lanes. No person shall be subject to prosecution under both subdivisions 1 and 2 for actions arising out of the same transaction or occurrence.
      3. Notwithstanding subdivisions a and b, for a first conviction of an operator or owner of a vehicle under this section, the total amount for the first conviction shall not exceed $2,200, including civil penalties and administrative fees regardless of the total number of offenses the operator or owner of a vehicle is convicted of on that date.
      4. Upon a finding by a court that a resident of the Commonwealth has violated this section, in the event such person fails to pay the required penalties, fees, and costs, the court shall notify the Commissioner of the Department of Motor Vehicles, who shall suspend all of the registration certificates and license plates issued for any motor vehicles registered solely in the name of such person and shall not issue any registration certificate or license plate for any other vehicle that such person seeks to register solely in his name until the court has notified the Commissioner of the Department of Motor Vehicles that such penalties, fees, and costs have been paid. Upon a finding by a court that a nonresident of the Commonwealth has violated this section, in the event that such person fails to pay the required penalties, fees, and costs, the court shall notify the Commissioner of the Department of Motor Vehicles, who shall, when the vehicle is registered in a state with which the Commonwealth has entered into an agreement to enforce tolling violations pursuant to § 46.2-819.9 , provide to the entity authorized to issue vehicle registration certificates or license plates in the state in which the vehicle is registered sufficient evidence of the court’s finding to take action against the vehicle registration certificate or license plates in accordance with the terms of the agreement, until the court has notified the Commissioner of the Department of Motor Vehicles that such penalties, fees, and costs have been paid. Upon receipt of such notification from the court, the Commissioner of the Department of Motor Vehicles shall notify the state where the vehicle is registered of such payment. The HOT lanes operator and the Commissioner of the Department of Motor Vehicles may enter into an agreement whereby the HOT lanes operator may reimburse the Department of Motor Vehicles for its reasonable costs to develop, implement, and maintain this enforcement mechanism, and that specifies that the Commissioner of the Department of Motor Vehicles shall have an obligation to suspend such registration certificates or to provide notice to such entities in other states so long as the HOT lanes operator makes the required reimbursements in a timely manner in accordance with the agreement.
      5. An action brought under subdivision 1 or 2 shall be commenced within two years of the commission of the offense and shall be considered a traffic infraction. Except as provided in subdivisions 4 and 5, imposition of a civil penalty pursuant to this section shall not be deemed a conviction as an operator of a motor vehicle under Title 46.2 and shall not be made part of the driving record of the person upon whom such civil penalty is imposed, nor shall it be used for insurance purposes in the provision of motor vehicle insurance coverage.
      1. The HOT lanes operator may restrict the usage of the HOT lanes to designated vehicle classifications pursuant to an interim or final comprehensive agreement executed pursuant to § 33.2-1808 or 33.2-1809 . Notice of any such vehicle classification restrictions shall be provided through the placement of signs or other markers prior to and at all HOT lanes entrances.
      2. Any person driving an unauthorized vehicle on the designated HOT lanes is guilty of a traffic infraction, which shall not be a moving violation, and shall be punishable as follows: for a first offense, by a fine of $125; for a second offense within a period of five years from a first offense, by a fine of $250; for a third offense within a period of five years from a first offense, by a fine of $500; and for a fourth and subsequent offense within a period of five years from a first offense, by a fine of $1,000. No person shall be subject to prosecution under both this subdivision and subdivision 1 or 2 for actions arising out of the same transaction or occurrence.Upon a conviction under this subdivision, the court shall furnish to the Commissioner of the Department of Motor Vehicles, in accordance with § 46.2-383 , an abstract of the record of such conviction, which shall become a part of the person’s driving record. Notwithstanding the provisions of § 46.2-492 , no driver demerit points shall be assessed for any violation of this subdivision, except that persons convicted of a second, third, fourth, or subsequent violation within five years of a first offense shall be assessed three demerit points for each such violation.
    2. The operator of a vehicle who enters the HOT lanes by crossing through any barrier, buffer, or other area separating the HOT lanes from other lanes of travel is guilty of a violation of § 46.2-852 , unless the vehicle is a state or local law-enforcement vehicle, firefighting truck, or emergency medical services vehicle used in the performance of its official duties. No person shall be subject to prosecution both under this subdivision and under subdivision 1, 2, or 4 for actions arising out of the same transaction or occurrence.Upon a conviction under this subdivision, the court shall furnish to the Commissioner of the Department of Motor Vehicles in accordance with § 46.2-383 an abstract of the record of such conviction, which shall become a part of the convicted person’s driving record.
    3. No person shall be subject to prosecution both under this section and under § 33.2-501 , 46.2-819 , or 46.2-819 .1 for actions arising out of the same transaction or occurrence.
    4. Any action under this section shall be brought in the general district court of the county or city in which the violation occurred.

    History. 2004, c. 783, § 33.1-56.3; 2008, cc. 167, 280; 2013, cc. 85, 101; 2014, c. 805; 2015, cc. 502, 503; 2016, c. 753; 2020, cc. 964, 965.

    Cross references.

    As to one-month extension of registration period of vehicle if the vehicle registration has been withheld pursuant to this section, see § 46.2-646.2 .

    Editor’s note.

    Acts 2016, c. 753, cl. 4 provides: “That the provisions of this act shall apply to violations that occur on or after July 1, 2016.”

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “or emergency medical services” for “ambulance or rescue squad” in the first paragraph of subdivision 5.

    The 2016 amendments.

    The 2016 amendment by c. 753 rewrote the section. For applicability clause, see Editor’s note.

    The 2020 amendments.

    The 2020 amendments by cc. 964 and 965 are identical, and deleted the former last sentence in subdivision 4 e., which read, “The provisions of § 46.2-395 shall not be applicable to any civil penalty, fee, unpaid toll, fine, or cost imposed or ordered paid under this section for a violation of subdivision 1 or 2.”

    CIRCUIT COURT OPINIONS

    Constitutionality. —

    Section 33.2-503 fine scheme was not excessive under Va. Const., Art. 1, § 9, where the fines were imposed due to defendant’s three prior violations. Transurban v. D'Arco, 92 Va. Cir. 285, 2016 Va. Cir. LEXIS 33 (Fairfax County Feb. 3, 2016).

    Statute of limitations. —

    Limitations period for filing an action for violation of the Virginia high-occupancy toll (HOT) lanes statute, which required a court to impose a civil penalty for violations of the statute, was one year because an action under the statute was a prosecution resulting in a pecuniary penalty. Commonwealth v. Cooley, 90 Va. Cir. 154, 2015 Va. Cir. LEXIS 65 (Fairfax County Apr. 7, 2015).

    Summons execution. —

    Defendant was not entitled to dismissal on the ground that the operator failed to execute the summonses where the operator had followed the method prescribed in § 33.2-503 , and given that § 33.2-503 prescribed the specific manner of executing summonses, the General Assembly did not intend for the instant cases to fall within the ambit of § 8.01-271.1 .Transurban v. D'Arco, 92 Va. Cir. 285, 2016 Va. Cir. LEXIS 33 (Fairfax County Feb. 3, 2016).

    § 33.2-504. Release of personal information to or by HOT lanes operators; penalty.

    1. The HOT lanes operator may enter into an agreement with the Department of Motor Vehicles, in accordance with the provisions of subdivision B 21 of § 46.2-208 , to obtain vehicle owner information regarding the owners of vehicles that use HOT lanes and with the Department of Transportation to obtain any information that is necessary to conduct electronic toll collection and otherwise operate HOT lanes. Such agreement may include any information that may be obtained by the Department of Motor Vehicles in accordance with any agreement entered into pursuant to § 46.2-819.9 . No HOT lanes operator shall disclose or release any personal information received from the Department of Motor Vehicles or the Department of Transportation to any third party, except in the issuance of a summons and institution of court proceedings in accordance with § 33.2-503 . Information in the possession of a HOT lanes operator under this section shall be exempt from disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
    2. Information collected by a photo-enforcement system shall be limited exclusively to that information that is necessary for the collection of unpaid tolls. Notwithstanding any other provision of law, all photographs, microphotographs, electronic images, or other data collected by a photo-enforcement system shall be used exclusively for the collection of unpaid tolls and shall not be (i) open to the public; (ii) sold or used for sales, solicitation, or marketing purposes; (iii) disclosed to any other entity except as may be necessary for the collection of unpaid tolls or to a vehicle owner or operator as part of a challenge to the imposition of a toll; or (iv) used in a court in a pending action or proceeding unless the action or proceeding relates to a violation of § 33.2-503 or upon order from a court of competent jurisdiction. Information collected under this section shall be purged and not retained later than 30 days after the collection and reconciliation of any unpaid tolls, administrative fees, or civil penalties. Any entity operating a photo-enforcement system shall annually certify compliance with this section and make all records pertaining to such system available for inspection and audit by the Commissioner of Highways or the Commissioner of the Department of Motor Vehicles or their designee. Any violation of this subsection constitutes a Class 1 misdemeanor. In addition to any fines or other penalties provided for by law, any money or other thing of value obtained as a result of a violation of this section shall be forfeited to the Commonwealth.

    History. 2004, c. 783, § 33.1-56.4; 2006, c. 859; 2014, c. 805; 2016, c. 753.

    Cross references.

    As to punishment for Class 1 misdemeanors, see § 18.2-11 .

    Editor’s note.

    Acts 2016, c. 753, cl. 4 provides: “That the provisions of this act shall apply to violations that occur on or after July 1, 2016.”

    The 2016 amendments.

    The 2016 amendment by c. 753, deleted “registered” preceding “owners of vehicles” in the first sentence, and added the second sentence. For applicability clause, see Editor’s note.

    § 33.2-505. Exclusion of HOT lanes from certain other laws.

    Notwithstanding any other provision of law, the provisions of §§ 22.1-187, 33.2-501 , 33.2-613 , 46.2-819 , and 46.2-819.1 shall not apply to HOT lanes.

    History. 2004, c. 783, § 33.1-56.5; 2014, c. 805.

    Chapter 6. Ferries and Toll Facilities.

    § 33.2-600. Acquisition or establishment of ferries.

    The Board may acquire by purchase, condemnation, or gift any ferry within the Commonwealth that forms a connecting link in a state highway and may purchase all equipment and other things necessary for the establishment of new ferries to become connecting links in the primary or secondary state highway system, whenever it shall determine such action to be advisable and expedient. The Board may expend from state highway construction funds of the highway construction district where the ferries are located and are under the Board’s control at any time such sums as may be necessary to acquire or establish, maintain, and operate any such ferry.

    The Board may operate such ferry either as a free or toll ferry and may establish a toll for the use of such ferry at such rates as are deemed by the Board to be reasonable and proper without regulation by any other governmental body.

    History. Code 1950, § 33-209; 1970, c. 322, § 33.1-254; 2014, c. 805.

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Ferries, §§ 3, 5, 6, 15.

    § 33.2-601. Ferry across Corrotoman River.

    The public free ferry across the Corrotoman River, in the County of Lancaster, authorized by Chapter 156 of the Acts of Assembly of 1847, shall be kept according to such act, except as otherwise provided in this section. The Circuit Court of Lancaster may have the contract for keeping the same let to the lowest bidder for a period of five years, and the bonds thereby directed shall be to the County of Lancaster. Furthermore, the ferry shall cross from Merry Point to the upper side of the wharf and canning factory at Ottoman wharf. However, the circuit court of the county shall have the right, upon the application of the board of supervisors, to discontinue the ferry if it appears that public necessity therefor no longer exists. No such application shall be made unless and until notice is given by (i) publication once a week for two successive weeks in a newspaper published in the county or having general circulation therein and (ii) posting copies of the notice at the front door of the courthouse of the county and at both landings of the ferry. Such notice shall be posted and the first newspaper publication made at least 30 days before the day on which the application will be made to the court.

    History. Code 1950, § 33-171; 1970, c. 322, § 33.1-247; 2014, c. 805; 2015, c. 256.

    The 2015 amendments.

    The 2015 amendment by c. 256 substituted “Chapter 156 of the Acts of Assembly of 1847” for “the act of March 12, 1847” in the first sentence.

    § 33.2-602. Toll bridges; when privilege ceases.

    When an act is passed to authorize the erection of a toll bridge, if the work is not commenced within one year from the passage of such act or is not completed within two years after such commencement or if, after its completion, there is an abandonment of the toll bridge or a failure for three successive years to keep it in good order, the privileges granted by the act shall cease.

    History. Code 1950, § 33-215; 1970, c. 322, § 33.1-255; 2014, c. 805.

    CASE NOTES

    The Virginia statutes disclose a different treatment of “toll roads” and “toll bridges” over a number of years. The statutory distinction between toll roads and toll bridges is highlighted by the failure of the General Assembly to repeal statutes governing the operation of toll bridges (§§ 33.1-255 through 33.1-266) when it specifically repealed statutes governing the operation of toll roads (former § 33-136). Boulevard Bridge Corp. v. City of Richmond, 203 Va. 212 , 123 S.E.2d 636, 1962 Va. LEXIS 130 (1962) (decided under prior law).

    § 33.2-603. Toll bridges not to obstruct navigation or fish.

    Every toll bridge shall be made so as not to obstruct the passage of fish or the navigation of the watercourse over which it is erected.

    History. Code 1950, § 33-216; 1970, c. 322, § 33.1-256; 2014, c. 805.

    § 33.2-604. How right to demand tolls ascertained and rates fixed or changed.

    Tolls shall be received for passing a bridge only after it appears to the circuit court of the county where the bridge is located that the bridge is completed according to the act authorizing it. The court shall ascertain whether it is so completed by appointing three disinterested freeholders to view it. If they report in writing that it is so completed and their report is confirmed by the court, the person authorized to erect it, or his heirs or assigns, may then demand and receive tolls at the rates fixed by such act from persons or things passing over the bridge. If no rates are fixed, then he, or his heirs or assigns, may receive tolls at such rates as may be fixed by law. If the toll rates are specified in such act they may be changed by law, unless such act otherwise expressly provides.

    History. Code 1950, § 33-217; 1970, c. 322, § 33.1-257; 1995, c. 647; 2014, c. 805.

    § 33.2-605. Special police officers in connection with toll bridges.

    1. The circuit court of any county in which there is a toll bridge or its approaches, or the circuit court of any county in which lies any part of any toll bridge or bridges or their approaches belonging to the same proprietor, but which toll bridge or bridges or their approaches lie in more than one county, may, upon the application of the proprietor, appoint any employee of such proprietor, employed in the control or operation of such toll bridge or bridges and approaches, a special police officer. Such special police officer may exercise all the powers and duties imposed and conferred upon sheriffs in the Commonwealth, in criminal matters, upon any such toll bridge or bridges and their approaches. Such power shall extend throughout the Commonwealth when such special police officer is actually in pursuit of a person accused of crime or acting under authority of a warrant duly issued for the arrest of a person charged with a crime. However, no special policeman appointed under this section whose duties as such special policeman are merely incidental to such private employment shall be deemed to be an employee of the Commonwealth or county or counties within which such toll bridges and their approaches lie, within the meaning of the Virginia Workers’ Compensation Act (§ 65.2-100 et seq.).
    2. Before any such appointment is made, the court shall be satisfied that such person has been a bona fide resident of the Commonwealth for more than one year immediately preceding such appointment and is of good moral character. Before any such person shall be permitted to discharge any of the duties of such special policeman, he shall take the oath required by law and shall give a bond payable to the Commonwealth in the penalty of not less than $500, conditioned for the faithful discharge of his official duties.
    3. No salary shall be paid to any special police officer appointed under subsection A by the Commonwealth or county, or counties, in which such properties lie; nor shall he receive any fees for making any arrest, executing any warrant, summoning a witness, or carrying a person to or from jail.

    History. Code 1950, §§ 33-218, 33-219, 33-220; 1970, c. 322, §§ 33.1-258, 33.1-259, 33.1-260; 2014, c. 805.

    § 33.2-606. Permission required to erect or maintain toll bridges over navigable water.

    No toll bridge erected after March 19, 1928, shall be constructed, maintained, or operated across, in, or over any navigable waters in or of the Commonwealth, anything in the charter of any company to the contrary notwithstanding, unless a permit is first obtained from the Board. The Board may grant or withhold such permit or prescribe its terms and conditions, as it may deem for the best interest of the Commonwealth, except so far as such terms and conditions are provided for in this chapter.

    History. Code 1950, § 33-221; 1970, c. 322, § 33.1-261; 2014, c. 805.

    § 33.2-607. Approval of plans by Board; inspection; costs.

    Detailed plans, estimates, and specifications shall be submitted to the Board for approval before construction is commenced on a toll bridge or approaches under a permit granted under § 33.2-606 . No such toll bridge shall be constructed until such plans, estimates, and specifications are approved by the Board. Access to such work shall be granted to the Board, the Commissioner of Highways, and authorized representatives of either at all times during construction. The permittee shall keep accurate records of the cost of such toll bridge and approaches and real and personal property used in the operation thereof and of all replacements and repairs and shall submit a copy to the Board.

    History. Code 1950, § 33-222; 1970, c. 322, § 33.1-262; 2014, c. 805.

    § 33.2-608. Toll bridges may be purchased by Commonwealth.

    In addition to the power of eminent domain as provided by law for highways in the primary state highway system, the Commonwealth, acting through the Commissioner of Highways, may purchase any such toll bridge and the approaches thereto with the real estate and tangible personal property necessary for their proper operation, at such time as may be specified in the permit granted for such toll bridge, or at the expiration of any two-year period after such time, all at a price equal to the original cost, to be determined as provided in this section, less depreciation.

    In order to exercise the right of the Commonwealth to purchase and take over any such toll bridge and approaches and real estate and tangible personal property, the Commonwealth, through the Commissioner of Highways, shall give to the permittee, or its successor in title of record to such toll bridge and other property, not less than two months’ notice of its intention to do so and specify the date on which the conveyance will be required. Title to such toll bridge and approaches and property shall be vested in the Commonwealth free of lien at the time set out in such notice and upon the payment or offer of the purchase price determined in accordance with §§ 33.2-602 through 33.2-610 , to such permittee or successor in title of record to such toll bridge and other property, or to the trustee or trustees, or mortgagor or mortgagees in any deed of trust or mortgage on such property, or to the lien creditor or creditors, as their interest may appear of record.

    The original cost of such toll bridge and approaches and real estate and tangible personal property shall be determined by the Commissioner of Highways. The original cost shall include the actual cost and an additional amount equal to interest at the rate of six percent on the amount actually invested by such permittee, or successor in title of record, in such property, or in hand for investment therein, during the period of construction. “Actual costs” includes the cost of improvements; financing charges; the cost of traffic estimate and of engineering and legal expenses, plans, specifications, and surveys; estimates of cost and of revenue; other expenses necessary or incident to determining the feasibility or practicability of the enterprise; administrative expenses; and such other expenses as may be necessary or incident to the financing of the project and the placing of the project in operation. The Commissioner of Highways shall determine the depreciation and the reasonableness of each item of actual cost.

    History. Code 1950, § 33-224; 1956, c. 138; 1970, c. 322, § 33.1-264; 2014, c. 805.

    § 33.2-609. Conveyance of toll bridge by Commonwealth.

    In the event a toll bridge, at the time it is purchased by the Commonwealth under the provisions of §§ 33.2-602 through 33.2-610 , is not on the line of a highway then in one of the systems of state highways, the Commissioner of Highways may convey such toll bridge and approaches and other property to such county or counties in which it may be in whole or in part located, upon the payment by such county or counties of the amount paid by the Commonwealth for such toll bridge and approaches and other property, with interest on such amount at six percent per year from the time of such payment by the Commonwealth. The conveyance shall be executed in the name and on behalf of the Commonwealth by the Commissioner of Highways.

    History. Code 1950, § 33-225; 1970, c. 322, § 33.1-265; 2014, c. 805.

    § 33.2-610. Sections 33.2-606 through 33.2-609 not applicable to certain toll bridges.

    Nothing contained in §§ 33.2-606 through 33.2-609 shall be construed to apply to any bridge existing or under construction on March 20, 1928, or to bridges constructed within or adjacent to towns or cities having a population of more than 3,500.

    History. Code 1950, § 33-226; 1970, c. 322, § 33.1-266; 2014, c. 805.

    § 33.2-611. Tolls may vary to encourage travel during off-peak hours.

    1. In order to provide an incentive for motorists to travel at off-peak hours, and in accordance with federal requirements, wherever a toll is imposed and collected by the Department or such other entity as may be responsible for imposing or collecting such toll, the amount of such toll may vary according to the time of day, day of the week, traffic volume, vehicle speed, vehicle type, similar variables, or combinations thereof. The amount of such toll and the time of day when such toll changes shall be as fixed and revised by the Board or such other entity as may be responsible for fixing or revising the amount of such toll, provided, however, that any such variation shall be reasonably calculated to minimize the reduction in toll revenue generated by such toll.
      1. Beginning July 1, 2008, every agency of the Commonwealth or any political subdivision or instrumentality thereof having control of or day-to-day responsibility for the operation of any toll facility in the Commonwealth shall take all necessary actions to ensure that every newly constructed toll facility under its control is capable of fully automated electronic operation, employing technologies and procedures that permit the collection of tolls from users of the facility, to the extent possible, without impeding the traffic flow of the facility. An entity operating a toll facility that substantially upgrades its equipment or substantially renovates its facility after July 1, 2008, shall comply with the provisions of this subsection. The provisions of this section shall also apply to any nongovernmental or quasigovernmental entity operating a toll facility under a comprehensive agreement entered into, pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.), on or after January 1, 2008. Nothing in this subsection shall be construed to prohibit a toll facility from retaining means of nonautomated toll collection in some lanes of the facility. B. 1. Beginning July 1, 2008, every agency of the Commonwealth or any political subdivision or instrumentality thereof having control of or day-to-day responsibility for the operation of any toll facility in the Commonwealth shall take all necessary actions to ensure that every newly constructed toll facility under its control is capable of fully automated electronic operation, employing technologies and procedures that permit the collection of tolls from users of the facility, to the extent possible, without impeding the traffic flow of the facility. An entity operating a toll facility that substantially upgrades its equipment or substantially renovates its facility after July 1, 2008, shall comply with the provisions of this subsection. The provisions of this section shall also apply to any nongovernmental or quasigovernmental entity operating a toll facility under a comprehensive agreement entered into, pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.), on or after January 1, 2008. Nothing in this subsection shall be construed to prohibit a toll facility from retaining means of nonautomated toll collection in some lanes of the facility.
      2. For toll facilities within the territory embraced by the Northern Virginia Transportation Authority, the provisions of subdivision 1 apply to all toll facilities, regardless of whether or not they are newly constructed or substantially upgraded.

