Code of Virginia

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Code of Virginia
Title 33.2. Highways and Other Surface Transportation Systems
Chapter 9. Abandonment and Discontinuance of Highways and Roads
11/27/2022

Article 2. Abandonment and Discontinuance of Highways in Secondary State Highway System.

§ 33.2-908. Discontinuance of highway, landing, or railroad crossing; procedure.

A. 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.

B. 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 These additional notice provisions shall not be required in cases where the section of highway to be discontinued has been replaced by a new highway serving the same users.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.

C. 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.

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.

§ 33.2-909. Abandonment of highway, landing, or railroad crossing; procedure.

A. 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.

B. 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.

C. 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.

D. 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.

E. 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.

F. 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.

G. 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.

H. No public landing shall be abandoned unless the Board of Wildlife Resources shall by resolution concur in such abandonment.

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.

§ 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.

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.

§ 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.

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.

Code 1950, § 33-76.12; 1950, p. 734; 1952, c. 127; 1970, c. 322, § 33.1-155; 2011, cc. 36, 152; 2014, c. 805.

§ 33.2-913. Conveying sections of highways, landings, or other property no longer necessary.

A. 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.

B. 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.

C. 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.

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.