    History. 2004, c. 1003, § 33.1-223.2:12; 2007, c. 896; 2014, c. 805.

    Editor’s note.

    Former § 33.1-223.2:12, from which this section was derived, was enacted as § 33.1-223.2:9 by Acts 2004, c. 1003, and subsequently renumbered at the direction of the Virginia Code Commission.

    § 33.2-612. Unlawful for Department of Transportation to permit free passage over certain toll bridges and ferries; exceptions.

    Except for those persons exempted from tolls under § 33.2-613 , it shall be unlawful for the Department or any employee thereof to give or permit free passage over any toll bridge, tunnel, or ferry that has been secured through the issuance of revenue bonds and which bonds are payable from the revenues of such project. Every vehicle shall pay the same toll as others similarly situated. Except as provided in § 33.2-613 , the provisions of this section shall apply to vehicles and employees of the state government, local governments, or other political subdivisions and to vehicles and persons of all other categories and descriptions, public, private, eleemosynary, or otherwise.

    History. Code 1950, § 33-173.1; 1950, p. 458; 1954, c. 576; 1968, c. 170; 1970, c. 322, § 33.1-251; 1973, c. 215; 1981, c. 417; 1983, c. 617; 2014, c. 805; 2015, c. 256.

    Cross references.

    For provisions of the State Revenue Bond Act relating specifically to tolls, see §§ 33.2-1718 through 33.2-1721 .

    As to exemption of certain students from payment of tolls, see § 22.1-187.

    The 2015 amendments.

    The 2015 amendment by c. 256 substituted “of this section” for “hereof” in the last sentence.

    § 33.2-613. Free use of toll facilities by certain state officers and employees; penalties.

    1. Upon presentation of a toll pass issued pursuant to regulations promulgated by the Board, the following persons may use all toll bridges, toll ferries, toll tunnels, and toll roads in the Commonwealth without the payment of toll while in the performance of their official duties:
      1. The Commissioner of Highways;
      2. Members of the Commonwealth Transportation Board;
      3. Employees of the Department of Transportation;
      4. The Superintendent of the Department of State Police;
      5. Officers and employees of the Department of State Police;
      6. Members of the Board of Directors of the Virginia Alcoholic Beverage Control Authority;
      7. Employees of the regulatory and hearings divisions of the Virginia Alcoholic Beverage Control Authority and special agents of the Virginia Alcoholic Beverage Control Authority;
      8. The Commissioner of the Department of Motor Vehicles;
      9. Employees of the Department of Motor Vehicles;
      10. Local police officers;
      11. Sheriffs and their deputies;
      12. Regional jail officials;
      13. Animal wardens;
      14. The Director and officers of the Department of Wildlife Resources;
      15. Persons operating firefighting equipment and emergency medical services vehicles as defined in § 32.1-111.1 ;
      16. Operators of school buses being used to transport pupils to or from schools;
      17. Operators of (i) commuter buses having a capacity of 20 or more passengers, including the driver, and used to regularly transport workers to and from their places of employment and (ii) public transit buses;
      18. Employees of the Department of Rail and Public Transportation;
      19. Employees of any transportation facility created pursuant to the Virginia Highway Corporation Act of 1988; and
      20. Law-enforcement officers of the Virginia Marine Resources Commission.
    2. Notwithstanding the provision of subsection A requiring presentation of a toll pass for toll-free use of such facilities, in cases of emergency and circumstances of concern for public safety on the highways of the Commonwealth, the Department of Transportation shall, in order to alleviate an actual or potential threat or risk to the public’s safety, facilitate the flow of traffic on or within the vicinity of the toll facility by permitting the temporary suspension of toll collection operations on its facilities.
      1. The assessment of the threat to public safety shall be performed and the decision temporarily to suspend toll collection operations shall be made by the Commissioner of Highways or his designee.
      2. Major incidents that may require the temporary suspension of toll collection operations shall include (i) natural disasters, such as hurricanes, tornadoes, fires, and floods; (ii) accidental releases of hazardous materials, such as chemical spills; (iii) major traffic accidents, such as multivehicle collisions; and (iv) other incidents deemed to present a risk to public safety. Any mandatory evacuation during a state of emergency as defined in § 44-146.16 shall require the temporary suspension of toll collection operations in affected evacuation zones on routes designated as mass evacuation routes. The Commissioner of Highways shall reinstate toll collection when the mandatory evacuation period ends.
      3. In any judicial proceeding in which a person is found to be criminally responsible or civilly liable for any incident resulting in the suspension of toll collections as provided in this subsection, the court may assess against the person an amount equal to lost toll revenue as a part of the costs of the proceeding and order that such amount, not to exceed $2,000 for any individual incident, be paid to the Department of Transportation for deposit into the toll road fund.
    3. Any tollgate keeper who refuses to permit the persons listed in subsection A to use any toll bridge, toll ferry, toll tunnel, or toll road upon presentation of such a toll pass is guilty of a misdemeanor punishable by a fine of not more than $50 and not less than $2.50. Any person other than those listed in subsection A who exhibits any such toll pass for the purpose of using any toll bridge, toll ferry, toll tunnel, or toll road is guilty of a Class 1 misdemeanor.
    4. Any vehicle operated by the holder of a valid driver’s license or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2, or the comparable law of another jurisdiction, authorizing the operation of a motor vehicle upon the highways shall be allowed free use of all toll bridges, toll roads, and other toll facilities in the Commonwealth if:
      1. The vehicle is specially equipped to permit its operation by a handicapped person;
      2. The driver of the vehicle has been certified, either by a physician licensed by the Commonwealth or any other state or by the Adjudication Office of the U.S. Department of Veterans Affairs, as being severely physically disabled and having permanent upper limb mobility or dexterity impairments that substantially impair his ability to deposit coins in toll baskets;
      3. The driver has applied for and received from the Department of Transportation a vehicle window sticker identifying him as eligible for such free passage; and
      4. Such identifying window sticker is properly displayed on the vehicle.A copy of this subsection shall be posted at all toll bridges, toll roads, and other toll facilities in the Commonwealth. The Department of Transportation shall provide envelopes for payments of tolls by those persons exempted from tolls pursuant to this subsection and shall accept any payments made by such persons.
    5. Nothing contained in this section or in § 33.2-612 or 33.2-1718 shall operate to affect the provisions of § 22.1-187.
    6. Notwithstanding the provisions of subsections A, B, and C, only the following persons may use the Chesapeake Bay Bridge-Tunnel, facilities of the Richmond Metropolitan Transportation Authority, or facilities of an operator authorized to operate a toll facility pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) without the payment of toll when necessary and incidental to the conduct of official business:
      1. The Commissioner of Highways;
      2. Members of the Commonwealth Transportation Board;
      3. Employees of the Department of Transportation;
      4. The Superintendent of the Department of State Police;
      5. Officers and employees of the Department of State Police;
      6. The Commissioner of the Department of Motor Vehicles;
      7. Employees of the Department of Motor Vehicles; and
      8. Sheriffs and deputy sheriffs.However, in the event of a mandatory evacuation and suspension of tolls pursuant to subdivision B 2, the Commissioner of Highways or his designee shall order the temporary suspension of toll collection operations on facilities of all operators authorized to operate a toll facility pursuant to the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) that has been designated as a mass evacuation route in affected evacuation zones, to the extent such order is necessary to facilitate evacuation and is consistent with the terms of the applicable comprehensive agreement between the operator and the Department. The Commissioner of Highways shall authorize the reinstatement of toll collections suspended pursuant to this subsection when the mandatory evacuation period ends or upon the reinstatement of toll collections on other tolled facilities in the same affected area, whichever occurs first.
    7. Any vehicle operated by a quadriplegic driver shall be allowed free use of all toll facilities in Virginia controlled by the Richmond Metropolitan Transportation Authority, pursuant to the requirements of subdivisions D 1 through 4.
    8. Vehicles transporting two or more persons, including the driver, may be permitted toll-free use of the Dulles Toll Road during rush hours by the Board; however, notwithstanding the provisions of subdivision B 1 of § 56-543, such vehicles shall not be permitted toll-free use of a roadway as defined pursuant to the Virginia Highway Corporation Act of 1988 (§ 56-535 et seq.).

    History. Code 1950, § 33-11; 1952, c. 572; 1970, cc. 322, 415, § 33.1-252; 1973, c. 215; 1981, c. 417; 1983, c. 617; 1984, cc. 508, 543, 778; 1990, cc. 505, 509, 613; 1992, c. 266; 1993, c. 866; 1994, cc. 65, 771, 874, 927; 1995, c. 572; 1996, c. 138; 1998, c. 565; 2004, c. 655; 2005, c. 298; 2006, c. 859; 2014, cc. 469, 805; 2015, cc. 38, 256, 502, 503, 730; 2019, cc. 269, 547; 2020, cc. 958, 1227, 1246.

    Cross references.

    As to punishment for Class 1 misdemeanors, see § 18.2-11 .

    Editor’s note.

    Acts 2014, c. 469 amended former § 33.1-252, from which this section is derived. Pursuant to § 30-152, the 2014 amendment by c. 469 has been given effect in this section by substituting “Richmond Metropolitan Transportation Authority” for “Richmond Metropolitan Authority” in subsections F and G.

    Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: “That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019.”

    Acts 2020, cc. 1227 and 1246, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2021.”

    Acts 2020, cc. 1227 and 1246, cl. 4 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

    The 2015 amendments.

    The 2015 amendment by c. 256 transferred the former first sentence in subsection A to a new subsection H.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “emergency medical services vehicles” for “ambulances” in subdivision A 15.

    The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and in subdivision A 6, inserted “Board of Directors of the Virginia” preceding “Alcoholic,” substituted “Authority” for “Board”; and substituted “Virginia Alcoholic Beverage Control Authority” for “Department of Alcoholic Beverage Control” in subdivision A 7 twice.

    The 2019 amendments.

    The 2019 amendment by c. 269, in subdivision A 15, substituted “as defined in § 32.1-111.1 ” for “owned by a political subdivision of the Commonwealth or a nonprofit association or corporation”; and in subsection H, substituted “such vehicles” for “said vehicles.”

    The 2019 amendment by c. 547, in subdivision B 2, added the second and third sentences; and in subsection F, added the second paragraph.

    The 2020 amendments.

    The 2020 amendment by c. 958 substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in subdivision A 14.

    The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and rewrote the introductory language of subsection D, which formerly read: “Any vehicle operated by the holder of a valid driver’s license issued by the Commonwealth or any other state shall be allowed free use of all toll bridges, toll roads, and other toll facilities in the Commonwealth if.”

    § 33.2-614. Disclosure of certain information relating to use of toll facilities; injunctive relief; attorney fees.

    1. Neither the Department nor any other operator of any toll bridge, toll road, or other toll facility nor any employee or contractor with the Department or other toll facility operator shall disclose any information derived from an automated electronic toll collection system about the time, date, or frequency of use or nonuse of any such facility by any individually identified motor vehicle except when ordered to do so by a court of competent jurisdiction. The provisions of this section shall not apply to information supplied (i) to any person who is a participant in the electronic toll collection system, when such information is limited to vehicles owned or leased by such person; (ii) to the issuer of any credit card or debit card or other third party vendor when such information is necessary for collecting the toll and ensuring the accuracy of such billing by the operator; (iii) for statistical or research purposes, when such information contains no data attributable to individual vehicles or individual participants; or (iv) to federal, state, and local law enforcement, when such information is required in the course of an investigation where time is of the essence in preserving and protecting human life or public safety.
    2. Any aggrieved person may institute a proceeding for injunction or mandamus against any person, governmental agency, or other entity that has engaged, is engaged, or is about to engage in any acts or practices in violation of the provisions of this section. The proceeding shall be brought in the circuit court of any county or city wherein the person, governmental agency, or other entity made defendant resides or has a place of business. In the case of any successful proceeding by an aggrieved party, the person, governmental agency, or other entity enjoined or made subject to a writ of mandamus by the court shall be liable for the costs of the action together with reasonable attorney fees as determined by the court.

    History. 2004, c. 665, § 33.1-252.2; 2014, c. 805.

    § 33.2-615. Electronic notification of unpaid tolls.

    For the purpose of electronic notification of unpaid tolls, the Department shall request email addresses and personal cell phone numbers from all holders of an account for an electronic toll collection device that is the property of the Commonwealth.

    The Department shall electronically notify a holder of an account for an electronic toll collection device that is the property of the Commonwealth of each unpaid toll, within 108 hours of such unpaid toll, (i) when such device is detected by the toll operator or (ii) when such device is not detected by the toll operator but whose vehicle is associated with such account. The Department shall provide a second electronic notification on the eighth day after the unpaid toll. Such notification requirements shall only apply to accounts where the account holder has provided the Department with an email address or cell phone number. Such notification shall be for informational purposes only and the notice, or lack thereof, shall not alter or amend the requirement that an owner or operator pay all required tolls, fines, penalties, and fees.

    All toll operators in the Commonwealth shall notify the Department of an unpaid toll on a facility it operates related to an account for an electronic toll collection device that is the property of the Commonwealth within 96 hours of such violation.

    History. 2016, c. 753.

    Editor’s note.

    Acts 2016, c. 753, cl. 2 provides: “That the provisions of § 33.2-615 of the Code of Virginia, as created by this act, shall become effective on January 1, 2017.”

    Acts 2016, c. 753, cl. 4 provides: “That the provisions of this act shall apply to violations that occur on or after July 1, 2016.”

    § 33.2-616. Electronic toll collection device; DRIVE SMART Virginia Education Fund contribution.

    1. The Department shall establish a method by which holders of an account for an electronic toll collection device that is the property of the Commonwealth may opt to make a voluntary contribution to the DRIVE SMART Virginia Education Fund through electronic means.
    2. There is hereby created in the state treasury a special nonreverting fund to be known as the DRIVE SMART Virginia Education Fund, referred to in this section as “the Fund.” DRIVE SMART Virginia is a nonprofit organization exempt from taxation under § 501(c)(3) of the Internal Revenue Code. The Fund shall be established on the books of the Comptroller. All funds collected pursuant to subsection A shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund, less costs of administration incurred and withheld by the Department, shall be used solely for the purposes of supporting educational projects in the Commonwealth through DRIVE SMART Virginia’s existing network of education, corporate, and community partners in an effort to improve behavior, raise awareness, and educate members of the general public in workplaces, schools, municipalities, and other locations on issues related to safe driving. Such issues shall include work zone safety, sharing the road with bicyclists and pedestrians, teen driver safety, occupant protection, designated driving, distracted road users, and other issues as needed. DRIVE SMART Virginia shall submit an annual report to the Secretary regarding its use of disbursements from the Fund. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Secretary.

    History. 2017, c. 533.

    Chapter 7. Local Authority Over Highways.

    Article 1. General Provisions.

    § 33.2-700. Transfer of highways, etc., from secondary state highway system to local authorities.

    Whenever any town has a population of more than 3,500 inhabitants, all the streets, highways, causeways, bridges, landings, and wharves in such town that were incorporated within the secondary state highway system shall be eliminated from such system and the control and jurisdiction over them shall be vested in the local authorities. This section shall in no way affect the rights of such towns to receive the benefits provided elsewhere in this title.

    History. Code 1950, § 33-137; 1970, c. 322, § 33.1-224; 2014, c. 805.

    Law Review.

    For note, “A Coordinated Approach to Growth Control in Northern Virginia,” see 52 Wm. & Mary L. Rev. 1679 (2011).

    OPINIONS OF THE ATTORNEY GENERAL

    Highway maintenance. —

    Former § 33.1-42 [now § 33.2-320 ], by its express terms, allows a town, with the consent of the Commissioner of Highways, to maintain those roads in the town that are incorporated in the State Highway System, but not those that are part of the secondary system of state highways. The statute further allows the town to be reimbursed up to the amount the Commissioner is authorized to expend for such street maintenance. See opinion of Attorney General to Jason J. Ham, Esquire, Town Attorney for the Town of New Market, 14-013, 2014 Va. AG LEXIS 23 (7/10/14).

    § 33.2-701. Levies.

    For the purpose of this section, “district” means a magisterial, sanitary, or other special district created by the governing body of a county for the levy of road taxes.

    The governing bodies of the counties shall not make any levy of county or district road taxes or contract any further indebtedness for the construction, maintenance, or improvement of highways; however, the governing bodies of the counties shall continue to make county or district levies, as the case may be, upon all real and personal property subject to local taxation, in such county or magisterial district, and not embraced within the corporate limits of any town that maintains its own streets and is exempt from county and district road taxes unless the citizens of such towns voted on the question of issuing county or district road bonds, sufficient only to provide for the payment of any bonded or other indebtedness and for the interest contracted thereon that may be outstanding as an obligation of any county or district contracted for road purposes or for the sinking fund for the retirement of any bonded indebtedness established for county or district road purposes.

    History. Code 1950, § 33-138; 1964, c. 376; 1968, c. 368; 1970, c. 322, § 33.1-225; 2007, c. 813; 2014, c. 805.

    Law Review.

    For note, “Virginia Subdivision Law: An Unreasonable Burden on the Unwary,” see 34 Wash. & Lee L. Rev. 1223 (1977).

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    All of the provisions of this section are to be read together, and when this is done there is no conflict. A special local levy must be made when necessary but not before. Godwin v. Board of Supvrs., 161 Va. 494 , 171 S.E. 521 , 1933 Va. LEXIS 341 (1933).

    The legislature did not relieve a magisterial district from its primary obligation, and such district must meet all charges theretofore incurred for district road purposes which it may hereafter have to meet. That is to say, when these unexpended road balances have been exhausted the board will make such special levies in that district as may be necessary to discharge its obligation, but they will not make them until it is necessary. Godwin v. Board of Supvrs., 161 Va. 494 , 171 S.E. 521 , 1933 Va. LEXIS 341 (1933).

    What funds part of road balance. —

    Money received from a city and county on account of the upkeep of bridges, which had been transferred to the general county fund, prior to the date at which the Byrd Act, Acts 1932, c. 415, took effect, were not as of that date a part of any road balance. Godwin v. Board of Supvrs., 161 Va. 494 , 171 S.E. 521 , 1933 Va. LEXIS 341 (1933).

    § 33.2-702. Gifts received by counties for construction, maintenance, etc., of secondary highways.

    Notwithstanding the provisions of § 33.2-701 or any other provisions of law to the contrary, the governing body of any county may accept gifts of money, property, or services to be utilized for the construction, maintenance, and improvement of the secondary state highway system in such county, in conformity with specifications of and in cooperation with the Department, provided that such gift resources may be matched in value by appropriations from the county’s general funds. The allocation of such donated and appropriated resources to the secondary highways shall be made by the governing body of the county, after consultation with the Department, to be used by the Department in accordance with the wishes of the governing body of such county.

    History. 1976, c. 63, § 33.1-225.2; 2014, c. 805.

    § 33.2-703. Funds for highways not in secondary state highway system.

    Notwithstanding the provisions of § 33.2-701 or 33.2-706 , the governing body of any county under the urban county executive form of government may expend funds on minor improvements and maintenance of highways not within the secondary state highway system, provided such highways are open for public use. A highway shall be determined to be open for public use by applying the same standards set forth in § 33.2-105 or by final order of a court of competent jurisdiction on or before January 1, 1978, except that in order to be eligible for funds under this section such highways need not be 30 feet wide but shall not be less than 15 feet wide. The maximum amount of mileage to be maintained under this section shall not exceed 30 miles.

    History. 1978, c. 43, § 33.1-225.3; 2014, c. 805.

    § 33.2-704. Agreements between localities for construction and operation of toll facilities.

    The governing bodies of adjacent localities may enter into agreements providing for the construction and operation of highways, bridges, and ferries within their boundaries and for the imposition and collection of tolls for the use of such facilities. Such tolls may be in whatever amount, subject to whatever conditions, and expended for whatever purposes provided for in such agreements. Such agreements shall provide for the design, land acquisition, or construction of primary or secondary highway projects that have been included in the six-year plan pursuant to § 33.2-331 , or in the case of a primary highway, an approved project included in the six-year improvement program of the Board. Such agreements shall specify relevant procedures and responsibilities concerning the design, right-of-way acquisition, construction, and contract administration of such projects. Any facility constructed pursuant to the authority granted in this section shall be constructed in accordance with the applicable standards of the Department for such facility. Prior to executing any agreement pursuant to this section, a joint public hearing shall be held concerning the benefits of and need for as well as the location and design of the facility.

    History. 2006, c. 587, § 33.1-228.1; 2014, c. 805.

    Article 2. Establishment, Alteration, and Discontinuance of Highways.

    § 33.2-705. Continuance of powers of county authorities; alternative procedure.

    The local authorities shall continue to have the powers vested in them on June 20, 1932, for the establishment of new highways in their respective counties, which shall, upon such establishment, become parts of the secondary state highway system within such counties. They shall likewise have the power to alter or change the location of any highway now in the secondary state highway system within such counties or that may hereafter become a part of the secondary state highway system within such counties. The Commissioner of Highways shall be made a party to any proceeding before the local authorities for the establishment of any such highway or for the alteration or change of the location of any such highway. When any such board or commission appointed by the governing body of a county to view a proposed highway or to alter or change the location of an existing highway shall award damages for the right-of-way for the same, in either case to be paid in money, it may be paid by the governing body of the county out of the general county levy funds. No expenditure by the Commonwealth shall be required upon any new highway so established or any old road the location of which is altered or changed by the local authorities, except as may be approved by the Commissioner of Highways. If the property sought to be taken is for the easement or right-of-way, the plat shall reasonably indicate thereon any appurtenant right-of-way or easement for ingress and egress to and from the principal easement or right-of-way being taken.

    As an alternative to the method of establishing or relocating a highway provided in the preceding paragraph, the Commissioner of Highways, by and with the approval of the Board and the governing body of a county, shall have power and authority to make such changes in routes in, and additions to, the secondary state highway system as the public safety or convenience may require.

    The service of any process or notice in any such proceedings upon the district administrator of the Department having the supervision of maintenance and construction of highways in any such county shall be termed sufficient service on the Commissioner of Highways.

    History. Code 1950, § 33-141; 1950, p. 726; 1970, c. 322, § 33.1-229; 1980, c. 441; 1984, c. 198; 2013, cc. 585, 646; 2014, c. 805.

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Private Ways, § 2.

    § 33.2-706. How highways and bridges in counties established or altered; examination and report; width and grade of highways; employing engineer.

    Whenever the governing body of any county is of the opinion that it is necessary to establish or alter the location of a public highway or bridge, or any other person applies to the local governing body therefor, it may appoint five viewers, who shall be resident freeholders of the county, any three of whom may act, to examine such highways or routes and report upon the expediency of establishing or altering the location of such public highway or bridge. In lieu of such viewers, the local governing body may direct the county road engineer or county road manager to examine such highway or route and make such report, and such board may establish or alter such highway or bridge upon such location and of such width and grade as it may prescribe. The right-of-way for any public highway shall not be less than 30 feet wide, except that in any case in which the cost of constructing and maintaining any such highway is to be borne by any individual the right-of-way for such highway may be less than 30 but not less than 15 feet in width. If none of the viewers is an engineer, appointed for the purpose of making survey and map, the local governing body may employ an engineer, if necessary, to assist the viewers.

    History. Code 1950, § 33-142; 1964, c. 565; 1970, c. 322, § 33.1-230; 2014, c. 805.

    Cross references.

    As to right of condemnation by localities, see § 15.2-1901 et seq. As to right of condemnation by state agencies, see § 25.1-101 .

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    There are two methods by which the boards of supervisors may acquire lands for public highways. They may at their election either proceed in the circuit court under the general statute providing the ordinary method for the exercise of the right of eminent domain, former § 25-46.1 et seq. (see now § 25.1-100 et seq.), or under the general road law, §§ 33.1-230 through 33.1-246, vesting jurisdiction in the boards for establishment of highways, subject to appeal to the circuit court and ultimately to the Supreme Court of Appeals. Board of Supvrs. v. Proffit, 129 Va. 9 , 105 S.E. 666 , 1921 Va. LEXIS 72 (1921); Ewing v. Board of Supvrs., 131 Va. 471 , 109 S.E. 474 , 1921 Va. LEXIS 38 (1921).

    County must follow section to accept dedication. —

    Express acceptance of a dedication could only have been accomplished by the county following the requirements of this section. City of Norfolk v. Meredith, 204 Va. 485 , 132 S.E.2d 431, 1963 Va. LEXIS 176 (1963).

    A road is not a public road unless the board of supervisors expressly or impliedly accept the offer of dedication made in a deed. And the board does not expressly accept a dedication where it does not follow the statutory requirements relating to the establishment of a public road, for example, the requirement of this section that the board appoint five freeholders or the county road engineer to examine the proposed public road and report to the board upon the expediency of establishing it as a public road. Body v. Skeen, 208 Va. 749 , 160 S.E.2d 751, 1968 Va. LEXIS 177 (1968).

    Condemnation for private road not authorized. —

    This article does not give a board of supervisors the authority to condemn land for the purpose of establishing a private road. Foster v. Board of Supvrs., 205 Va. 686 , 139 S.E.2d 65, 1964 Va. LEXIS 236 (1964).

    Test in distinguishing public from private road. —

    Whether a road sought to be established is a public highway or one merely for the benefit of private individuals is not tested by the fact that such individuals receive a greater benefit than the public generally. The test is not simply how many actually use the road, but how many have a free and unrestricted right in common to use it. If it is free and common to all the citizens, it is a public road. Foster v. Board of Supvrs., 205 Va. 686 , 139 S.E.2d 65, 1964 Va. LEXIS 236 (1964).

    Width of road as independently fixed by board held not erroneous. —

    Proceedings by a board of supervisors under the general road law were not erroneous because the viewers appointed under the provisions of this section were directed to report upon the question as to how wide the road should be, and did so report, where it appeared that the width of the road, as finally fixed, represented the independent judgment and action of the board of supervisors. Ewing v. Board of Supvrs., 131 Va. 471 , 109 S.E. 474 , 1921 Va. LEXIS 38 (1921).

    Maintenance by public authorities of old county road as having a width of 30 feet cannot be enlarged into an acceptance of a dedication of an extension beyond 30 feet in violation of this section. The circumstances tended to establish that no part of the right-of-way in excess of a width of 30 feet was accepted by the public, and that the public authorities long ago relinquished and abandoned any claim to the area. May v. Whitlow, 201 Va. 533 , 111 S.E.2d 804, 1960 Va. LEXIS 126 (1960).

    This section has never been construed as warranting the establishment of a way of inferior dignity to a “road.” There is an implied limitation that the character of the way as a “road” shall be maintained. Hence under authority of this section a bridleway “for horseback travel” cannot be established. Terry v. McClung, 104 Va. 599 , 52 S.E. 355 , 1905 Va. LEXIS 138 (1905).

    § 33.2-707. Duty of viewers.

    The viewers or the county road engineer or county road manager shall, as early as practicable after receiving the order of the local governing body, proceed to make the view and may examine routes and locations other than that proposed and if of the opinion that there is a necessity to establish or alter the location of the public highway or bridge shall locate the same and make a report to the local governing body that includes a map or diagram of the location made and that states:

    1. Their reasons for preferring the location made;
    2. The probable cost of establishing or altering the location of such highway or bridge;
    3. The convenience and inconvenience that will result to individuals as well as to the public;
    4. Whether the highway or bridge will be one of such mere private convenience as to make it proper that it should be opened, established, or altered and kept in order by the person for whose convenience it is desired;
    5. Whether any yard, garden, or orchard will have to be taken;
    6. The names of the landowners on such route;
    7. Which of such landowners require compensation;
    8. What will be a just compensation to the landowners requiring compensation for the land so taken and for the damages to the residue of the tract, if any, beyond the peculiar benefits to be derived in respect to such residue, from the highway or bridge to be established; and
    9. All other facts and circumstances in their opinion useful in enabling the local governing body to determine the expediency of establishing or altering the highway or bridge.They shall file such report with the clerk of the local governing body.

    History. Code 1950, § 33-144; 1964, c. 565; 1970, c. 322, § 33.1-231; 2014, c. 805.

    § 33.2-708. Pay to viewers, commissioners, and engineers.

    A statement in writing showing the number of days each viewer or commissioner and engineer, appointed or employed under the provisions of this article, was employed shall be sworn to and presented to the governing body, and the governing body may allow a reasonable compensation not exceeding $50 per day to each viewer or commissioner and not exceeding $7.50 per day and necessary traveling expenses for the engineer, provided that in any county adjoining a county having a population in excess of 1,000 per square mile and in the County of Henrico, the governing body may pay the viewers, commissioners, and engineers in addition to expenses not exceeding $25 a day for each day they were respectively employed hereunder.

    History. Code 1950, § 33-155; 1950, p. 157; 1966, c. 438; 1970, c. 322, § 33.1-242; 1975, c. 445; 1978, c. 305; 2014, c. 805.

    § 33.2-709. Consent of landowners.

    In the event that some of the landowners do not require compensation and will execute their written consent giving the right-of-way in question, the viewers or the county road engineer or county road manager shall obtain such consent and return it with the report to the local governing body, and such written consent shall operate and have the force and effect of a deed from the landowners of the county for the right-of-way so long as it is used by the public, in case the highway is established, and it shall be recorded in the deed books of the county.

    Should any of the landowners require compensation and not unite in such deed, the subsequent proceedings shall be as prescribed in this article.

    History. Code 1950, § 33-145; 1970, c. 322, § 33.1-232; 2014, c. 805.

    § 33.2-710. Proceedings on report; notice to owners.

    At the next meeting of the local governing body after receipt of such report, as provided in § 33.2-707 , unless the opinion of the local governing body is against establishing or altering the highway or bridge, the local governing body shall require its clerk to give written notice to the owner of the land on which it is proposed to establish or alter such highway or bridge at least five days before the hearing to be held under § 33.2-712 informing the owner of the time and place of the hearing at which he may appear and present his views. Notice sent by registered or certified mail to the last known address of such owner as shown on the current real estate tax assessment books shall be deemed adequate compliance with this requirement. If the hearing is continued, notice shall be mailed again. If the current real estate tax assessment books do not contain the name of the owner of the affected land, notice of the hearing shall be published once each week for four successive weeks in a newspaper having general circulation in the county.

    History. Code 1950, § 33-146; 1964, c. 565; 1970, c. 322, § 33.1-233; 1977, c. 470; 2014, c. 805.

    CASE NOTES

    Appearance and waiver. —

    Where all parties interested in the establishment of a road are either notified or appear and waive notice, no objection for want of notice can be made. Tench v. Abshire, 90 Va. 768 , 19 S.E. 779 , 1894 Va. LEXIS 63 (1894) (decided under prior law).

    § 33.2-711. Guardian ad litem for persons under disability.

    If any such owner or proprietor is a person under a disability as defined in § 8.01-2 , the circuit court of the county shall, at the time the clerk shall issue such process, or as soon thereafter as practicable, upon the court’s or judge’s own motion, or upon the suggestion of any party in interest, appoint for such person a guardian ad litem, who shall faithfully represent the interest of the person under a disability and whose fees shall be fixed by the court or judge making the appointment.

    History. Code 1950, § 33-147; 1970, c. 322, § 33.1-234; 2005, c. 716; 2014, c. 805.

    § 33.2-712. Defense allowed; what board may do.

    Upon the return of the process duly executed, defense may be made to the proceedings by any party and the local governing body may hear testimony touching the expediency or propriety of establishing or altering the highway or bridge. Upon such hearing, the local governing body shall fix just compensation to the proprietors and tenants for the land proposed to be taken and the damage accruing therefrom, unless the local governing body is of the opinion that the highway or bridge should not be established or altered in which case it shall so order.

    History. Code 1950, § 33-148; 1964, c. 565; 1970, c. 322, § 33.1-235; 2014, c. 805.

    § 33.2-713. Appointment of commissioners to assess damages.

    If a tenant or proprietor desires or if the local governing body sees cause, the local governing body shall appoint five disinterested resident freeholders of the county as commissioners, any three of whom may act to ascertain just compensation for the land to be taken for such highway or bridge and damages, if any, to the residue, beyond the benefits to be derived by such residue, from such highway or bridge.

    History. Code 1950, § 33-149; 1964, c. 565; 1970, c. 322, § 33.1-236; 2014, c. 805.

    § 33.2-714. Enhancement in value of residue.

    The enhancement, if any, in value of the residue by reason of the establishment or alteration of such highway or bridge shall be offset against the damage to the residue, but there shall be no recovery over against such landowner for any excess nor shall enhancement be offset against the value of land taken.

    History. Code 1950, § 33-150; 1964, c. 565; 1970, c. 322, § 33.1-237; 2014, c. 805.

    Cross references.

    As to when enhancement is to be offset against damage in condemning for state highway, see § 33.2-1028 .

    § 33.2-715. Action of commissioners; report.

    The commissioners shall meet on the lands of the proprietors and tenants that are named in the order of the local governing body at a specified place and day, of which notice shall be given by the sheriff to such proprietors and tenants or their agents. Notice need not be given to any person present at the time the order is made. Any one or more of the commissioners attending on the land may adjourn, from time to time, until their business is finished. The commissioners, in the discharge of their duties, shall comply in all respects with the provisions of Chapter 2 (§ 25.1-200 et seq.) of Title 25.1 so far as applicable. They shall promptly make their report as required by § 25.1-232 to the local governing body and, unless good cause is shown against the report, it shall be confirmed. If, however, good cause is shown against the report or the commissioners report their disagreement or fail to report within a reasonable time, the local governing body may appoint other commissioners to ascertain the compensation and damages. When any report is confirmed, the local governing body shall establish or alter the highway or bridge with or without gates, as it may seem proper, and provide for the payment of the compensation and damages allowed.

    History. Code 1950, § 33-151; 1964, c. 565; 1970, c. 322, § 33.1-238; 1991, c. 520; 2003, c. 940; 2014, c. 805.

    CASE NOTES

    Necessity of complying with eminent domain statute. —

    In proceedings by a board of supervisors to establish a county road under the general road law, as found in §§ 33.1-230 through 33.1-246, the board of supervisors were not bound under the law to file a map or plat showing cuts, fills, trestles, and bridges, etc., where the map or diagram contemplated by this section was returned with the report of the viewers. And this notwithstanding the provision of this section, that “the commissioners, in the discharge of their duties, shall comply in all respects with the provisions of the chapter concerning the exercise of the power of eminent domain, so far as applicable,” and of former § 25-232 (see now § 15.2-1901.1 ), providing that proceedings for the condemnation of a right of way for a public road shall be in accordance with the provisions of the eminent domain chapter. Ewing v. Board of Supvrs., 131 Va. 471 , 109 S.E. 474 , 1921 Va. LEXIS 38 (1921) (decided under prior law).

    § 33.2-716. Appeal to circuit court.

    If an applicant, proprietor, or tenant is not satisfied with the decision of the local governing body with respect to the amount of compensation or damages allowed, he may appeal, but only on the question of compensation and damages, to the circuit court of the county, provided such appeal is filed within 60 days. The court shall hear the matter de novo as to the amount of compensation and damages with the further right of appeal as provided by general law. Upon the hearing of the appeal, the court shall ascertain the amount of compensation and damages, if any, to which such proprietor is entitled, and shall certify the same to the local governing body, which shall proceed to carry out the judgment of the court, provided that the local governing body shall be summoned to appear at the hearing of the appeal.

    History. Code 1950, § 33-152; 1970, c. 322, § 33.1-239; 2014, c. 805.

    CASE NOTES

    Summons of board on appeal. —

    The circuit court has no jurisdiction to proceed with the trial of an appeal, until the board is duly summoned, or appears without summons, and waives it, or by implication waives it by contesting the case on its merits, or its attorney appears and assumes to waive service of notice, and the court presumes, in the absence of proof to the contrary, that the attorney was specially authorized to do so. Marchant & Taylor v. Mathews County, 139 Va. 723 , 124 S.E. 420 , 1924 Va. LEXIS 146 (1924) (decided under prior law).

    When Supreme Court will not interfere. —

    Where, in proceedings by a board of supervisors to establish a county road through the lands of appellants, the evidence was conflicting as to what amounts should have been allowed by the lower court for compensation and damages to the landowners, and several boards of view had fixed it at various amounts, none of them in excess of $500, and the lower court, upon a hearing de novo, saw and heard the witnesses, and fixed the amount at the latter sum, the Supreme Court refused to interfere. Ewing v. Board of Supvrs., 131 Va. 471 , 109 S.E. 474 , 1921 Va. LEXIS 38 (1921) (decided under prior law).

    § 33.2-717. Who shall pay costs, compensation, and damages.

    When the highway or bridge is established or altered, the county shall be chargeable with the compensation and damages to the proprietor or tenant and all costs incurred in the proceedings, provided that when the record shows that the sum allowed by the circuit court on appeal, as compensation and damages to any proprietor or tenant is not more than the amount allowed by the local governing body from whose decision the appeal was taken, such proprietor or tenant shall be adjudged to pay the costs occasioned by such appeal. When the local governing body decides against the application to establish or alter a highway or bridge, the applicant shall pay the costs incurred in the case, except the compensation of the viewers.

    But when it shall appear to the local governing body that the opening and establishing or altering of such highway will be for mere private convenience, then the local governing body may order the same upon condition that such applicant pay, in whole or in part, the compensation and damages to the proprietor or tenant and the costs of the proceedings and keep the highway in order. In any such case the highway shall not be opened and established or altered until such compensation and damages and costs has been first paid or the written consent of the proprietor or tenant has been given.

    History. Code 1950, § 33-153; 1964, c. 565; 1970, c. 322, § 33.1-240; 2014, c. 805.

    Cross references.

    For general provisions as to judgment and post-judgment procedure in eminent domain proceedings, see § 25.1-237 et seq.

    § 33.2-718. Highways not to be established through cemetery or seminary of learning without owners’ consent.

    No highway shall be established upon or through the lands of any cemetery or through the lands of any seminary of learning without the consent of the owners thereof.

    History. Code 1950, § 33-154; 1964, c. 565; 1970, c. 322, § 33.1-241; 2014, c. 805.

    § 33.2-719. Abandonment of certain highways and railway crossings.

    The governing body of any county that has chosen or hereafter chooses not to be included in the provisions of Article 3 (§ 33.2-324 et seq.) of Chapter 3, whenever it deems that any part of a highway subject to its jurisdiction is no longer required or an existing crossing by any such highway of the lines of a railway company, or any existing crossing by the lines of a railway company of such highway, is no longer necessary as a part of such highway system, may abandon the section of highway or the crossing.

    The procedure for any such abandonment shall be governed by the provisions applicable to the Board as provided in Articles 1, 2, and 3 (§§ 33.2-900 through 33.2-926 ) of Chapter 9 and all provisions applicable to the Board shall apply, mutatis mutandis, to the governing body of the county.

    History. Code 1950, § 33-155.1; 1970, c. 322, § 33.1-243; 2014, c. 805.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “33.2-901” was changed to “33.2-900.”

    § 33.2-720. Supervisors may issue process.

    The governing body of a county shall have power to cause process to issue and compel the attendance of witnesses and other parties.

    History. Code 1950, § 33-159; 1970, c. 322, § 33.1-244; 2014, c. 805.

    § 33.2-721. Compensation of clerk of board.

    The clerk of the local governing body of a county shall receive for the duties to be performed by him under the provisions of this article compensation to be fixed and allowed to him by the local governing body.

    History. Code 1950, § 33-160; 1956, c. 582; 1970, c. 322, § 33.1-245; 2014, c. 805.

    Cross references.

    As to compensation in localities where clerk of court also serves as clerk of the governing body, see § 15.2-1538 .

    § 33.2-722. Discontinuance of gates on public highways.

    Whenever a public highway is, or has been, established with gates, any person may apply to the governing body of the county to have such gates discontinued, on which application proceedings shall be had in accordance with the applicable provisions of §§ 33.2-706 through 33.2-717 . If the local governing body decides that the gates shall be removed, it shall direct the sheriff of the county to remove the same, and the sheriff shall do so at such time as the local governing body may direct.

    When damages are allowed to any person or persons on account of the removal of such gates, such damages and the costs incident to the proceeding shall be paid out of the county general fund. Any such person shall have an appeal of right to the circuit court of the county, at any time within 10 days from the date of the order making such allowance, but only from the amount of damages allowed.

    History. Code 1950, § 33-161; 1970, c. 322, § 33.1-246; 2014, c. 805.

    Article 3. Assumption of District Highway Indebtedness.

    § 33.2-723. Assumption of district highway indebtedness by counties.

    1. Any county may assume the payment of and pay any outstanding indebtedness of any magisterial district or districts thereof incurred for the purpose of constructing public highways that were subsequently taken over by the Commonwealth, provided the assumption thereof is approved by a majority of the qualified voters of the county voting on the question at an election to be held as provided in this section.
    2. The governing body of the county may, by a resolution entered of record in its minute book, require the judges of election to open a poll at the next regular election and take the sense of the qualified voters of the county upon the question whether or not the county shall assume the highway indebtedness of district, or districts. The local governing body shall cause notice of such election to be given by the posting of written notice thereof at the front door of the county courthouse at least 30 days prior to the date the same is to be held and by publication thereof once a week for two successive weeks in a newspaper published or having general circulation in the county, which notice shall set forth the date of such election and the question to be voted on.

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    3. The ballots for use in voting upon the question so submitted shall be prepared, printed, distributed, voted, and counted and the returns made and canvassed in accordance with the provisions of § 24.2-684 . The results shall be certified by the commissioners of election to the county clerk, who shall certify the same to the governing body of the county, and such returns shall be entered of record in the minute book of the local governing body.
    4. If a majority of the voters voting on the question vote in favor of the assumption by the county of the highway indebtedness of any district of the county, such indebtedness shall become and be an obligation of the county and as binding thereon as if the same had been originally contracted by the county. In such event the governing body of the county is authorized to levy and collect taxes throughout the county for the payment of the district indebtedness so assumed, both as to principal and interest.
    5. Nothing contained in this section shall affect the validity of such district highway obligations in the event that the result of such election is against the assumption thereof by the county, but they shall continue to be as valid and binding in all respects as they were in their inception.

    History. Code 1950, §§ 33-256, 33-257, 33-258, 33-259, 33-260; 1970, c. 322, §§ 33.1-321, 33.1-322, 33.1-323, 33.1-324, 33.1-325; 2014, c. 805.

    Chapter 8. Offenses Concerning Highways.

    § 33.2-800. Definition.

    As used in this chapter, “highway” means a state or county highway.

    History. Code 1950, § 33-278; 1970, c. 322, § 33.1-344; 2014, c. 805.

    § 33.2-801. Cutting or damaging trees; damaging bridges; damaging markers; obstructing highways; penalty.

    Any person is guilty of a Class 1 misdemeanor who:

    1. Cuts or damages a tree within 50 feet of a highway so as to render it liable to fall and leaves it standing;
    2. Knowingly and willfully, without lawful authority, breaks down, destroys, or damages any bridge or log placed across a stream for the accommodation of pedestrians;
    3. Obstructs any highway or any ditch made for the purpose of draining the highway;
    4. Willfully or maliciously displaces, removes, destroys, or damages any highway sign or historical marker or any inscription thereon that is lawfully within a highway; or
    5. Puts or casts into any public highway any glass, bottles, glassware, crockery, porcelain or pieces thereof, caltrops or any pieces of iron or hard or sharp metal, or any nails, tacks, or sharp-pointed instruments of any kind, likely in their nature to cut or puncture any tire of any vehicle or injure any animal traveling thereon. This subdivision shall not apply to the use of any tire deflation device by a law-enforcement officer while in the discharge of his official duties, provided the device was approved for use by the Division of Purchase and Supply.

    History. Code 1950, § 33-279; 1956, c. 676; 1970, c. 322, § 33.1-345; 1972, c. 65; 1980, c. 141; 1981, c. 19; 1988, c. 79; 1989, c. 727; 1997, c. 136; 2014, c. 805.

    Cross references.

    As to punishment for Class 1 misdemeanors, see § 18.2-11 .

    As to refusing to pay toll, see § 46.2-819 .

    § 33.2-802. Dumping trash; penalty.

    1. It is unlawful for any person to dump or otherwise dispose of trash, garbage, refuse, litter, a companion animal as defined in § 3.2-6500 for the purpose of disposal, or other unsightly matter on (i) public property, including a public highway, right-of-way, or property adjacent to such highway or right-of-way, or (ii) private property without the written consent of the owner or his agent.
    2. If a person is arrested for a violation of this section and the matter alleged to have been illegally dumped or disposed of has been ejected from a motor vehicle or transported to the disposal site in a motor vehicle, the arresting officer may comply with the provisions of § 46.2-936 in making an arrest.If a violation of this section has been observed by any person and the matter illegally dumped or disposed of has been ejected or removed from a motor vehicle, the owner or operator of the motor vehicle shall be presumed to be the person ejecting or disposing of the matter. However, such presumption shall be rebuttable by competent evidence.
    3. Any person convicted of a violation of this section is guilty of a misdemeanor punishable by confinement in jail for not more than 12 months and a fine of not less than $500 or more than $2,500, either or both. In lieu of the imposition of confinement in jail, the court may order the defendant to perform a mandatory minimum of 10 hours of community service in litter abatement activities.
    4. The governing body of any locality may adopt ordinances not in conflict with the provisions of this section and may repeal or amend such ordinances.
    5. The provisions of this section shall not apply to the lawful disposal of such matter in landfills.

    History. Code 1950, § 33-279.1; 1950, p. 453; 1970, c. 264, § 33.1-346; 1972, c. 65; 1976, c. 773; 1978, c. 226; 1981, c. 340; 1988, c. 805; 1995, c. 657; 2000, c. 20; 2003, cc. 113, 787; 2013, c. 156; 2014, c. 805; 2021, Sp. Sess. I, c. 175.

    Cross references.

    As to penalties for littering in state parks, see § 10.1-200.2 .

    As to release of privileged information by Department of Motor Vehicles, see § 46.2-208 .

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 175, effective July 1, 2021, in subsection A, substituted “It is unlawful” for “It shall be unlawful” and inserted the clause (i) and (ii) designations; in subsection B, substituted “If a person” for “When any person” in the first paragraph, and substituted “If a violation of” for “When a violation of the provisions of” in the second paragraph; in subsection C, substituted “$500” for “$250”; and substituted “body of any locality” for “bodies of localities” in subsection D.

    CASE NOTES

    Probable cause to arrest. —

    Police officer had probable cause to arrest defendant from the moment he observed defendant drop his coat in the street as he was running away from the officer. Bynum v. Commonwealth, 2012 Va. App. LEXIS 408 (Va. Ct. App. Dec. 18, 2012) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Reasonable suspicion. —

    Police officers possessed a reasonable suspicion to believe defendant littered as an officer observed defendant attempt to discard a can of beer immediately prior to a traffic stop as defendant was operating a riding mower on a highway. Commonwealth v. Taylor, 2019 Va. Cir. LEXIS 201 (Greene County May 29, 2019).

    Officer possessed a reasonable suspicion to stop the riding lawn mower because defendant operated it on a curve in the roadway of the subdivision, which roadways were highways for law enforcement purposes, while holding a beer in violation of statute, the riding mower lacked required flagging on the back, defendant failed to drive to the right side of the highway as required, and reasonable suspicion existed to believe that he littered by discarding beer cans on private property. Commonwealth v. Taylor, 102 Va. Cir. 190, 2019 Va. Cir. LEXIS 1198 (Greene County May 29, 2019).

    Traffic stop was reasonably justified for littering and impermissible window tinting because combined, it would not be unreasonable to stop defendant for those violations and also give a warning for speeding; therefore, the the investigators stopping defendant for the purported traffic violations and littering was lawful. Commonwealth v. Ramey, 108 Va. Cir. 494, 2021 Va. Cir. LEXIS 212 (Augusta County Oct. 5, 2021).

    Duration of Stop. —

    Assuming the underlying justification for a stop was a littering infraction, drug task force officers failed to “diligently pursue” the underlying purpose of the stop and, as such, unreasonably prolonged the stop beyond the time necessary to address its justification; therefore, defendant’s motion to suppress was granted. Commonwealth v. Ramey, 108 Va. Cir. 494, 2021 Va. Cir. LEXIS 212 (Augusta County Oct. 5, 2021).

    § 33.2-803. Dump creating fire hazard to public bridge; penalty.

    It shall be unlawful for any person to establish or maintain a public or private dump containing flammable articles within 500 feet of any public bridge constructed wholly or partly of wood so as to create a fire hazard to such bridge. Any person violating this section is guilty of a Class 1 misdemeanor. Each day of operation in violation of this section shall constitute a separate offense. An offense in violation of this section may be enjoined in the manner provided by law for the abatement of public nuisances.

    History. Code 1950, § 33-279.2; 1958, c. 91; 1970, c. 322, § 33.1-347; 2014, c. 805.

    § 33.2-804. Junkyards; penalty.

    1. For the purpose of promoting the public safety, health, welfare, convenience, and enjoyment of public travel, protecting the public investment in public highways, and preserving and enhancing the scenic beauty of lands bordering public highways, it is hereby declared to be in the public interest to regulate and restrict the establishment, operation, and maintenance of junkyards in areas adjacent to the highways within the Commonwealth.
    2. As used in this section:“Automobile graveyard” means any lot or place that is exposed to the weather and upon which more than five motor vehicles of any kind that are incapable of being operated and which it would not be economically practical to make operative are placed, located, or found. The movement or rearrangement of vehicles within an existing lot or facility does not render this definition inapplicable. The provisions established by this subsection shall begin with the first day that the vehicle is placed on the subject property.“Federal-aid primary highway” means any highway within that portion of the primary state highway system as established and maintained under Article 2 (§ 33.2-310 et seq.) of Chapter 3, including extensions of such system within municipalities that have been approved by the U.S. Secretary of Commerce pursuant to 23 U.S.C. § 103(b).“Junk” means old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber, debris, or waste; junked, dismantled, or wrecked automobiles or parts thereof; and old or scrap iron, steel, or other ferrous or nonferrous material.“Junkyard” means an establishment or place of business that is maintained, operated, or used for storing, keeping, buying, or selling junk or for the maintenance or operation of an automobile graveyard. “Junkyard” includes garbage dumps and sanitary landfills.“National Highway System” means the federal-aid highway system referenced in 23 U.S.C. § 103 and regulations adopted pursuant thereto, which includes those highways that are designated as such by congressional action or designation by the U.S. Secretary of Transportation. Prior to congressional approval or designation by the U.S. Secretary of Transportation, highways classified as National System of Interstate and Defense Highways, Dwight D. Eisenhower National System of Interstate and Defense Highways, Interstate System, or federal-aid primary highways as that system existed on June 1, 1991, shall be considered as the National Highway System.“Primary highway” means any highway within the primary state highway system as established and maintained under Article 2 (§ 33.2-310 et seq.) of Chapter 3, including extensions of such system within municipalities.“Visible” means capable of being seen without visual aid by a person of normal visual acuity.
    3. No junkyard shall be established any portion of which is within 1,000 feet of the nearest edge of the right-of-way of any National Highway System highway or primary highway or within 500 feet of the nearest edge of the right-of-way of any other highway or city street, except the following:
      1. Junkyards that are screened by natural objects, plantings, fences, or other appropriate means so as not to be visible from the main-traveled way of the highway or city street or otherwise removed from sight.
      2. Junkyards that are located in areas that are zoned for industrial use under authority of state law or in unzoned industrial areas as determined by the Board.
      3. Junkyards that are not visible from the main-traveled way of the highway or city street.
    4. Any junkyard lawfully in existence on April 4, 1968, that is within 1,000 feet of the nearest edge of the right-of-way and visible from the main-traveled way of any interstate or federal-aid primary highway, and not located within an industrial area, shall be screened, if feasible, by the Commissioner of Highways at locations on the highway right-of-way or in areas acquired for such purposes outside the right-of-way, so as not to be visible from the main-traveled way of such highways.Any junkyard lawfully in existence on April 4, 1968, that is within 1,000 feet of the nearest edge of the right-of-way of any other primary highway or within 500 feet of the nearest edge of the right-of-way of any other highway and visible from the main-traveled way of such highway, and not located within an industrial area, may be screened by the Commissioner of Highways in the same manner as junkyards adjacent to National Highway System highways.The Commissioner of Highways is authorized to acquire by purchase, gift, or the power of eminent domain such lands or interests in lands as may be necessary to provide adequate screening of such junkyards.
    5. When the Commissioner of Highways determines that the topography of the land adjoining a National Highway System highway will not permit adequate screening of such junkyards or the screening of such junkyards would not be economically feasible, the Commissioner of Highways shall have the authority to acquire by gift, purchase, or the power of eminent domain such interests in lands as may be necessary to secure the relocation, removal, or disposal of the junkyards and to pay for the costs of their relocation, removal, or disposal. When the Commissioner of Highways determines that the topography of the land adjoining any other highway will not permit adequate screening or such would not be feasible, the Commissioner of Highways may exercise the same authority to relocate such junkyards as is vested in him in regard to National Highway System highways.
    6. Any junkyard that comes into existence after April 4, 1968, and that cannot be made to conform to this section is declared to be a public and private nuisance and may be forthwith removed, obliterated, or abated by the Commissioner of Highways or his representatives. The Commissioner of Highways may collect the cost of such removal, obliteration, or abatement from the person owning or operating the junkyard.
    7. The Board is authorized to enter into agreements with the United States as provided in 23 U.S.C. § 136 with respect to control of junkyards.
    8. The Commissioner of Highways shall not be required to expend any funds for screening or relocation under this section unless and until federal-aid matching funds are made available for this purpose.
    9. Any person violating any provision of this section is guilty of a Class 1 misdemeanor.

    History. Code 1950, § 33-279.3; 1958, c. 552; 1962, c. 8; 1966, c. 485; 1968, c. 240; 1970, c. 322, § 33.1-348; 1973, c. 328; 2005, c. 291; 2013, c. 127; 2014, c. 805.

    Cross references.

    As to local ordinances taxing and regulating “automobile graveyards” and “junkyards,” see § 15.2-903 .

    Chapter 9. Abandonment and Discontinuance of Highways and Roads.

    Article 1. Abandonment and Discontinuance of Highways in Primary State Highway System.

    § 33.2-900. Definitions.

    As used in this chapter, unless the context requires a different meaning:

    “Abandonment” means that the public’s right to use a public highway, public landing, or public crossing has been extinguished.

    “Discontinuance” means that the Board has determined that a highway, landing, or crossing no longer serves the public convenience warranting its maintenance at public expense; it divests the Department from maintenance responsibilities. Discontinuance does not render a highway, landing, or crossing unavailable for public use.

    History. 2014, c. 805.

    § 33.2-901. Discontinuance of a section of a highway or railroad crossing.

    In any case in which a section of a highway is deemed by the Commissioner of Highways no longer necessary for the uses of the primary state highway system, or when, in laying out, constructing, or maintaining sections of highways in the primary state highway system, a part of a highway has been or is straightened or the location of a part of it is altered and a section of the highway is deemed by the Commissioner of Highways no longer necessary for the uses of the primary state highway system, the Commissioner of Highways, by and with the approval of the Board, may discontinue such section of the highway as a part of the primary state highway system. In addition, in any case in which an existing crossing by such highway of the lines of a railroad company or a crossing by the lines of a railroad company of such highway is deemed by the Commissioner of Highways no longer necessary as a part of the primary state highway system, the Commissioner of Highways, by and with the approval of the Board, may discontinue such crossing as a part of the primary state highway system. Discontinuance under this section does not constitute an abandonment of such highway as a public highway or such crossing as a public crossing unless the procedure conforms to § 33.2-902 .

    The opening of the new section of highway by the Commissioner of Highways and the entry by the Board upon its minutes of its approval of the discontinuance of the section of the highway or the railroad crossing shall be sufficient to constitute such discontinuance.

    History. Code 1950, § 33-76.1; 1950, p. 727; 1970, c. 322, § 33.1-144; 2014, c. 805.

    CASE NOTES

    Public right of way in an unmaintained county road was not eliminated where there was no affirmative evidence of county’s intent to abandon the road since mere non-maintenance or non-use of a road could not destroy the public’s right of way. Board of Supvrs. v. Ripper, 790 F. Supp. 632, 1992 U.S. Dist. LEXIS 5939 (W.D. Va. 1992) (decided under prior law).

    § 33.2-902. Abandonment of highway or railroad crossing; procedure.

    1. The Commissioner of Highways either on his own motion or upon petition of any interested landowner may cause any section of a highway in the primary state highway system, or any crossing by such highway of the lines of a railroad company or crossing by the lines of a railroad company of such highway, to be abandoned altogether as a public highway or as a public crossing by complying substantially with the procedure provided in this section.
    2. The Commissioner of Highways or any interested landowner may file application with the Board setting out the section of the highway or the railroad crossing sought to be abandoned as a public highway or public railroad crossing. The Board shall give notice of the filing of the application (i) by posting a notice of such application at least three days before the first day of a regular term of the circuit court at the front door of the courthouse of the county in which the section of the highway or railroad crossing sought to be abandoned as a public highway or public railroad crossing is located, or if the section of the highway or the railroad crossing is located partly in two or more counties, at the front door of the courthouse of each county, or (ii) by publishing a notice of such application in two or more issues of a newspaper published in the county or one of the counties in which the section of the highway or the crossing is located. The Board shall also send by registered mail a notice of the application to the governing body of the county or counties. If such highway or railroad crossing is in a town with a population of 3,500 or less, the Board shall give notice to the governing body of the town in the same manner as notice is required to be given to the governing body of the county in which the town is located.
    3. If one or more landowners in the county or counties affected by such proposed abandonment or the governing body of a county or town in which the highway or railroad crossing is located files a petition with the Board within 30 days after notice is posted or published and mailed as provided in this section, the Board or a representative thereof shall hold a public hearing in the county or one of the counties for consideration of the application and shall give notice of the time and place of the hearing by publishing such information in at least two issues in a newspaper having general circulation in the county or one of the counties and by mailing notice of the hearing to the governing body of the county or counties, and if applicable to the governing body of the town, in which the highway or railroad crossing is located.
    4. If a petition for a public hearing is not filed as provided in this section, or if after a public hearing is held a majority of the Board is satisfied that no public necessity exists for the continuance of the section of highway as a public highway or the railroad crossing as a public railroad crossing or that the welfare of the public would be served best by abandoning the section of highway or the railroad crossing as a public highway or public railroad crossing, the Board shall (i) within four months of the 30-day period during which notice was posted where no petition for a public hearing was filed or (ii) within four months after the public hearing enter an order on its minutes abandoning the section of highway as a public highway or the railroad crossing as a public railroad crossing, and with that order the section of highway shall cease to be a public highway, unless the local governing body takes control as provided in this article, or the railroad crossing shall cease to be a public railroad crossing. If the Board is not so satisfied, it shall enter an order dismissing the application within the applicable four months provided in this subsection.
    5. In considering the abandonment of any section of highway under the provisions of this section, due consideration shall be given to the historic value, if any, of such highway.

    History. Code 1950, § 33-76.2; 1950, p. 727; 1970, c. 322, § 33.1-145; 1978, c. 187; 1980, c. 39; 2014, c. 805.

    § 33.2-903. Grade crossing closing and safety.

    1. It is the public policy of the Commonwealth to enhance public safety by establishing safe highway-rail grade crossings, to consolidate and close unsafe, unnecessary, or redundant crossings, and to limit the establishment of new crossings. The Board has the authority to close public highway-rail grade crossings on all systems of state highways for which it has responsibility.
    2. The Commissioner of Highways on his own motion or by request of any interested landowner, railroad corporation, or local governing body may petition the Board to close a highway-rail grade crossing as a public crossing.
    3. Prior to petitioning the Board to close a highway-rail grade crossing, the Commissioner of Highways shall conduct a traffic engineering study to determine the validity of closing the crossing. The traffic engineering study shall consider all factors, including (i) the number of freight and passenger trains passing the crossing and their timetable speeds, (ii) the distance to an alternate crossing, (iii) the availability of alternate access, (iv) the crossing’s accident history during the five-year period immediately prior to the study, (v) the number of vehicles per day using the crossing, (vi) the posted speed limit at the crossing, (vii) the type of warning devices present at the crossing, (viii) the alignment of the roadway and railroad and their angle of intersection, (ix) the number of trucks per day carrying hazardous materials through the crossing, (x) the number of vehicles per day carrying passengers for hire through the crossing, (xi) the number of school buses per day using the crossing, and (xii) the use of the crossing by emergency vehicles.
    4. The results of the traffic engineering study shall be made public in accordance with the procedures set forth in § 33.2-902 . The Commissioner of Highways shall present his findings and recommendations to the Board, and the Board shall decide what actions to take regarding the railroad crossing at issue.

    History. 1996, cc. 114, 157, § 33.1-145.1; 2014, c. 805.

    § 33.2-904. Effect of abandonment.

    In the case of abandonment of a section of highway or a railroad crossing that is part of the primary state highway system under the provisions of this article, such section of highway or such railroad crossing shall not thereafter be a public highway or public railroad crossing unless conveyed to the county or town and subject to the authority of the local governing body. In the case of proceedings for abandonment of any section of highway, not including a railroad crossing situated less than one and one-half miles from another public crossing over the same railroad, as a public highway under the provisions of this article, the local governing body, insofar as such section of highway is located within the county of such governing body, shall have authority to take over such section of highway, not including the railroad crossing, and maintain it as a public highway. However, the local governing body shall adopt an ordinance or resolution to that effect and to give notice thereof to the Commissioner of Highways within 30 days from the posting or publishing and mailing of the notice of the application for the abandonment of such section of highway as a public highway as provided in this article.

    History. Code 1950, § 33-76.3; 1950, p. 728; 1970, c. 322, § 33.1-146; 2014, c. 805.

    CASE NOTES

    Public right of way in an unmaintained county road was not eliminated where there was no affirmative evidence of county’s intent to abandon the road since mere non-maintenance or non-use of a road could not destroy the public’s right of way. Board of Supvrs. v. Ripper, 790 F. Supp. 632, 1992 U.S. Dist. LEXIS 5939 (W.D. Va. 1992) (decided under prior law).

    § 33.2-905. Appeal to circuit court.

    1. Any one or more of the landowners who filed a petition, the governing body of any county or town in which the section of highway or the railroad crossing is wholly or partly located, or the Commissioner of Highways may within 30 days from the entry of the order by the Board appeal from the order to the circuit court of the county in which the section of highway or the railroad crossing, or the major portion thereof, sought to be abandoned under § 33.2-902 is located. If the Board fails to enter an order pursuant to § 33.2-902 , such person or persons named in this section may appeal to the appropriate circuit court within 30 days from such failure. Such appeal shall be filed by petition in the clerk’s office of such court, setting out the order appealed from or the cause appealed from where no order was entered and the grounds of such appeal. Upon the filing of such petition, the clerk of the circuit court shall docket the appeal, giving it a preferred status. If the appeal is by any of the landowners who filed a petition with the Board for a public hearing, notice of such appeal shall be served upon the attorney for the Commonwealth and the Commissioner of Highways. If the appeal is by the local governing body or the Commissioner of Highways, notice of such appeal shall be served upon the landowners who filed petition with the Board for a public hearing. No such appeal shall be tried by the court within 10 days after notice is given as provided in this section unless such notice is waived. The circuit court shall hear the matter de novo with further right of appeal as provided by law. Upon the hearing of the appeal, the court shall ascertain and by its order determine whether public necessity exists for the continuance of the section of highway or the railroad crossing as a public highway or public railroad crossing or whether the welfare of the public will be served best by abandoning the section of the highway or the railroad crossing as a public highway or public railroad crossing and shall enter its order accordingly. The clerk of the court shall certify a copy of the order of the court to the Board.
    2. Upon any such appeal, if it appears to the court that by the abandonment of such section of highway or such railroad crossing as a public highway or public railroad crossing any party to such appeal would be deprived of access to a public highway, the court may cause the railroad company or the local governing body to be made parties to the proceedings, if not already parties, and may enter such orders as seem just and proper for keeping open such section of highway or such railroad crossing for the benefit of such party or parties.
    3. The provisions of this section shall not apply to any discontinuance of a portion of the primary state highway system under § 33.2-901 .

    History. Code 1950, § 33-76.4; 1950, p. 729; 1970, c. 322, § 33.1-147; 1978, c. 187; 2014, c. 805.

    § 33.2-906. Alternative procedure for abandonment of old highway or railroad crossing to extent of alteration.

    The Commissioner of Highways may declare any highway in the primary state highway system or any highway in the primary state highway system containing a highway-rail grade crossing abandoned when (i) it has been or is altered and a new highway that serves the same users as the old highway is constructed as a replacement and approved by the Commissioner of Highways or (ii) the Chief Engineer of the Department recommends that it is appropriate in connection with the completion of a construction or maintenance project. The old highways or the crossing may be abandoned to the extent of such alteration, but no further, by the entry by the Commissioner of Highways of such abandonment upon the records of the Department.

    History. Code 1950, § 33-76.5; 1950, p. 730; 1952, c. 124; 1970, c. 322, § 33.1-148; 2011, cc. 36, 152; 2014, c. 805.

    § 33.2-907. Conveying sections of highways or other property no longer necessary.

    1. Whenever a highway or a section of a highway has been abandoned in accordance with the provisions of § 33.2-902 or 33.2-906 and is deemed by the Commissioner of Highways no longer necessary for the uses of the primary state highway system, the Commissioner of Highways shall so certify in writing and may execute in the name of the Commonwealth a deed or deeds conveying such section or sections of highway, either for consideration or in exchange for other lands that may be necessary for the uses of the primary state highway system. Before any such deed either for the sale or exchange of land is executed conveying any section of a highway along which any person resides, the Commissioner of Highways shall give notice to the governing bodies of the county and town and to the owner of the land upon which such person resides of the intention to convey the section of highway. If after a reasonable notice of such intention any such landowner or local governing body so requests, a hearing shall be ordered by the Commissioner of Highways as provided in this article. If upon such hearing it is determined that such section of highway should be left open for the reasonable convenience of such landowner or the public, then such section of highway shall not be conveyed. No such hearing shall be held if such highway was abandoned under § 33.2-902 .
    2. When real estate acquired incidental to the construction, reconstruction, alteration, maintenance, and repair of the primary state highway system that does not constitute a section of the public highway is deemed by the Commissioner of Highways no longer necessary for the uses of the primary state highway system, the Commissioner of Highways shall so certify in writing and may execute in the name of the Commonwealth a deed conveying such real estate, interest therein, or any portion thereof, either for consideration or in exchange for other lands that may be necessary for the uses of the primary state highway system.
    3. Upon petition of a local governing body, the Board may transfer real estate acquired incidental to the construction, reconstruction, alteration, maintenance, or repair of the primary state highway system that constitutes a section of public highway to the local governing body, and upon such transfer such section of highway shall cease being a part of the primary state highway system.

    History. Code 1950, § 33-76.6; 1950, p. 730; 1954, c. 88; 1970, c. 322, § 33.1-149; 2002, c. 445; 2011, cc. 36, 152; 2014, c. 805.

    Article 2. Abandonment and Discontinuance of Highways in Secondary State Highway System.

    § 33.2-908. Discontinuance of highway, landing, or railroad crossing; procedure.

    1. For the purposes of this article, “landing” means a place on a river or other navigable body of water for loading or unloading goods or for the reception and delivery of travelers, the terminus of a highway on a river or other navigable body of water for loading or unloading goods or for the reception and delivery of travelers, or a place for loading or unloading watercraft, but not a harbor for watercraft.
    2. Upon petition of the governing body of any county in which a highway, landing, or railroad crossing is located or upon petition of the governing body of a town with a population of 3,500 or less, or on its own motion, the Board may discontinue any highway, landing, or railroad crossing in the secondary state highway system as a part thereof in any case in which the Board deems such highway, landing, or railroad crossing not required for public convenience. If the Board on its own motion desires to discontinue any such highway, landing, or railroad crossing, the Board shall give notice to the affected governing body at least 30 days prior to such discontinuance. In addition, in cases where only a highway or landing or the maintenance thereof is to be discontinued, the Board shall give notice of such intention to the public at least 30 days prior to such action by publishing such notice in at least one issue in a newspaper having general circulation in the county in which the affected highway or landing is situated and, where practicable, by a registered letter to each landowner whose property abuts the section of highway or landing to be discontinued. For the purposes of this section, the Board may, where practicable, rely upon the tax records of the county to determine the names and addresses of such owners. These additional notice provisions shall not be required in cases where the section of highway to be discontinued has been replaced by a new highway serving the same users. If the governing body of any county or town requests a hearing, or upon petition of any landowner whose property abuts a highway or landing that is to be discontinued, the Board shall hold a hearing in the county in which the highway, landing, or railroad crossing is located in order to ascertain whether or not such highway, landing, or railroad crossing should be discontinued. From the finding of the Board, an appeal shall lie to the circuit court of the county in which such highway, landing, or railroad crossing is located and the procedure thereon shall conform to the procedure prescribed in § 33.2-905 . The jurisdiction and procedure for abandonment of highways and landings discontinued as parts of the secondary state highway system in accordance with this article shall remain in the local governing bodies.
    3. In cases where the Chief Engineer of the Department recommends that it is appropriate in connection with the completion of a construction or maintenance project to discontinue any highway, landing, or railroad crossing in the secondary state highway system, the Commissioner of Highways may discontinue such highway, landing, or railroad crossing as he deems proper. The entry by the Commissioner of Highways upon the records of the Department of the discontinuance shall be sufficient to constitute such discontinuance.

    History. Code 1950, § 33-76.7; 1950, p. 731; 1970, c. 322, § 33.1-150; 1978, c. 337; 1981, c. 323; 2011, cc. 36, 152; 2014, c. 805.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    Discontinuance and abandonment are not the same thing. Ord v. Fugate, 207 Va. 752 , 152 S.E.2d 54, 1967 Va. LEXIS 132 (1967).

    Meaning and effect of discontinuance. —

    Discontinuance of a secondary road means merely that it is removed from the state secondary road system. Discontinuance of a road is a determination only that it no longer serves public convenience warranting its maintenance at public expense. The effect of discontinuance upon a road is not to eliminate it as a public road or to render it unavailable for public use. Ord v. Fugate, 207 Va. 752 , 152 S.E.2d 54, 1967 Va. LEXIS 132 (1967).

    When hearing required. —

    There can be no doubt that the legislature meant that a hearing, to ascertain whether a secondary road should be discontinued, is required only if such a hearing is requested by the local governing body. Ord v. Fugate, 207 Va. 752 , 152 S.E.2d 54, 1967 Va. LEXIS 132 (1967).

    § 33.2-909. Abandonment of highway, landing, or railroad crossing; procedure.

    1. The governing body of any county on its own motion or upon petition of any interested landowner may cause any section of the secondary state highway system, or any crossing by the highway of the lines of a railroad company or crossing by the lines of a railroad company of the highway, deemed by it to be no longer necessary for the uses of the secondary state highway system to be abandoned altogether as a public highway, a public landing, or a public railroad crossing by complying substantially with the procedure provided in this section.
    2. The governing body of the county shall give notice of its intention to abandon any such highway, landing, or railroad crossing (i) by posting a notice of such intention at least three days before the first day of a regular term of the circuit court at the front door of the courthouse of the county in which the section of the highway, landing, or railroad crossing sought to be abandoned as a public highway, public landing, or public railroad crossing is located or (ii) by posting notice in at least three places on and along the highway, landing, or railroad crossing sought to be abandoned for at least 30 days and in either case by publishing notice of its intention in two or more issues of a newspaper having general circulation in the county. In addition, the governing body of the county shall give notice of its intention to abandon such highway, landing, or railroad crossing to the Board or the Commissioner of Highways. In any case in which the highway, landing, or railroad crossing proposed to be abandoned lies in two or more counties, the governing bodies of such counties shall not abandon such highway, landing, or railroad crossing unless and until all affected governing bodies agree. The procedure in such cases shall conform mutatis mutandis to the procedure prescribed for the abandonment of a highway, landing, or railroad crossing located entirely within a county.When the governing body of a county gives notice of intention to abandon a public landing, the governing body shall also give such notice to the Department of Wildlife Resources.
    3. If one or more landowners in the county whose property abuts the highway, landing, or railroad crossing proposed to be abandoned, or if only a section of a highway, landing, or railroad crossing is proposed to be abandoned, whose property abuts such section, or the Board or the Department of Wildlife Resources, in the case of a public landing, files a petition with the governing body of the county within 30 days after notice is posted and published as provided in this section, the governing body of the county shall hold a public hearing on the proposed abandonment and shall give notice of the time and place of the hearing by publishing such information in at least two issues in a newspaper having general circulation in the county and shall also give notice to the Board or, if a public landing is sought to be abandoned, to the Department of Wildlife Resources.
    4. If a petition for a public hearing is not filed as provided in this section, or if after a public hearing is held the governing body of the county is satisfied that no public necessity exists for the continuance of the section of the secondary highway as a public highway or the railroad crossing as a public railroad crossing or the landing as a public landing or that the safety and welfare of the public would be served best by abandoning the section of highway, the landing, or the railroad crossing as a public highway, public landing, or public railroad crossing, the governing body of the county shall (i) within four months of the 30-day period during which notice was posted where no petition for a public hearing was filed or (ii) within four months after the public hearing adopt an ordinance or resolution abandoning the section of highway as a public highway, or the landing as a public landing, or the railroad crossing as a public railroad crossing, and with that ordinance or resolution the section of highway shall cease to be a public highway, a public landing, or a public railroad crossing. If the governing body is not so satisfied, it shall dismiss the application within the applicable four months provided in this subsection.
    5. A finding by the governing body of a county that a section of the secondary state highway system is no longer necessary for the uses of the secondary state highway system may be made if the following conditions exist:
      1. The highway is located within a residence district as defined in § 46.2-100 ;
      2. The residence district is located within a county having a density of population exceeding 1,000 per square mile;
      3. Continued operation of the section of highway in question constitutes a threat to the public safety and welfare; and
      4. Alternate routes for use after abandonment of the highway are readily available.
    6. In considering the abandonment of any section of highway under the provisions of this section, due consideration shall be given to the historic value, if any, of such highway.
    7. Any ordinance or resolution of abandonment issued in compliance with this section shall give rise in subsequent proceedings, if any, to a presumption of adequate justification for the abandonment.
    8. No public landing shall be abandoned unless the Board of Wildlife Resources shall by resolution concur in such abandonment.

    History. Code 1950, § 33-76.8; 1950, p. 731; 1970, c. 322, § 33.1-151; 1975, c. 255; 1978, c. 187; 1980, c. 39; 1981, c. 323; 1990, c. 190; 2014, c. 805; 2020, c. 958.

    The 2020 amendments.

    The 2020 amendment by c. 958, substituted “Wildlife Resources” for “Game and Inland Fisheries” wherever it appears.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    Procedure under this section and under § 33.1-155 distinguished. —

    The General Assembly intended by this section and § 33.1-155 to specify two procedures available to the governing bodies in abandoning roads in the secondary highway system. The underlying purpose of the two sections appears to rest in the construction of a new road under the alternative procedure provided in § 33.1-155, whereas the more complicated procedure provided by this section makes no provision for the construction of a new road in lieu of the abandoned road. Hudson v. AMOCO, 152 F. Supp. 757, 1957 U.S. Dist. LEXIS 3462 (D. Va. 1957), aff'd, 253 F.2d 27, 1958 U.S. App. LEXIS 3818 (4th Cir. 1958).

    When abandonment proceedings are undertaken under § 33.1-155, the construction of a new road in lieu of the old which serves the same citizens as the old road is contemplated. The more complex procedure provided for in this section is not predicated upon, nor does it require, construction of a new road in lieu of the abandoned road. When a new road is constructed, the county board is not required to adopt the procedure provided for in this section but may act under § 33.1-155. AMOCO v. Leaman, 199 Va. 637 , 101 S.E.2d 540, 1958 Va. LEXIS 109 (1958) (commented on in 44 Va. L. Rev. 628 (1958)).

    The construction, maintenance and abandonment of highways is a matter of universal concern to all residents of a county, not necessarily those individuals who reside on the road involved. Board of Supvrs. v. VEPCO, 213 Va. 407 , 192 S.E.2d 768, 1972 Va. LEXIS 375 (1972).

    Section adequately protects constitutional rights of all interested parties. —

    This section and § 33.1-152 adequately protect the constitutional rights of all interested parties involved in the abandonment of a public road. Board of Supvrs. v. VEPCO, 213 Va. 407 , 192 S.E.2d 768, 1972 Va. LEXIS 375 (1972).

    Basis for abandonment. —

    The statutes nowhere state that “only highway purposes” shall be the basis for abandonment and there is nothing in the statutes to justify this narrow construction. Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959).

    This section is in the disjunctive and a road may be abandoned if either requirement is met. Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959).

    Conditional abandonment facilitates use of discontinuing power. —

    The reasonable and convenient exercise of the discontinuing power in many cases would be seriously hindered or wholly prevented if conditional abandonment were not permitted. Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959).

    Conditional abandonment of three sections of road held proper under the facts and circumstances. Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959).

    Discontinuance and abandonment are not the same thing. Ord v. Fugate, 207 Va. 752 , 152 S.E.2d 54, 1967 Va. LEXIS 132 (1967).

    When abandonment procedure to be invoked. —

    The General Assembly contemplated that the abandonment procedure of this section and § 33.1-152 would be invoked in situations where abandonment could adversely affect, not the travelling public at large, but an individual party or a few parties. Board of Supvrs. v. Horne, 215 Va. 238 , 208 S.E.2d 56, 1974 Va. LEXIS 265 (1974).

    The power of abandonment is predicated upon public disuse, not upon excessive public use. Board of Supvrs. v. Horne, 215 Va. 238 , 208 S.E.2d 56, 1974 Va. LEXIS 265 (1974).

    Secondary road not to be abandoned because of excessive public use. —

    This section and § 33.1-152 were not intended by the General Assembly to authorize a local board to abandon a secondary public road because its utilization by the public becomes too great. Board of Supvrs. v. Horne, 215 Va. 238 , 208 S.E.2d 56, 1974 Va. LEXIS 265 (1974).

    Reason for restricting local board’s power to abandon secondary roads. —

    When a heavily travelled road is abandoned and no new road is constructed to replace it, the capacity for public use is diminished, the traffic burden is shifted to other roads, and public use is encumbered. That was an important reason why the General Assembly saw fit in enacting this section to restrict a local board’s power to abandon secondary roads to those roads “no longer necessary for the uses of the secondary system.” Board of Supvrs. v. Horne, 215 Va. 238 , 208 S.E.2d 56, 1974 Va. LEXIS 265 (1974).

    Neither this section nor § 33.1-152 requires the building of new roads, but there is nothing in the statute forbidding such. Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959).

    Interested parties not deprived of access to highway. —

    In enacting this section, it was not the legislative intent to deprive interested parties of access to a public highway by abandoning any part of such road. Hiner v. Wenger, 197 Va. 869 , 91 S.E.2d 637, 1956 Va. LEXIS 166 (1956).

    § 33.2-910. Appeal to circuit court.

    Any one or more of the landowners whose property abuts the highway, landing, or railroad crossing proposed to be abandoned, or if only a section of a highway, landing, or railroad crossing is proposed to be abandoned, whose property abuts such section of the highway, landing, or railroad crossing, and who petitioned for a public hearing under § 33.2-909 or the Commissioner of Highways, or if a public landing is proposed to be abandoned, the Director of the Department of Wildlife Resources, may within 30 days from the adoption of an ordinance or resolution by the governing body of the county appeal from the ordinance or resolution to the circuit court of the county in which the section of highway, the public landing, or the railroad crossing sought to be abandoned under § 33.2-909 is located. Where the governing body of the county fails to adopt an ordinance or resolution pursuant to § 33.2-909 , such person or persons named in this section shall within 30 days from such failure have a right of appeal to the appropriate circuit court. Such appeal shall be filed by petition in the clerk’s office of such court, setting out the ordinance or resolution appealed from or the cause appealed from where no ordinance or resolution was adopted and the grounds of such appeal. Upon the filing of such petition, the clerk of the circuit court shall docket the appeal, giving it a preferred status, and if the appeal is by any of the landowners who filed a petition with the governing body of the county for a public hearing, notice of such appeal shall be served upon each member of the governing body of the county pursuant to § 8.01-300 and either the Commissioner of Highways or the Director of the Department of Wildlife Resources, as applicable, and if the appeal is by either the Commissioner of Highways or the Director of the Department of Wildlife Resources, notice of such appeal shall be served upon the governing body of the county and the landowners who filed petition with the governing body of the county for a public hearing. No such appeal shall be tried by the court within 10 days after notice is given, as provided in this section unless such notice is waived. The circuit court shall decide the appeal based upon the record and upon such other evidence as may be presented by the parties. Upon the hearing of the appeal, the court shall ascertain and by its order determine whether adequate justification exists for the decision of the governing body of the county that public necessity exists for the continuance of the section of highway, landing, or the railroad crossing as a public highway, public landing, or public railroad crossing or whether the welfare of the public will be served best by abandoning the section of the highway, landing, or the railroad crossing as a public highway, public landing, or public railroad crossing and shall enter its order accordingly.

    Upon any such appeal, if it appears to the court that by the abandonment of such section of highway, landing, or railroad crossing as a public highway, public landing, or public railroad crossing any party to such appeal would be deprived of access to a public highway, the court may cause the railroad company and the governing body of the county, or either, to be made parties to the proceedings, if not already parties, and may enter such orders as seem just and proper for keeping open such section of highway, landing, or railroad crossing for the benefit of such party or parties.

    History. Code 1950, § 33-76.9; 1950, p. 732; 1970, c. 322, § 33.1-152; 1978, c. 187; 1981, c. 323; 1990, c. 190; 2014, c. 805; 2020, c. 958.

    The 2020 amendments.

    The 2020 amendment by c. 958, in the first paragraph, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” once in the first sentence and twice in the fourth sentence.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    Section adequately protects constitutional rights of all interested parties. —

    This section and § 33.1-151 adequately protect the constitutional rights of all interested parties involved in the abandonment of a public road. Board of Supvrs. v. VEPCO, 213 Va. 407 , 192 S.E.2d 768, 1972 Va. LEXIS 375 (1972).

    Discontinuance and abandonment are not the same thing. Ord v. Fugate, 207 Va. 752 , 152 S.E.2d 54, 1967 Va. LEXIS 132 (1967).

    This section refers to two classes of petitioners. One class consists of interested landowners of a county who become “petitioners” by filing with its governing body a petition for the abandonment of a road. The other class of petitioners in this section consists of landowners of the county affected by such proposed abandonment of a road who become “petitioners” by the filing of a request or petition with the governing body for a public hearing on the proposed abandonment. Board of Supvrs. v. VEPCO, 213 Va. 407 , 192 S.E.2d 768, 1972 Va. LEXIS 375 (1972).

    Landowner who petitions for abandonment may appeal adverse decision. —

    The right of an interested landowner who initiates by petition a proceeding for the abandonment of a road to appeal an adverse decision by the governing body is contemplated and preserved. Board of Supvrs. v. VEPCO, 213 Va. 407 , 192 S.E.2d 768, 1972 Va. LEXIS 375 (1972).

    When abandonment procedure to be invoked. —

    The General Assembly contemplated that the abandonment procedure of this section and § 33.1-151 would be invoked in situations where abandonment could adversely affect, not the travelling public at large, but an individual party or a few parties. Board of Supvrs. v. Horne, 215 Va. 238 , 208 S.E.2d 56, 1974 Va. LEXIS 265 (1974).

    Secondary road not to be abandoned because of excessive public use. —

    This section and § 33.1-151 were not intended by the General Assembly to authorize a local board to abandon a secondary public road because its utilization by the public becomes too great. Board of Supvrs. v. Horne, 215 Va. 238 , 208 S.E.2d 56, 1974 Va. LEXIS 265 (1974).

    “Necessary.” —

    The term “necessary” has a distinct meaning in the context of statutes and judicial decisions concerning the use of public roads. When applied to a public road, necessary is used in the statutes and judicial decisions, not in the sense of being absolutely indispensable to communications between two points, but with relation to the purposes for which public highways are established, namely, the reasonable accommodation of the traveling public. Kirby v. Town of Claremont, 243 Va. 484 , 416 S.E.2d 695, 8 Va. Law Rep. 2826, 1992 Va. LEXIS 38 (1992).

    Scenic value can be sufficient of itself, as a matter of law, to support a finding of public necessity. Kirby v. Town of Claremont, 243 Va. 484 , 416 S.E.2d 695, 8 Va. Law Rep. 2826, 1992 Va. LEXIS 38 (1992).

    “Public necessity” established. —

    Where uncontroverted evidence was that the road leads to a place of scenic beauty, 17 town residents provided extensive evidence that they and other residents of the town regularly use the road for sightseeing purposes, evidence showed that town residents use the road to view a variety of wildlife including cranes, beavers, bald eagles, deer and blue herons, and town residents testified that they enjoyed bringing guests to see the beautiful view and that they considered this view to be an asset of the community, testimony was sufficient to support the finding of the trial court that there was a public necessity, that is, a reasonable accommodation of the public, which would be served by allowing the road to continue in use. Kirby v. Town of Claremont, 243 Va. 484 , 416 S.E.2d 695, 8 Va. Law Rep. 2826, 1992 Va. LEXIS 38 (1992).

    Court to hear matter de novo. —

    The language of this section is mandatory. It provides that, on appeal from the action of the board, the circuit court “shall hear the matter de novo.” This means that the court must hear or try the case on its merits from beginning to end as if no trial or hearing had been held by the board and without any presumption in favor of the board’s decision. Hiner v. Wenger, 197 Va. 869 , 91 S.E.2d 637, 1956 Va. LEXIS 166 (1956).

    Duty of trial court when defendants’ contention supported by substantial evidence. —

    Defendants contended that if the section of the road were abandoned and closed they would not at all times have a reasonable access to their lands. When this issue was presented and supported by substantial evidence it was the duty of the trial court to make the board of supervisors a party to the proceedings and to enter such order or orders as may have been necessary to afford defendants a reasonable and convenient means of ingress and egress from a public highway to their land, as directed by the statute. Hiner v. Wenger, 197 Va. 869 , 91 S.E.2d 637, 1956 Va. LEXIS 166 (1956).

    The phrase “public welfare” is broader than “necessity.” Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959).

    Sufficient evidence supporting nonabandonment on public welfare grounds. —

    Evidence indicating that over its 38-year existence, there had never been a motor vehicle accident on the road combined with the evidence of the town residents’ use of the road for access to view scenic beauty, supported the trial court’s conclusion that the public welfare would not be served best by abandonment of the road. Kirby v. Town of Claremont, 243 Va. 484 , 416 S.E.2d 695, 8 Va. Law Rep. 2826, 1992 Va. LEXIS 38 (1992).

    § 33.2-911. Permissible uses by counties of certain discontinued secondary highways.

    Whenever a secondary highway is discontinued under § 33.2-908 , the highway shall continue to be available for use by the public as a highway, unless it has been abandoned pursuant to this chapter or its use has been modified by an ordinance adopted pursuant to this section. The governing body of the county may by ordinance provide for use of a discontinued highway for any of the following purposes: (i) hiking or bicycle trails and paths or other nonvehicular transportation and recreation; (ii) greenway corridors for resource protection and biodiversity enhancement, with or without public ingress and egress; and (iii) access to historic, cultural, and educational sites.

    History. 1993, c. 349, § 33.1-152.1; 2011, c. 129; 2014, c. 805.

    § 33.2-912. Alternative procedure for abandonment of old highway or crossing to extent of alteration.

    The Commissioner of Highways may declare any highway in the secondary state highway system or any highway in the secondary state highway system containing a highway-rail grade crossing abandoned when (i) it has been or is altered and a new highway that serves the same users as the old highway is constructed as a replacement and approved by the Commissioner of Highways or (ii) the Chief Engineer of the Department recommends that it is appropriate in connection with the completion of a construction or maintenance project. The old highway or the public crossing may be abandoned to the extent of such alteration, but no further, by the entry by the Commissioner of Highways of such abandonment upon the records of the Department.

    History. Code 1950, § 33-76.12; 1950, p. 734; 1952, c. 127; 1970, c. 322, § 33.1-155; 2011, cc. 36, 152; 2014, c. 805.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    Procedure under this section and under § 33.1-151 distinguished. —

    The General Assembly intended by this section and § 33.1-151 to specify two procedures available to the governing bodies in abandoning roads in the secondary highway system. The underlying purpose of the two sections appears to rest in the construction of a new road under the alternative procedure provided in this section, whereas the more complicated procedure provided by § 33.1-151 makes no provision for the construction of a new road in lieu of the abandoned road. Hudson v. AMOCO, 152 F. Supp. 757, 1957 U.S. Dist. LEXIS 3462 (D. Va. 1957), aff'd, 253 F.2d 27, 1958 U.S. App. LEXIS 3818 (4th Cir. 1958).

    When abandonment proceedings are undertaken under this section, the construction of a new road in lieu of the old which serves the same citizens as the old road is contemplated. The more complex procedure provided for in § 33.1-151 is not predicated upon, nor does it require, construction of a new road in lieu of the abandoned road. When a new road is constructed, the county board is not required to adopt the procedure provided for in § 33.1-151 but may act under this section. AMOCO v. Leaman, 199 Va. 637 , 101 S.E.2d 540, 1958 Va. LEXIS 109 (1958) (commented on in 44 Va. L. Rev. 628 (1958)).

    Discontinuance and abandonment are not the same thing. Ord v. Fugate, 207 Va. 752 , 152 S.E.2d 54, 1967 Va. LEXIS 132 (1967).

    The phrase “a new road which serves the same citizens as the old road” is to be liberally construed and a wide discretion must be accorded the board in its determination to abandon or alter a road, otherwise the purpose of this section, enacted for the benefit of the public, would be impaired or defeated. AMOCO v. Leaman, 199 Va. 637 , 101 S.E.2d 540, 1958 Va. LEXIS 109 (1958) (commented on in 44 Va. L. Rev. 628 (1958)).

    The wording of this section providing for a new road “which serves the same citizens as the old road” must be liberally construed to permit discretionary action by the board. Hudson v. AMOCO, 152 F. Supp. 757, 1957 U.S. Dist. LEXIS 3462 (D. Va. 1957), aff'd, 253 F.2d 27, 1958 U.S. App. LEXIS 3818 (4th Cir. 1958).

    Essential findings. —

    This section makes no provision for a finding that some “public utility” or “public interest” must be served by any abandonment or vacation. The essential findings are: (1) that the road be altered; (2) that a new road be constructed in lieu thereof; (3) that the new road serve the same citizens as the old road; and (4) that approval of the State Highway Commissioner (now Commonwealth Transportation Commissioner) be obtained. Hudson v. AMOCO, 152 F. Supp. 757, 1957 U.S. Dist. LEXIS 3462 (D. Va. 1957), aff'd, 253 F.2d 27, 1958 U.S. App. LEXIS 3818 (4th Cir. 1958).

    Review of action of county board. —

    The General Assembly made no provision for an appeal to a court from the county board’s findings and action under this section. In the absence of such a provision the Supreme Court of Appeals may not review the board’s action in the absence of fraud or manifest abuse of discretion. AMOCO v. Leaman, 199 Va. 637 , 101 S.E.2d 540, 1958 Va. LEXIS 109 (1958) (commented on in 44 Va. L. Rev. 628 (1958)).

    As the General Assembly made no provision for an appeal to any court, from the resolution of the county board of supervisors making such a finding that a new road will “serve the same citizens as the old road,” it must be assumed that courts were not intended to review such findings in the absence of fraud or manifest abuse of discretion. Hudson v. AMOCO, 152 F. Supp. 757, 1957 U.S. Dist. LEXIS 3462 (D. Va. 1957), aff'd, 253 F.2d 27, 1958 U.S. App. LEXIS 3818 (4th Cir. 1958).

    Weight of board’s finding that new road will serve same citizens as old. —

    When the road to be altered or abandoned is not a way of necessity and does not abut the property of an objector but is reached by traveling over or across another public road that abuts the objector’s property, a finding by the board that the new road serves the same citizens as the old road may not be successfully challenged in the absence of fraud or flagrant hardship evidencing abuse of discretion by the board. AMOCO v. Leaman, 199 Va. 637 , 101 S.E.2d 540, 1958 Va. LEXIS 109 (1958) (commented on in 44 Va. L. Rev. 628 (1958)).

    Ultimate exclusive use of abandoned highway may be for private interest. —

    A highway may be lawfully abandoned when another and more adequate highway serving the same citizens as the old road is constructed, although the ultimate exclusive use of the abandoned highway may be for a private interest. Hudson v. AMOCO, 152 F. Supp. 757, 1957 U.S. Dist. LEXIS 3462 (D. Va. 1957), aff'd, 253 F.2d 27, 1958 U.S. App. LEXIS 3818 (4th Cir. 1958).

    Complainants were not in the class of citizens who were being “served” by an abandoned secondary road where they had access to it only by way of a private road easement, not a way of necessity, and also had access to another secondary road. Hudson v. AMOCO, 152 F. Supp. 757, 1957 U.S. Dist. LEXIS 3462 (D. Va. 1957), aff'd, 253 F.2d 27, 1958 U.S. App. LEXIS 3818 (4th Cir. 1958).

    A secondary route was legally abandoned and a primary route altered, improved and relocated as permitted by and in accordance with the provisions of this section. AMOCO v. Leaman, 199 Va. 637 , 101 S.E.2d 540, 1958 Va. LEXIS 109 (1958) (commented on in 44 Va. L. Rev. 628 (1958)).

    § 33.2-913. Conveying sections of highways, landings, or other property no longer necessary.

    1. Whenever a secondary highway or landing has been abandoned in accordance with the provisions of § 33.2-909 or 33.2-910 or in accordance with § 33.2-912 and its use is no longer deemed necessary by the Commissioner of Highways, the Commissioner of Highways shall so certify in writing to the governing body of the county in which such highway or landing is located, and the governing body of the county or the Commissioner of Highways shall then be authorized to execute, in the name of the Commonwealth or the county, a deed or deeds conveying such section or sections of highway or such landing, either for consideration or in exchange for other lands that may be necessary for the uses of the secondary state highway system. Before any such deed either for the sale or exchange of land is executed conveying any section of a highway or landing along which any person resides, notice shall be given by the Commissioner of Highways or the governing body of the county and to the owner or owners of the land upon which such person resides of the intention to convey the section of highway or the landing and if after a reasonable notice of such intention any such landowner so requests, a hearing shall be ordered by the Commissioner of Highways or governing body of the county as provided in this article. If upon such hearing it is determined that such section of highway or landing should be kept open for the reasonable convenience of such landowner or the public, then such section of highway or landing shall not be conveyed.Any such conveyance by the governing body of a county shall not be subject to § 15.2-1800 .
    2. When real estate acquired by the Commonwealth incidental to the construction, reconstruction, alteration, maintenance, and repair of the secondary state highway system does not constitute a section of a public highway and is deemed by the Commissioner of Highways no longer necessary for the uses of the secondary state highway system, the Commissioner of Highways shall so certify in writing and is authorized to execute in the name of the Commonwealth a deed or deeds conveying such real estate, interest therein, or any portion thereof, either for consideration or in exchange for other lands that may be necessary for the uses of the secondary state highway system.
    3. Upon petition of a local governing body, the Board may transfer real estate acquired incidental to the construction, reconstruction, alteration, maintenance, or repair of the secondary state highway system that constitutes a section of public highway to the local governing body, and upon such transfer, such section of highway shall cease being a part of the secondary state highway system.Any such conveyance shall be subject to approval of the Board by resolution and recorded in the minutes of the Board.

    History. Code 1950, § 33-76.11; 1950, p. 733; 1956, c. 106; 1970, c. 322, § 33.1-154; 1981, c. 323; 2002, c. 445; 2011, cc. 36, 152; 2014, c. 805.

    Article 3. Abandonment of Roads Not in Primary or Secondary State Highway System.

    § 33.2-914. County roads not part of primary or secondary state highway system; definitions.

    1. The provisions of this article shall apply mutatis mutandis to county roads maintained by a county and not part of the secondary state highway system and to roads dedicated to public use but that are not part of the primary or secondary state highway system.
    2. For the purposes of this article:“Governing body” means the governing body of a county.“Road” includes streets and alleys dedicated to public use and any existing crossing by the lines of a railroad company of such road and a railroad crossing by such road of the lines of a railroad company.

    History. Code 1950, § 33-76.13; 1950, p. 734; 1970, c. 322, § 33.1-156; 2014, c. 805.

    § 33.2-915. Abandonment of certain roads and railroad crossings by governing body.

    1. When a section of a road not in the secondary state highway system, or an existing crossing by such road of the lines of a railroad company or a crossing by the lines of a railroad company of such road, is deemed by the governing body in which it is located to be no longer necessary for public use, the governing body may abandon such section of the road or such crossing by proceeding as prescribed in this article.
    2. In considering the abandonment of any section of road under the provisions of this section, due consideration shall be given to the historic value, if any, of such road.

    History. Code 1950, § 33-76.14; 1950, p. 734; 1970, c. 322, § 33.1-157; 1978, c. 616; 1980, c. 39; 2014, c. 805.

    CASE NOTES

    Abandonment proper. —

    Circuit court properly sustained the decision of a county board of supervisors to abandon a portion of the road because the decision was not arbitrary or capricious since the board considered the facts and the law; the board reviewed the history of the road, cited relevant Code provisions, and noted that the road had not been extended, did not connect to a road for public passage, and ended at a cul-de-sac bounded by a gate. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    County lawfully abandoned a segment of a road because it could elect to proceed under the abandonment provisions found in Title 33.2 of the Virginia Code. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    Factors. —

    Future convenience might militate in favor of the continuance of a road, but that convenience must be weighed alongside the detriment of increased congestion in a residential subdivision and the prospect of still more congestion in the future. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    Circuit court properly sustained the decision of a county board of supervisors to abandon a portion of the road because the “road” was not an actual road the public could use for travel, residents’ worries were relevant to the board’s decision, professional engineers testified that the extension of the road would create safety issues, and the county presented evidence that the studies undercounted potential traffic. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    OPINIONS OF THE ATTORNEY GENERAL

    Abandonment of bridge. —

    The county may abandon a bridge that is neither in the State Highway System nor the secondary highway system if the bridge is no longer necessary or if abandonment would serve the public interest. Upon such abandonment, the bridge’s ownership normally will revert to the owner of the underlying fee, if any such owner exists. If the county owns the fee, it lawfully may convey the bridge property to a private party in exchange for consideration by either a public or private sale, and, such consideration may include the county’s making of a monetary payment to the purchaser. Whether the county would retain liability following its abandonment of a bridge needing repair or replacement would depend on specific facts existing at the time of occurrence of injury or damage. See opinion of Attorney General to the Honorable Phillip P. Puckett, Member, Senate of Virginia, 12-114, 2013 Va. AG LEXIS 67 (8/2/13) (decided under prior law).

    § 33.2-916. Notice of proposed abandonment.

    In the case of a proposed abandonment of a road not part of the primary or secondary state highway system, the governing body shall give at least 30 days’ notice of its intention to do so by posting notice at the front door of the courthouse, by posting notices on at least three places along and visible from the road proposed to be abandoned, and by publishing notice in at least two issues in a newspaper having general circulation in the county. All such notices shall state the time and place at which the governing body will meet to consider the abandonment of such road.

    History. Code 1950, § 33-76.15; 1950, p. 734; 1970, c. 322, § 33.1-158; 2014, c. 805.

    § 33.2-917. Petition for abandonment.

    Any person desiring to have a road abandoned may petition the governing body to abandon such road by filing the petition and a reasonably accurate plat and description of the section proposed to be abandoned with the governing body and in the clerk’s office of the county. The governing body may proceed to have such road abandoned as provided in this article, but the expenses shall be borne by the petitioner.

    History. Code 1950, § 33-76.16; 1950, p. 735; 1970, c. 322, § 33.1-159; 2014, c. 805.

    Cross references.

    As to fee for processing petitions for abandonment, see § 15.2-743 .

    § 33.2-918. Petition for public hearing on proposed abandonment.

    If one or more landowners affected by a proposed abandonment file a petition for a public hearing with the governing body within 30 days after notice is posted and published, the governing body shall hold a public hearing in the county for the consideration of the proposed abandonment.

    History. Code 1950, § 33-76.17; 1950, p. 735; 1970, c. 322, § 33.1-160; 2014, c. 805.

    § 33.2-919. Action of governing body.

    If a petition for a public hearing is not filed as provided in § 33.2-918 , or if after a public hearing is held the governing body is satisfied that no public necessity exists for the continuance of the section of road as a public road or the railroad crossing as a public railroad crossing or that the welfare of the public would be served best by abandoning the section of road or the railroad crossing as a public road or public railroad crossing, the governing body shall (i) within four months of the 30-day period during which notice was posted where no petition for a public hearing was filed or (ii) within four months after the public hearing adopt an ordinance or resolution abandoning the section of road as a public road or the railroad crossing as a public railroad crossing, and with that ordinance or resolution the section of road shall cease to be a public road. If the governing body is not so satisfied, it shall dismiss the application within the applicable four months provided in this section.

    History. Code 1950, § 33-76.18; 1950, p. 735; 1970, c. 322, § 33.1-161; 1978, c. 187; 2014, c. 805.

    CASE NOTES

    Factors. —

    Future convenience might militate in favor of the continuance of a road, but that convenience must be weighed alongside the detriment of increased congestion in a residential subdivision and the prospect of still more congestion in the future. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    Abandonment proper. —

    Circuit court properly sustained the decision of a county board of supervisors to abandon a portion of the road because the “road” was not an actual road the public could use for travel, residents’ worries were relevant to the board’s decision, professional engineers testified that the extension of the road would create safety issues, and the county presented evidence that the studies undercounted potential traffic. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    Circuit court properly sustained the decision of a county board of supervisors to abandon a portion of the road because the decision was not arbitrary or capricious since the board considered the facts and the law; the board reviewed the history of the road, cited relevant Code provisions, and noted that the road had not been extended, did not connect to a road for public passage, and ended at a cul-de-sac bounded by a gate. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    OPINIONS OF THE ATTORNEY GENERAL

    Abandonment of bridge. —

    The county may abandon a bridge that is neither in the State Highway System nor the secondary highway system if the bridge is no longer necessary or if abandonment would serve the public interest. Upon such abandonment, the bridge’s ownership normally will revert to the owner of the underlying fee, if any such owner exists. If the county owns the fee, it lawfully may convey the bridge property to a private party in exchange for consideration by either a public or private sale, and, such consideration may include the county’s making of a monetary payment to the purchaser. Whether the county would retain liability following its abandonment of a bridge needing repair or replacement would depend on specific facts existing at the time of occurrence of injury or damage. See opinion of Attorney General to the Honorable Phillip P. Puckett, Member, Senate of Virginia, 12-114, 2013 Va. AG LEXIS 67 (8/2/13) (decided under prior law).

    § 33.2-920. Appeal to circuit court.

    Any one or more of the landowners who filed a petition or the governing body may within 30 days from the action of the governing body on the proposal appeal from the action of the governing body to the circuit court of the county. Where the governing body fails to adopt an ordinance or resolution pursuant to § 33.2-919 , such person named in this section shall within 30 days from such failure have a right of appeal to the appropriate circuit court. Such appeal shall be filed by petition in the clerk’s office of such court, setting out the action or inaction appealed from and the grounds for appeal. Upon the filing of such petition, the clerk of the circuit court shall docket the appeal, giving it a preferred status, and if the appeal is by any of the landowners who filed a petition with the governing body for a public hearing, notice of such appeal shall be served upon the attorney for the Commonwealth and the governing body. No such appeal shall be tried by the court within 10 days after notice is given as provided in this section unless such notice is waived. The circuit court shall hear the matter de novo with further right of appeal as provided by law. The court may appoint viewers to make such investigation and findings as the court requires of them. Upon the hearing of the appeal, the court shall ascertain and by its order determine whether public necessity exists for the continuance of the section of road or the railroad crossing as a public road or public railroad crossing or whether the welfare of the public will be served best by abandoning the section of the road or the railroad crossing as a public road or public railroad crossing and shall enter its order accordingly.

    Upon any such appeal, if it appears to the court that by the abandonment of such section of road or such railroad crossing as a public road or public railroad crossing any party to such appeal would be deprived of access to a public road, the court may cause the railroad company and the governing body, or either, to be made parties to the proceedings, if not already parties, and may enter such orders as seem just and proper for keeping open such section of road or such railroad crossing for the benefit of such party or parties.

    History. Code 1950, § 33-76.19; 1950, p. 735; 1970, c. 322, § 33.1-162; 1978, c. 187; 2014, c. 805.

    CASE NOTES

    Construction. —

    Use of the word “or” indicates a legislative intent to allow a road to be abandoned either if no public necessity exists for the continuance of the section of road or if the welfare of the public will be served best by abandoning the section of the road. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    De novo review proper. —

    Circuit court properly exercised its de novo review of the decision of a county board of supervisors to abandon a portion of a road and correctly sustained that decision because it was not arbitrary or capricious since the board considered the facts and the law; the board reviewed the history of the road, cited relevant Code provisions, and noted that the road had not been extended, did not connect to a road for public passage, and ended at a cul-de-sac bounded by a gate. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    § 33.2-921. Effect of abandonment.

    In the case of the abandonment of any section of road or any railroad crossing under the provisions of this article, such section of road or such crossing shall cease to be a public road or public railroad crossing. However, any such abandonment shall be subject to the rights of owners of any public utility installations that have been previously erected therein.

    History. Code 1950, § 33-76.20; 1950, p. 736; 1970, c. 322, § 33.1-163; 1986, c. 12; 2014, c. 805.

    OPINIONS OF THE ATTORNEY GENERAL

    Abandonment of bridge. —

    The county may abandon a bridge that is neither in the State Highway System nor the secondary highway system if the bridge is no longer necessary or if abandonment would serve the public interest. Upon such abandonment, the bridge’s ownership normally will revert to the owner of the underlying fee, if any such owner exists. If the county owns the fee, it lawfully may convey the bridge property to a private party in exchange for consideration by either a public or private sale, and, such consideration may include the county’s making of a monetary payment to the purchaser. Whether the county would retain liability following its abandonment of a bridge needing repair or replacement would depend on specific facts existing at the time of occurrence of injury or damage. See opinion of Attorney General to the Honorable Phillip P. Puckett, Member, Senate of Virginia, 12-114, 2013 Va. AG LEXIS 67 (8/2/13) (decided under prior law).

    § 33.2-922. Recordation of abandonment of roads, highways, or railroad crossings by counties.

    A certified copy of any ordinance, resolution, or order abandoning a road, highway, or railroad crossing by a county adopted pursuant to Article 2 (§ 33.2-908 et seq.) or this article shall be recorded and indexed in the deed book in the name of the county as grantor or where record title to the underlying fee is not known shall be recorded in the office of the clerk of court in the county where such road, highway, or railroad crossing is located in the name of the county adopting such ordinance or resolution or entering such order.

    History. 1986, c. 631, § 33.1-163.1; 2014, c. 805.

    § 33.2-923. Alternative procedure for abandonment of old road or crossing to extent of alteration.

    When any road or any road containing a highway-rail grade crossing has been or is altered and a new road that serves the same users as the old road is constructed as a replacement and approved by the governing body, the old road or public crossing may be abandoned to the extent of such alteration, but no further, by an ordinance or resolution of the governing body declaring the old road or public crossing abandoned.

    History. Code 1950, § 33-76.21; 1950, p. 736; 1952, c. 123; 1970, c. 322, § 33.1-164; 2014, c. 805.

    § 33.2-924. Conveying sections of roads or other property no longer necessary.

    When any road abandoned as provided in this article is deemed by the governing body no longer necessary for the public use, the governing body shall so certify in its minutes and may authorize the sale and conveyance in the name of the county of a deed or deeds conveying such sections, either for consideration or in exchange for other lands that may be necessary for the uses of the county. However, before any such deed either for the sale or exchange of land is executed conveying any section of a road along which any person resides, the governing body shall give notice to the owner of the land upon which such person resides of the intention to convey the section of road, and if after a reasonable notice of such intention any such landowner so requests, the governing body shall order a hearing. If upon such hearing it is determined that such section of road should be kept open for the reasonable convenience of such landowner or the public, then such section of road shall not be conveyed. The action of the governing body under this section shall not be subject to § 15.2-1800 .

    History. Code 1950, § 33-76.22; 1950, p. 736; 1970, c. 322, § 33.1-165; 2014, c. 805.

    OPINIONS OF THE ATTORNEY GENERAL

    Abandonment of bridge. —

    The county may abandon a bridge that is neither in the State Highway System nor the secondary highway system if the bridge is no longer necessary or if abandonment would serve the public interest. Upon such abandonment, the bridge’s ownership normally will revert to the owner of the underlying fee, if any such owner exists. If the county owns the fee, it lawfully may convey the bridge property to a private party in exchange for consideration by either a public or private sale, and, such consideration may include the county’s making of a monetary payment to the purchaser. Whether the county would retain liability following its abandonment of a bridge needing repair or replacement would depend on specific facts existing at the time of occurrence of injury or damage. See opinion of Attorney General to the Honorable Phillip P. Puckett, Member, Senate of Virginia, 12-114, 2013 Va. AG LEXIS 67 (8/2/13) (decided under prior law).

    § 33.2-925. Alternative method of abandoning roads.

    As an alternative to the procedure for abandonment prescribed by this article, a road may be abandoned in accordance with the procedure for vacations in subdivision 2 of § 15.2-2272 . All abandonments of roads sought to be effected according to subsection (b) of former § 15.1-482 before July 1, 1990, are hereby validated notwithstanding any defects or deficiencies in the proceeding, provided that property rights that have vested subsequent to the attempted abandonment are not impaired by such validation. The manner of reversion shall not be affected by this section.

    History. 1990, c. 198, § 33.1-166.1; 2014, c. 805.

    CASE NOTES

    Abandonment of road. —

    Subsection F of § 15.2-2261 cannot be the exclusive way to abandon a road; the General Assembly expressly provided that the procedures can be employed in the alternative, at the option of the locality, and the courts are not at liberty to ignore this statutory language. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    County lawfully abandoned a segment of a road because it could elect to proceed under the abandonment provisions found in Title 33.2 of the Virginia Code. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

    § 33.2-926. Chapter 20 of Title 15.2 not affected.

    No provision of Articles 1 (§ 33.2-900 et seq.), 2 (§ 33.2-908 et seq.), or this article shall affect the provisions of Chapter 20 (§ 15.2-2000 et seq.) of Title 15.2.

    History. Code 1950, § 33-76.24; 1950, p. 737; 1970, c. 322, § 33.1-167; 2014, c. 805.

    Article 4. Abandonment of Highways for Flooding Secondary Highways in Connection with Municipal Water Supply Projects.

    § 33.2-927. Abandonment of highway in area to be flooded in connection with municipal water supply projects.

    When a city or town that owns and operates a waterworks system that supplies the city or town and its inhabitants with water finds it necessary to increase its water supply such that it requires impounding the water of a stream outside the corporate limits of such city or town by means of a dam erected in such stream and the impounding of the water thereof would result in the overflow, or flooding, of a section or sections of a highway or highways within the secondary state highway system that necessitates the alteration and relocation of the highway or highways and the governing body of the city or town by ordinance declares (i) such necessity and (ii) that it is the intention of such city or town to comply with the requirements of this article, then the highway proposed to be flooded may be discontinued and abandoned but only after the city or town has complied with the provisions and requirements of this article.

    History. Code 1950, § 33-82; 1970, c. 322, § 33.1-168; 2014, c. 805.

    § 33.2-928. Procedure to secure abandonment of highways to be flooded in connection with municipal water supply projects.

    A city or town subject to the provisions of this article shall certify to the governing body of the county within which the highway, or the greater part thereof, lies a copy of the ordinance adopted by the city or town as provided in this article. The governing body of the county, upon receipt, shall within 30 days (i) consider the reasonableness of the action contemplated by the city or town ordinance, (ii) propose and publish an ordinance approving or disapproving the action contemplated by the city or town, and (iii) conduct a hearing thereon. In the event that after such hearing the governing body of the county disapproves the proposed flooding, discontinuance, and abandonment of the highway, the city or town shall have the right to an appeal to the circuit court of the county where the question of the reasonableness of the proposed flooding and abandonment shall be heard de novo by the circuit court and judgment shall be rendered according to its decision. The judgment of the circuit court may be appealed to the Court of Appeals.

    History. Code 1950, § 33-83; 1970, c. 322, § 33.1-169; 2014, c. 805; 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, rewrote the last sentence, which read: “From the judgment a writ of error will lie in the discretion of the Supreme Court of Virginia.”

    § 33.2-929. Plans for relocation of highways in connection with municipal water supply projects.

    If there is a final approval of the abandonment of the highway by the governing body of the county or by the court, the city or town shall, solely at its own expense, submit to the Commissioner of Highways plans and specifications for a proposed relocation of the highway, containing such information and facts as a location, elevations, and other matters the Commissioner of Highways may require. The Commissioner of Highways shall have the power to change, alter, and amend the plans in order to conform to the views of the Commissioner of Highways as to the location, width, and type of construction of such highway to be built on the new location, provided that the new highway is located such that it will not be flooded by the water to be impounded, and provided further that the Commissioner of Highways may not require a more expensive type or character of highway than the one to be abandoned. The Commissioner of Highways shall approve such plans and specifications either as proposed by the city or town or as amended by the Commissioner of Highways.

    History. Code 1950, § 33-84; 1970, c. 322, § 33.1-170; 2014, c. 805.

    § 33.2-930. Acquisition of lands for relocation.

    Upon the approval of plans and specifications by the Commissioner of Highways, the city or town shall, solely at its own expense and in the name of the Commonwealth, acquire either by purchase or condemnation the right-of-way necessary to construct the highway on the new location as shown by the plans approved by the Commissioner of Highways. In the event of condemnation, the proceedings shall be instituted in the name of the city or town and shall conform to the proceedings that would be applicable if they had been instituted by the Commissioner of Highways. However, when the award has been paid, the title to the lands acquired in the proceedings shall vest in the Commonwealth in the same manner as if the Commissioner of Highways had instituted and conducted the proceedings and had paid the award.

    History. Code 1950, § 33-85; 1970, c. 322, § 33.1-171; 2014, c. 805.

    § 33.2-931. Costs of relocation.

    The city or town shall pay out of its own funds all costs incident to all surveys, plans, specifications, blueprints, or other matters relating to the relocation of the highway and the entire cost of acquiring, by purchase or by condemnation, the right-of-way.

    History. Code 1950, § 33-86; 1970, c. 322, § 33.1-172; 2014, c. 805.

    § 33.2-932. Construction of relocated highway.

    Upon the acquisition of a right-of-way as provided in this article, the city or town shall grade such right-of-way and construct the highway required, in accordance with the plans and specifications approved by the Commissioner of Highways.

    History. Code 1950, § 33-87; 1970, c. 322, § 33.1-173; 2014, c. 805.

    § 33.2-933. Approval or disapproval of construction.

    When a highway is completed, the city or town shall notify the Commissioner of Highways, who shall promptly cause an inspection to be made by the Department. If the Department approves the highway construction, the Commissioner of Highways shall notify the city or town in writing of such fact. If the Department disapproves the highway construction, it shall notify the city or town, specifying the Department’s objections and recommendations for remedying or removing them, and the city or town shall promptly carry out such recommendations.

    History. Code 1950, § 33-88; 1970, c. 322, § 33.1-174; 2014, c. 805.

    § 33.2-934. New highway part of secondary state highway system; former highway to vest in city or town.

    When the city or town has been notified by the Commissioner of Highways of final approval of the construction of the highway, such highway shall immediately become a part of the secondary state highway system, and the public shall be vested with the same rights of travel on such highway as it possesses with respect to the other highways in the system. The part of the highway that it is proposed to flood shall be deemed to be abandoned, and all public rights therein shall vest in the city or town.

    History. Code 1950, § 33-89; 1970, c. 322, § 33.1-175; 2014, c. 805.

    Chapter 10. Eminent Domain.

    Article 1. Eminent Domain and Damages.

    § 33.2-1000. Definitions.

    As used in this article, unless the context requires a different meaning:

    “Certificate” means an instrument that, when recorded in the office of the clerk of the circuit court wherein condemnation proceedings are pending or are to be instituted by the Commissioner of Highways, terminates the interest or estate of the owner of the property described therein and vests defeasible title to such property or interest or estate of the owner in the Commonwealth. “Certificate” includes a certificate of deposit and a certificate of take.

    “Certificate of deposit” means a certificate issued by the Commissioner of Highways and countersigned by the State Treasurer, stating that any sum or sums designated therein shall be paid pursuant to the order of the court, and filed by the Commissioner of Highways with the court wherein condemnation proceedings are pending or are to be instituted in lieu of the payment of funds into court, as provided in subdivision A 2 of § 33.2-1019 .

    “Certificate of take” means a certificate recorded by the Commissioner of Highways with the court wherein condemnation proceedings are pending or are to be instituted, in connection with which the Commissioner of Highways has deposited funds with the court as provided in subdivision A 1 of § 33.2-1019 .

    “Owner” means any person owning land, buildings, structures, or improvements upon land where such ownership is of record in the land records of the clerk’s office of the circuit court of the city or county where the property is located. “Owner” does not include trustees or beneficiaries under a deed of trust, any person with a security interest in the property, or any person with a judgment or lien against the property. In proceedings instituted by the Commissioner of Highways under Title 25.1 or this title, “owner” includes persons owning structures or improvements for which an outdoor advertising permit has been issued by the Commissioner of Highways pursuant to § 33.2-1208 . This definition of owner shall not alter in any way the valuation of such land, buildings, structures, or improvements under existing law.

    “Public highway” means a highway, road, or street. When applicable, “public highway” includes a bridge, ferry, causeway, landing, or wharf.

    History. 2014, c. 805.

    Research References.

    Virginia Forms (Matthew Bender). No. 6-404 Certificate of Take; No. 6-405 Certificate of Take - Another Form; No. 6-406 Petition for Condemnation by County for Roadway.

    § 33.2-1001. Power to acquire lands, etc.; conveyance to municipality after acquisition; property owners to be informed and briefed.

    1. The Commissioner of Highways is vested with the power to acquire by purchase, gift, or power of eminent domain such lands, structures, rights-of-way, franchises, easements, and other interest in lands, including lands under water and riparian rights, of any person, association, partnership, corporation, or municipality or political subdivision, deemed necessary for the construction, reconstruction, alteration, maintenance, and repair of the public highways of the Commonwealth and for these purposes and all other purposes incidental thereto may condemn property in fee simple and rights-of-way of such width and on such routes and grades and locations as the Commissioner of Highways may deem requisite and suitable, including locations for permanent, temporary, continuous, periodical, or future use and rights or easements incidental thereto and lands, quarries, and locations, with rights of ingress and egress, containing gravel, clay, sand, stone, rock, timber, and any other road materials deemed useful or necessary in carrying out the purposes of this subsection.
    2. The Commissioner of Highways is authorized to exercise the power provided under subsection A within municipalities on projects that are constructed with state or federal participation if requested by the municipality concerned. Whenever the Commissioner of Highways has acquired property pursuant to a request of the municipality, he shall convey the title so acquired to the municipality, except that rights-of-way or easements acquired for the relocation of a railroad, public utility company, or public service corporation or company, another political subdivision, or a cable television company in connection with such projects shall be conveyed to that entity in accordance with § 33.2-1014 . The authority for such conveyance shall apply to acquisitions made by the Commissioner of Highways pursuant to previous requests as well as any subsequent request.
    3. Any offer by the Commissioner of Highways to a property owner with respect to payment of compensation for the prospective taking of property and damage to property not taken incident to the purposes of this section shall separately state (i) the property to be taken and the amount of compensation offered therefor and (ii) the nature of the prospective damage or damages and the amount of compensation offered for each such prospective damage. The amount of the offer shall not be less than the amount of the approved appraisal of the fair market value of such property, in accordance with the provisions of § 25.1-417 , or the current assessed value of such property for real estate tax purposes, unless the property has physically changed in a material and substantial way since the current assessment date such that the real estate tax assessment no longer represents a fair valuation of the property, when the entire parcel for which the assessment is made is to be acquired, whichever is greater. Any such appraisal used by the Commissioner of Highways as the basis for an offer shall be prepared by a real estate appraiser licensed in accordance with Chapter 20.1 (§ 54.1-2009 et seq.) of Title 54.1.
    4. The Commissioner of Highways shall also provide to a property owner a copy of any report of status of title prepared in connection with such acquisition if prepared pursuant to subsection D of § 25.1-204 .
    5. In negotiating with a property owner with respect to payment for prospective damage to property not taken incident to the purposes of this section, the Commissioner of Highways shall ensure that such property owner or his authorized representative is properly informed as to the type and amount of foreseeable damage or enhancement. Adequate briefing includes (i) the giving of plats and profiles of the project, showing cuts and fills, together with elevations and grades and (ii) explanation, in lay terms, of all proposed changes in profile, elevation, and grade of the highway and entrances, including the elevations of proposed pavement and shoulders, both center and edges, with relation to the present pavement and approximate grade of entrances to the property.
    6. Any option or deed executed by the property owner shall contain a statement that the plans as they affect his property have been fully explained. However, the requirements of this section with respect to information and briefing and the acknowledgment thereof in options and deeds shall in no way be construed to affect the validity of any conveyance, to create any right to compensation, or to limit the authority of the Commissioner of Highways to reasonably control the use of public highways so as to promote the public health, safety, and welfare.
    7. Nothing in this section shall make evidence of tax assessments admissible as proof of value in an eminent domain proceeding.

    History. Code 1950, § 33-57; 1956, c. 152; 1966, c. 65; 1968, c. 700; 1970, c. 322, § 33.1-89; 1976, c. 430; 1993, c. 67; 1999, c. 88; 2000, c. 1029; 2002, c. 878; 2003, c. 940; 2013, c. 764; 2014, c. 805.

    Editor’s note.

    Acts 2000, cc. 370 and 452, c. 1 provide: “Notwithstanding any provision of Article 7 ( § 33.1-89 et seq.) of Chapter 1 of Title 33.1 of the Code of Virginia, the Commonwealth Transportation Commissioner [now Commissioner of Highways] shall not exercise the power of eminent domain to acquire any portion of the property of an existing commercial establishment or any interest therein if the sole purpose of such acquisition is to control or limit access to commercial establishments located within 300 feet of any segment of the interstate highway system, except to the extent necessary to meet minimum federal requirements in order for the Commonwealth to be eligible to receive federal funds for interstate highway construction.

    “At those interstate highway interchange locations where the value of land, buildings, and improvements within 300 feet of an interstate ramp terminal has a fair market value of $1 million or more, the Commonwealth Transportation Board shall designate those interchanges as ‘urban,’ provided such designation does not conflict with any federal statute or regulation.”

    Law Review.

    For Washington & Lee Law Alumni Association Student Notes Colloquium, “If a Tree Falls in a Roadway, Is Anyone Liable?: Proposing the Duty of Reasonable Care for Virginia’s Road-Maintaining Entities,” see 76 Wash & Lee L. Rev. 509 (2019).

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under prior law.

    The Commissioner can condemn property only for a public purpose and he cannot ordinarily take the land of one property owner for the sole purpose of constructing a road for the private use of another. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    Whether a taking for a road is for a public purpose is a judicial question, reviewable by the courts. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    But necessity or expediency of road is legislative question. —

    Where the public purpose is established, the necessity or expediency of a road is a legislative question which has been delegated to the Commission (now Board). Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    A determination by the State Highway and Transportation Commission (now Commonwealth Transportation Board) as to the location of, and the necessity for, a road is the exercise of a legislative power, which has been delegated to the Commission (now Board). Its discretion in exercising this power is reviewable by the courts only if it is arbitrarily or capriciously exercised or where there is manifest fraud. State Hwy. & Transp. Comm'r v. Herndon, 225 Va. 380 , 302 S.E.2d 55, 1983 Va. LEXIS 233 (1983).

    Official determining location of road may exercise large discretion. —

    The public official or body charged with the duty of determining the location of a public road ordinarily may exercise a large discretion. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    Which is reviewable only if arbitrarily, capriciously or fraudulently exercised. —

    The discretion for determining the location of a public road is reviewable by the courts only if it is arbitrarily or capriciously exercised or where there is manifest fraud. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    Hearing is not essential to due process. —

    A hearing on determining the location of a public road is not essential to due process under the federal and state Constitutions. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    Road is public if it is free in common to all citizens. —

    Whether a road sought to be constructed is a public road or one merely for the benefit of a private individual is not tested by the fact that such an individual will receive a greater benefit than the public generally. The test is not the length of the road, or how many actually use it, but how many have the free and unrestricted right in common to use it. It is a public road if it is free in common to all citizens. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    Service road parallel to limited access highway is public road. —

    The Commission (now Board) is authorized by § 33.1-61 to construct service roads to replace the access roads taken for the construction of limited access highways. Such roads are for a public purpose, and the Commissioner may condemn land for their construction. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156, 1972 Va. LEXIS 241 (1972).

    The Rules of Court do not apply to eminent domain proceedings. Hornback v. State Hwy. Comm'r, 205 Va. 50 , 135 S.E.2d 136, 1964 Va. LEXIS 144 (1964).

    Proceedings for condemnation. —

    Defendant insurer was entitled to receive moneys from eminent domain proceedings brought pursuant to subsection A of § 33.1-89 and § 33.1-98, and deposited with the Fairfax County Circuit Court, and to apply them to its attorney fees, because the parties’ deed of trust explicitly stated that plaintiff insured assigned such proceeds in full and insurer could apply them as it saw fit. Breton, LLC v. Lincoln Nat'l Life Ins. Co., 805 F. Supp. 2d 251, 2011 U.S. Dist. LEXIS 93448 (E.D. Va. 2011).

    In a condemnation proceeding initiated by the Commissioner of Highways, the trial court erred by excluding the testimony of the commissioner’s expert because it unleveled the playing field; the trial court allowed the landowner’s expert to opine on the necessity of the relocation of improvements to avoid functional obsolescence and barred the commissioner’s expert from establishing that there was a “net zero” difference in the value contribution of the improvements before or after the take. Comm'r of Hwys v. Karverly, Inc., 295 Va. 380 , 813 S.E.2d 322, 2018 Va. LEXIS 53 (2018).

    Necessity for condemnation not reviewable. —

    Under this statute the Commissioner may determine the necessity for the condemnation, and his decision as to such necessity is not subject to review by the courts. State Hwy. Comm'r v. Kreger, 128 Va. 203 , 105 S.E. 217 , 1920 Va. LEXIS 101 (1920); State Hwy. Comm'r v. Yorktown Ice & Storage Corp., 152 Va. 559 , 147 S.E. 239 , 1929 Va. LEXIS 191 (1929); Prichard v. State Hwy. Comm'r, 167 Va. 219 , 188 S.E. 166 , 1936 Va. LEXIS 296 (1936).

    Title acquired. —

    District court did not err in concluding that the Commonwealth acquired all the property described in the condemnation petition, without reservation of the alleged easement, because the description of the property in the petition and in the state highway commissioners’ report did not reference such an easement. Agape Motorcoach Retreat, LLC v. Brintle, 523 Fed. Appx. 948, 2013 U.S. App. LEXIS 8409 (4th Cir. 2013).

    A landowner is not entitled to show how many appraisals of the property were secured by the Commissioner in a trial of eminent domain proceedings. Hornback v. State Hwy. Comm'r, 205 Va. 50 , 135 S.E.2d 136, 1964 Va. LEXIS 144 (1964).

    Neither may he compel production of reports of all appraisers. —

    A landowner, in eminent domain proceedings, may not compel, through the use of a summons issued and served pursuant to former § 8-324, the production in court of the written reports of all appraisers who evaluated the property for the Commissioner. Hornback v. State Hwy. Comm'r, 205 Va. 50 , 135 S.E.2d 136, 1964 Va. LEXIS 144 (1964).

    Nor may he compel disclosure of identities and evaluations of such appraisers. —

    A landowner, in eminent domain proceedings brought by the Commissioner may not compel, through the use of interrogatories issued and served pursuant to former § 8-320, the disclosure of the names, addresses and evaluations of the appraisers employed by the Commissioner. Hornback v. State Hwy. Comm'r, 205 Va. 50 , 135 S.E.2d 136, 1964 Va. LEXIS 144 (1964).

    Damages caused by tortious acts. —

    The Commissioner is without authority to institute condemnation proceedings to determine damages caused by the tortious acts of his agents. Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597, 1954 Va. LEXIS 144 (1954).

    CIRCUIT COURT OPINIONS

    Jurisdiction. —

    Circuit court found that it did have subject matter jurisdiction over a case because the Virginia Department of Transportation was utilizing its eminent domain authority under § 25.1-109 , in tandem with Va. Const. art. 1, § 11 and § 33.2-1001 , to condemn property for the purpose of wetlands mitigation. Comm'r of Highway v. Lockhart, 106 Va. Cir. 31, 2020 Va. Cir. LEXIS 156 (Buchanan County Aug. 17, 2020).

    Construction easement. —

    Plaintiffs were not entitled to declaratory or injunctive relief because, while some of them had standing to object to a city’s decision to grant a construction easement to the department of transportation (VDOT) over a portion of a public park, the conveyance was not within the category of evils considered by the framers of the constitution inasmuch as the ordinance at issue did not authorize a sale of the property, the city could have constructed the portion of the road on its own by a simple majority vote of the council, and VDOT could have acquired the easement by eminent domain. Coalition to Preserve McIntire Park v. City of Charlottesville, 97 Va. Cir. 364, 2009 Va. Cir. LEXIS 2084 (Charlottesville June 26, 2009), dismissed, 97 Va. Cir. 364, 2009 Va. Cir. LEXIS 2083 (Charlottesville July 18, 2009).

    § 33.2-1002. Limitation on power of eminent domain.

    No property that is within an agricultural and forestal district as provided by the Agricultural and Forestal Districts Act (§ 15.2-4300 et seq.) shall be condemned by the Commissioner of Highways except in accordance with § 15.2-4313 .

    History. 1977, c. 681, § 33.1-89.1; 2014, c. 805.

    § 33.2-1003. Additional power to acquire lands.

    The Commissioner of Highways may use the powers granted in this title to acquire needed property interests for purposes set out in Article 5 (§ 33.2-281 et seq.) of Chapter 2.

    History. 1992, c. 167, § 33.1-89.2; 2014, c. 805.

    § 33.2-1004. Plans for acquisition of rights-of-way.

    Subject to compliance with applicable federal regulations, the Commissioner of Highways shall establish a plan for identification and acquisition of rights-of-way that may be needed within the corridors designated on the Statewide Transportation Plan.

    History. 2013, cc. 585, 646, § 33.1-89.3; 2014, c. 805.

    § 33.2-1005. Acquisition of real property that may be needed for transportation projects; sale of certain real property.

    1. When the Commissioner of Highways determines that any real property will be required in connection with the construction of a transportation project, or project as defined in § 33.2-1700 , within a period not exceeding 12 years for the Interstate System or 10 years for any other highway system or transportation project from the time of such determination, and that it would be advantageous to the Commonwealth to acquire such real property, he may proceed to do so. The Commissioner of Highways may lease any real property so acquired to the owner from whom such real property is acquired, if requested by him, and, if not so requested, to another person upon such terms and conditions as in the judgment of the Commissioner of Highways may be in the public interest. If the transportation project contemplated, or project as defined in § 33.2-1700 , has not been let to contract or construction has not commenced within a period of 20 years from the date of the acquisition of such property, and a need for the use of such property has not been determined for any alternative transportation project, then upon written demand of the owner, or his heirs or assigns, that is received (i) within 90 days from the expiration of such 20-year period or such extension as provided for in this section or (ii) within 30 days from publication of a notice of the intent of the Commissioner of Highways to dispose of such property in a newspaper of general circulation in the political subdivision in which the property is located and the Commissioner of Highways shall notify to the extent practical, the last known owner of said property by certified mail, that such property shall be reconveyed by the Commonwealth to such owner, or his heirs or assigns, upon repayment of the original purchase price, without interest. If the reconveyance is not concluded within six months from receipt by the Commissioner of Highways of a written demand, the reconveyance opportunity shall lapse. However, the 20-year limit established by this section within which the Department must let to contract or begin construction in order to avoid reconveyance shall be extended by the number of days of delay caused by litigation involving the project or by the failure of the Commonwealth to receive anticipated federal funds for such project. The 20-year limit may also be extended in those instances in which a project is included in the Six-Year Improvement Program of the Board or the Six-Year Improvement Program for secondary highways prepared by the county boards of supervisors and in which steps have been taken to move forward. No such reconveyance shall be required for rights-of-way acquired for future transportation improvements at the request of local governing bodies or for rights-of-way acquired for state construction designed to provide future additional lanes or other enhancements to existing transportation facilities.
    2. If any real property acquired under this article for use in connection with a transportation project is subsequently offered for sale by the Department and such property is suitable for independent development, the Department shall offer the property for sale at fair market value to the owner from whom it was acquired before such property is offered for sale to any other person. The Commissioner of Highways shall notify, to the extent practicable, the last known owner of such property by certified mail, and the owner shall have 30 days from the date of such notice to advise the Commissioner of Highways of his interest in purchasing the property. If the purchase of the property by the owner from whom it was acquired is not concluded within six months from receipt by the Commissioner of Highways of a written notice, the purchase opportunity shall lapse. The provisions of this subsection shall apply only to property to which the provisions of subsection A do not apply.
    3. Subsection B shall not apply to Department projects carried out in cooperation with the United States Army Corps of Engineers as part of a nonstructural flood control project. If property acquired by the Commonwealth under this article in connection with a project is no longer needed by the Commonwealth for such project, such property shall be conveyed to the locality in which such project is located and used in connection with the redevelopment. If such property is not used for economic development, then the property shall revert to the Commonwealth and may be used for any purposes deemed appropriate, including resale.

    History. Code 1950, § 33-57.1; 1958, c. 345; 1964, c. 261; 1970, cc. 110, 322, § 33.1-90; 1972, c. 396; 1973, c. 430; 1983, c. 146; 1988, c. 80; 1992, c. 108; 1997, c. 93; 1998, c. 426; 2000, c. 998; 2014, c. 805.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    Grantor of property acquires a possibility of reverter. —

    Under a former version of § 33.1-90, the Virginia General Assembly intended to grant to a property owner a contingent right to reconveyance of property acquired by the Commonwealth of Virginia in anticipation of its need for a public highway project if the property so acquired was not ultimately used for that purpose; accordingly, a corporation that made such a conveyance to the Commonwealth in 1973 was granted an interest in that property in the form of a possibility of reverter. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Reconveyance of property to grantor’s successor was required. —

    Virginia Commissioner of Transportation was properly ordered to reconvey to a successor corporation at its original purchase price property that was acquired by the Commonwealth of Virginia by advance acquisition from the successor’s predecessor in 1973 but that was no longer needed for a transportation purpose; amendments made in § 33.1-90 after the original transfer applied to the predecessor’s possibility of reverter, the right to demand reconveyance ripened when the Commonwealth offered the property for public sale in 2004, the successor’s president was the proper entity to demand reconveyance, and his demand was timely under § 33.1-90. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Statutory amendments apply to grantor’s possibility of reverter. —

    Until a possibility of reverter retained by a corporation that conveyed property to the Commonwealth of Virginia in 1973 under a former version of this section vested into an enforceable right, the contingencies upon which it depended and the procedures for exercising the right accrued remained subject to modification by future amendment, including extending the period of time before the right could accrue and establishing periods of limitation on enforcing the right, so long as such amendments did not fully extinguish the corporation’s possibility of reverter; amendments made to former § 33.1-90 in 1983 and 1997, before the corporation’s possibility of reverter became an enforceable right, therefore, amended the corporation’s possibility of reverter. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Procedures for demanding reconveyance remain subject to amendment. —

    When there has been a breach of a condition subsequent on which a possibility of reverter created by an advance acquisition depends, the fee vested in the Commonwealth of Virginia by the original transfer does not automatically revest in the grantor, who must make a written demand under § 33.1-90 to exercise the right to reconveyance; therefore, until 1999 or later when a successor corporation first demanded reconveyance of such property transferred by a predecessor under the version of 33.1-90 in effect in 1973, the Commonwealth remained vested with title to the property, and the contingencies and procedures for making the demand for reconveyance remained subject to change by amendment of § 33.1-90. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Notice provision not dependent on prior timely demand. —

    Requirement in § 33.1-90 that the Virginia Commissioner of Transportation must give notice of an intended sale of property acquired by advance acquisition that is no longer needed for a transportation project and must make a bona fide effort to locate the transferor’s heirs and assigns, and a corresponding requirement that a demand for reconveyance must be made within 30 days thereafter are stated in the disjunctive and, thus, are not dependent upon a prior timely demand having been made by the former owner within 90 days from the expiration of the 20-year designated timeframe. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Other statutes of limitation are superseded. —

    In determining whether a successor corporation’s claim for reconveyance of land conveyed to the Commonwealth of Virginia by a predecessor was timely, a trial court improperly relied upon §§ 8.01-248 and 8.01-246(4) , and § 8.01-255.1 , applicable to actions for re-entry upon land for breach of conditions subsequent, was also inapplicable; these provisions were superseded by the more specific time limitations of § 33.1-90, which has a comprehensive and broad scope that in effect contains its own statute of limitations. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Complaint for declaratory judgment was timely demand for reconveyance. —

    1999 inquiry by a successor corporation’s president about reconveyance of property conveyed to the Commonwealth of Virginia by a predecessor corporation under a former version of this section was not timely under the 90-day requirement as it was then in effect, and the Virginia Transportation Commissioner was statutorily entitled to refuse it, but when the Commissioner offered the property for public sale in 2004, the alternative procedure then in effect for exercising the right to demand reconveyance became operative; publication of the notice of intent to sell triggered a 30-day time period in which the successor could demand reconveyance, and a declaratory judgment action filed by the successor within that time period constituted substantial compliance with the requirement for a written demand. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Successor corporation properly demanded reconveyance of property conveyed by predecessor. —

    Possibility of reverter acquired by a predecessor corporation when it conveyed property to the Commonwealth of Virginia for road use in 1973 was a corporate asset when the predecessor was later dissolved; as trustee of the assets of the dissolved predecessor, its president, who became the president of a successor corporation, was the proper party to make demand on the Virginia Transportation Commissioner for reconveyance of the property, and the successor’s subsequent declaratory judgment action was properly filed in the successor’s name pursuant to § 13.1-745 . Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    § 33.2-1006. Reconveyance where property deemed suitable for mass transit purposes.

    If any real property that, under the provisions of § 33.2-1005 , is or may become eligible for reconveyance is deemed suitable for the mass transit purposes of a public agency, authority, instrumentality, or public service corporation or company, and such entity has submitted tentative plans to the Commissioner of Highways for a mass transit facility utilizing such real property, or portions thereof, and, prior to the eligibility of that real property for reconveyance under this article, the Commissioner of Highways has approved the use of such real property for mass transit purposes, such real estate shall not be eligible for reconveyance under those sections. Upon the formulation of final plans for the facility, the Commissioner of Highways is authorized to enter into an agreement with any such entity for the conveyance of the property to such entity. Any property or portions thereof not necessary for the mass transit facility shall become eligible for reconveyance under the provisions of § 33.2-1005 upon a determination of the final plans for the facility. Such agreement shall provide for the payment to the Commonwealth of an amount equal to that expended by the Commonwealth in the acquisition of such real property, including proportionate administrative costs and costs under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. Upon payment of the agreed consideration, the Commissioner of Highways shall convey the specified property to the facility. However, if construction of such planned facilities is not commenced within 10 years from the date of the agreement between the transit agency and the Commissioner of Highways, the persons who would otherwise have been authorized to petition for reconveyance under § 33.2-1005 or their heirs or assigns may seek reconveyance under the same procedures and on the same basis as established in § 33.2-1005 .

    This section shall not compel the Commissioner of Highways to convey any such property to such entities in contravention of any federal law or regulation affecting the disposition of real property acquired for highway purposes when such property is no longer needed for such purposes when such property has been acquired with federal funding participation.

    History. 1976, c. 724, § 33.1-90.2; 1992, c. 108; 2014, c. 805.

    § 33.2-1007. Authority to acquire entire tract of land, or parcel thereof, when only part to be utilized for highway purposes.

    In acquiring rights-of-way for highway construction, reconstruction, or improvement, and lands incidental to such construction, reconstruction, or improvement, the Commissioner of Highways is authorized and empowered, whenever a portion of a tract of land is to be utilized for right-of-way or a purpose incidental to the construction, reconstruction, or improvement of a public highway, to acquire by purchase, gift, or the exercise of the power of eminent domain the entire tract of land or any part thereof whenever (i) the remainder of such tract or part thereof can no longer be utilized for the purpose for which the entire tract is then being utilized; (ii) a portion of a building is to be taken; (iii) the cost of removal or relocation of the buildings or other improvements on the remaining portion necessitated by the taking would exceed the cost of destroying such buildings or other improvements; (iv) the highway project will leave the remaining portions without a means of access to a public highway; or (v) in the judgment of the Commissioner of Highways the resulting damages to the remainder of such tract or part thereof lying outside the proposed right-of-way, or the area being acquired for a purpose incidental to the construction, reconstruction, or improvement of a public highway, will approximate or equal the fair market value of such remaining lands. However, the Commissioner of Highways shall not acquire the remainder of such tracts by purchase where the remaining portion is in excess of 10 acres or by condemnation where the remaining portion is in excess of two acres. Nothing contained in this section shall be construed as preventing the Commissioner of Highways from complying, where applicable, with the provisions of § 25.1-417 .

    History. Code 1950, § 33-117.2; 1960, c. 546; 1964, c. 262; 1970, c. 322, § 33.1-91; 1973, c. 166; 2003, c. 940; 2014, c. 805.

    Cross references.

    As to condemnation proceedings by localities generally, see § 15.2-1902 .

    CASE NOTES

    Residue of owners’ tracts properly taken. —

    Where the city condemned the owners’ property for the purpose of improving the city’s transportation network, the city was also entitled to obtain the residue of the owners’ tracts because the city satisfied the requirements prescribed in § 33.1-91, which governed the taking of residual property; the residue of the owners’ former tracts was less than two acres and could no longer be utilized for the purpose for which the entire tract was then being utilized. Ottofaro v. City of Hampton, 265 Va. 26 , 574 S.E.2d 235, 2003 Va. LEXIS 3 (2003) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Constitutionality. —

    Statute granting a city the authority to acquire an entire tract so long as a portion of any improvement was within the acquisition area was constitutional in light of an amendment to Va. Const. art. I, § 11 because the statute’s scope and applicability was much narrower than that of the Takings Clause and the legislative intent in enacting the statute was not to frustrate the purpose of the Takings Clause, but to work and be read in conjunction with the clause. Allen v. City of Va. Beach, 100 Va. Cir. 299, 2018 Va. Cir. LEXIS 621 (Virginia Beach Nov. 8, 2018).

    § 33.2-1008. Authority to acquire land to replace parkland; applicability.

    For the purposes of this section, “parkland” only includes parks and recreational areas under the jurisdiction of state agencies or local governing bodies. Notwithstanding any contrary provision of this title, the Commissioner of Highways may acquire by gift or purchase any property without a permanent residential structure, or an interest in property, needed to replace parkland that is acquired for the improvement, maintenance, construction, or reconstruction of highways. Land acquired to replace parkland shall be abutting or appurtenant to the property of rights-of-way acquired for the improvement, maintenance, construction, or reconstruction of highways. Before exercising the authority granted by this section, the Commissioner of Highways shall notify the local governing body or state agency having jurisdiction over the parkland and shall obtain the concurrence of the local governing body or state agency that replacement parklands should be acquired and conveyed to the local governing body or state agency in exchange for the parkland needed for the improvement, maintenance, construction, or reconstruction of the highway.

    The provisions of this section shall apply only in Albemarle County and the City of Charlottesville.

    History. 2000, c. 310, § 33.1-91.1; 2014, c. 805.

    § 33.2-1009. Acquisition of residue parcels declared to be in public interest.

    The acquisition of such residue parcels in addition to the lands necessary for the immediate use for highway rights-of-way or purposes incidental to the construction, reconstruction, or improvement of public highways is hereby declared to be in the public interest and constitutes a public use as the term public uses is used in Article I, Section 11 of the Constitution of Virginia.

    History. Code 1950, § 33-117.3; 1960, c. 546; 1964, c. 262; 1970, c. 322, § 33.1-92; 1971, Ex. Sess., c. 1; 2014, c. 805.

    § 33.2-1010. Use and disposition of residue parcels of land.

    The Commissioner of Highways may lease, sell, or exchange such residue parcels of land upon such terms and conditions as in the judgment of the Commissioner of Highways may be in the public interest, provided, however, that the Commissioner of Highways shall not use such parcels for any commercial purpose. The Commissioner of Highways may lease, sell, or exchange such residue parcels of land as may have been acquired under the provisions of the Transportation Development and Revenue Bond Act (§ 33.2-1700 et seq.), upon such terms and conditions as in the judgment of the Commissioner of Highways may be in the public interest. The Commissioner of Highways may lease such parcels of land as may have been acquired under the provisions of § 33.2-1005 in the event the former owner fails to make the request authorized under § 33.2-1005 to persons other than the former owner, upon such terms and conditions as in the judgment of the Commissioner of Highways may be in the public interest. The provisions of Articles 1 (§ 33.2-900 et seq.) and 2 (§ 33.2-908 et seq.) of Chapter 9 shall not be construed to apply to the disposition of land authorized in this section.

    History. Code 1950, § 33-117.4; 1960, c. 546; 1970, c. 322, § 33.1-93; 2014, c. 805.

    § 33.2-1011. Right to enter on land to ascertain its suitability for highway and other transportation purposes; damage resulting from such entry.

    1. The Commissioner of Highways, through his duly authorized officers, agents, or employees, may enter upon any land in the Commonwealth for the purposes of making examination and survey thereof, including photographing; testing, including soil borings or testing for contamination; making appraisals; and taking such actions as may be necessary or desirable to determine its suitability for highway and other transportation purposes or for any other purpose incidental thereto. Such officers, agents, or servants shall exercise care to protect any improvements, growing crops, or timber in making such examination or survey. Such officers, agents, or servants may enter upon any property without the written permission of its owners if the Commissioner has requested the owner’s permission to inspect the property as provided in subsection B.
      1. A request for permission to inspect shall (i) be on the Commissioner’s official letterhead and signed by an authorized officer, agent, or employee of the Commissioner; (ii) be sent to the owner by certified mail, return receipt requested, delivered by guaranteed overnight courier, or otherwise delivered to the owner in person with proof of delivery; (iii) be made not less than 30 days prior to the first date of the proposed inspection; (iv) notify the owner that if permission is withheld, the Commissioner or his duly authorized officers, agents, or employees shall be permitted to enter the property on the date of the proposed inspection. A mere citation of this section number of the Code of Virginia shall not satisfy the requirements of clause (iv). A request for permission to inspect shall be deemed to be made on the date of mailing, if mailed, or otherwise on the date of delivery. B. 1. A request for permission to inspect shall (i) be on the Commissioner’s official letterhead and signed by an authorized officer, agent, or employee of the Commissioner; (ii) be sent to the owner by certified mail, return receipt requested, delivered by guaranteed overnight courier, or otherwise delivered to the owner in person with proof of delivery; (iii) be made not less than 30 days prior to the first date of the proposed inspection; (iv) notify the owner that if permission is withheld, the Commissioner or his duly authorized officers, agents, or employees shall be permitted to enter the property on the date of the proposed inspection. A mere citation of this section number of the Code of Virginia shall not satisfy the requirements of clause (iv). A request for permission to inspect shall be deemed to be made on the date of mailing, if mailed, or otherwise on the date of delivery.
      2. A request for permission to inspect shall include (i) the specific date or dates such inspection is proposed to be made; (ii) the name of the entity entering the property; (iii) the number of persons for whom permission is sought; (iv) the purpose for which entry is made; and (v) the testing, appraisals, or examinations to be performed and other actions to be taken.
      3. If a request for permission is provided in accordance with subdivision 1, the Commissioner or his duly authorized officer, agent, or employee may enter the property sooner than the 30 days indicated in the request only if the owner provides permission, in writing, to enter on an earlier date.
    2. Any entry authorized by this section (i) shall be for the purpose of making surveys, tests, appraisals, or examinations thereof in order to determine the suitability of such property for the project and (ii) shall not be deemed a trespass.
    3. The Commissioner shall make reimbursement for any actual damages resulting from entry upon the property. In any action filed under this section, the court may award the owner his reasonable (i) attorney fees, (ii) court costs, and (iii) fees for up to three experts or as many experts as are called by the condemnor, whichever is greater, who testified at trial if the court finds that the Commissioner damaged the owner’s property. A proceeding under this subsection shall not preclude the owner from pursuing any additional remedies available at law or equity.
    4. The requirements of this section shall not apply to the practice of land surveying, as defined in § 54.1-400 , when such surveying is not involved in any eminent domain or any proposed eminent domain matter.

    History. Code 1950, § 33-57.2; 1960, c. 491; 1970, c. 322, § 33.1-94; 2007, c. 755; 2011, c. 60; 2014, c. 805; 2019, c. 788; 2021, Sp. Sess. I, c. 60.

    Cross references.

    As to condemnation proceedings by localities generally, see § 15.2-1902 .

    Editor’s note.

    Acts 2019, c. 788, cl. 2 provides: “That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed, prior to July 1, 2019, (i) a petition in condemnation pursuant to Chapter 2 ( § 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Title 33.2 or Chapter 3 ( § 25.1-300 et seq.) of Title 25.1 of the Code of Virginia. Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) on or after July 1, 2005, and prior to July 1, 2019, shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2019.”

    The 2019 amendments.

    The 2019 amendment by c. 788 rewrote this section. For applicability, see Editor’s note.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendments by Sp. Sess. I, c. 60, effective July 1, 2021, in subsection A, deleted the clause (i) designation and clauses (ii) and (iii), which read “(ii) the owner’s written permission is not received prior to the date entry is proposed, and (iii) the petitioner has given the owner notice of intent to enter as provided in subsection C”; in subdivision B 1, inserted clauses (i) and (iv), in clause (iii), substituted “30 days prior” for “15 days prior,” and added the second sentence; added subdivision B 3; and deleted former subsection C relating to notice of intent to enter, how such notice may be effectuated, and the content of such notice; and made related changes.

    Research References.

    Virginia Forms (Matthew Bender). 6-404 Certificate of Take; 6-405 Certificate of Take — Another Form; No. 6-421 Restraining Order Against Defendant.

    CASE NOTES

    Suits to recover property damages. —

    Property owner’s claims that a contractor and subcontractor who were hired to work on a highway construction project for the Commonwealth of Virginia exceeded the scope of their authority under § 33.1-94 and caused damage to her land were properly brought in a tort suit rather than in a condemnation proceeding. Justus v. Kellogg Brown & Root Servs., 373 F. Supp. 2d 608, 2005 U.S. Dist. LEXIS 16443 (W.D. Va. 2005) (decided under prior law).

    Attorneys’ fees not authorized. —

    Property owner’s claim for attorneys’ fees in her suit alleging various tort claims, including trespass, against a contractor and subcontractor for exceeding their authority under § 33.1-94 was dismissed because the statute did not authorize attorneys’ fees. Justus v. Kellogg Brown & Root Servs., 373 F. Supp. 2d 608, 2005 U.S. Dist. LEXIS 16443 (W.D. Va. 2005) (decided under prior law).

    § 33.2-1012. Limitations in Title 25.1 not applicable to Commissioner of Highways.

    Except as to procedure, the Commissioner of Highways shall not be subject to any limitations in Title 25.1 in exercising the power of eminent domain pursuant to this title.

    History. Code 1950, § 33-57.3; 1964, Ex. Sess., c. 23; 1970, c. 322, § 33.1-95; 1972, c. 765; 2003, c. 940; 2014, c. 805.

    § 33.2-1013. Notice of exercise of eminent domain power; evidence of value.

    1. As used in this section:“Fair market value” means the price that the real property would bring if it were offered for sale by one who wanted to sell, but was under no necessity, and was bought by one who wanted to buy, but was under no necessity.“Owner” means any person owning an estate or interest in buildings, structures, or other improvements on real property, which estate or interest is recorded in the official records of the circuit court where the property is located, or improvements for which a permit has been issued by the Commissioner of Highways pursuant to § 33.2-1208 . “Owner” does not include trustees or beneficiaries under a deed of trust or any person owning only a security interest in the real property.
    2. Notwithstanding anything to the contrary contained in this chapter or in Chapter 2 (§ 25.1-200 et seq.) of Title 25.1:
      1. The Commissioner of Highways shall notify every owner, as defined in this section, of a building, structure, or other improvement if the Commissioner of Highways intends to exercise the power of eminent domain in a manner that would result in a taking of the building, structure, or other improvement.
      2. The owner of any such building, structure, or other improvement may present evidence of the fair market value of such building, structure, or other improvement in the proceedings described in § 25.1-233 , provided such owner has filed a petition for intervention pursuant to § 25.1-218 .
      3. If the owner of such building, structure, or improvement is different from the owner of the underlying land, then such owner shall not be allowed to proffer any evidence of value that the owner of the underlying land would not be permitted to proffer if the building, structure, or improvement were owned by the owner of the underlying land; and
      4. The provisions of this section shall not apply to condemnation proceedings in which the petition for condemnation was filed prior to July 1, 2000.

    History. 2000, cc. 822, 843, § 33.1-95.1; 2003, c. 940; 2014, c. 805.

    OPINIONS OF THE ATTORNEY GENERAL

    Outdoor advertising signs must be valued using fair market valuation. —

    The Commonwealth Transportation Commissioner is required to value outdoor advertising signs in eminent domain cases using the fair market valuation set forth in the statute. See opinion of Attorney General to The Honorable H. Morgan Griffith, Member, House of Delegates, 01-104 (12/20/01) (decided under prior law).

    § 33.2-1014. Acquisition of interests for exchange with railroad, public utility company, public service corporation or company, political subdivision, or cable television company; relocation of poles, lines, etc.

    Whenever any railroad, public utility company, public service corporation or company, political subdivision, or cable television company owns or occupies any privately owned land either under a claim of right or with the apparent acquiescence of the private landowner which the Commissioner of Highways deems necessary and intends to acquire for any highway project, and such land owned or occupied by the railroad, public utility company, public service corporation or company, political subdivision, or cable television company is devoted to a public use, the Commissioner of Highways may acquire by gift, purchase, or by the exercise of the power of eminent domain additional land or easement, right-of-way, or interest in land adjacent to or approximately adjacent to such land needed and proposed to be acquired for such highway project and may then convey the same to the railroad, public utility company, public service corporation or company, political subdivision, or cable television company for use by it in lieu of the land theretofore owned or occupied by it but needed by the Commissioner of Highways for such highway project. The condemnation of such land, easement, right-of-way, or other interest in land to be conveyed to any railroad, public utility company, public service corporation or company, political subdivision, or cable television company shall be governed by the procedure prescribed by this article and may be carried out at the same time if against the same property owner and if against the same landowner or in the same proceedings in which land is condemned for highway purposes. The Commissioner of Highways may, under the same procedure and conditions prescribed by this article, with respect to property needed for highway purposes, enter upon and take possession of such property to be conveyed to any railroad, public utility company, public service corporation or company, political subdivision, or cable television company in the manner provided in §§ 33.2-1018 through 33.2-1027 and proceed with the relocation of the installations of the railroad or public utility company in order that the construction of the highway project may be carried out without delay.

    After the acquisition of the land owned or occupied by railroads, public utility companies, public service corporations or companies, political subdivisions, or cable television companies and the acquisition of the additional land, easement, right-of-way, or other interest in land for such railroads, utility companies, public service corporations or companies, political subdivisions, or cable television companies as provided in this section, in the event the poles, lines, or other facilities are not removed by such railroads or utility companies within 60 days from the date of the taking by the Commissioner of Highways, the Commissioner of Highways is vested with the power to remove and relocate such facilities at his own cost.

    Any conveyance previously made by the Commissioner of Highways in exchange for land that was needed for a highway project is hereby declared to be valid and effective in all respects.

    History. Code 1950, § 33-58; 1960, c. 491; 1968, c. 227; 1970, c. 322, § 33.1-96; 1976, c. 380; 1990, c. 242; 2014, c. 805.

    Cross references.

    As to condemnation proceedings by localities generally, see § 15.2-1902 .

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under prior law.

    Cost of relocating facilities of a utility. —

    Sections 33.1-12 (5), 33.1-49, 33.1-50, 33.1-215, and 33.1-216 do not create an exception to the common-law rule, recognized in Virginia, imposing upon a utility the burden of relocating facilities at its own cost when it occupies highway property under mere licenses. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971).

    Installation licenses do not create interest in land. —

    Mere licenses, revocable at will, permitting installation of utility facilities, do not create an easement or other interest in land. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657, 1971 Va. LEXIS 260 (1971).

    Grist mill was not devoted to a public use, within the rule exempting such property from condemnation. Bailey v. Anderson, 182 Va. 70 , 27 S.E.2d 914, 1943 Va. LEXIS 135 (1943).

    § 33.2-1015. Acquisition of land in median of highways for public mass transit; disposition of such property.

    When acquiring land for the construction of highways with divided roadways, the Commissioner of Highways may, if he deems it necessary and appropriate, also acquire by gift, purchase, or by the exercise of the power of eminent domain as vested in him by § 33.2-1001