Can a Virginia county walk away from a deteriorating bridge it owns by abandoning it and selling the property to a private party, including paying the buyer to take it?

Plain-English summary

Senator Phillip Puckett asked the AG about an idea Buchanan County had been exploring: dealing with aging county-owned bridges by abandoning them and selling the property to private parties who would continue to use them. Federal law (under 23 U.S.C. § 144 and 23 C.F.R. § 650.401 et seq.) requires the county to inspect all bridges in its road and bridge system. Inspection findings on a deteriorating bridge can trigger expensive repair or replacement obligations. To cut those costs, the Board of Supervisors wanted to take the bridges out of the county's inventory entirely.

The AG laid out the legal framework in four parts.

1. Abandonment. Va. Code §§ 33.1-156 through 33.1-167 (now in Title 33.2) authorize counties to abandon roads (and bridges therein) that are not part of the State Highway System or the secondary system. The threshold finding is that the road is "no longer necessary" for public use, or that abandonment serves the public interest. The procedure requires public notice, an opportunity for affected petitioners to request a hearing, and a determination by the governing body. The decision is appealable to circuit court, which can keep the road open if any appealing party would be left without access to a public road. Once abandoned, the segment "shall cease to be a public road," subject only to existing utility easements.

2. Effect on federal bridge inspection requirements. Federal law applies to bridges that are "essential to protect the safety of the traveling public" and that "allow for the efficient movement of people and goods." An abandoned bridge is neither. Lawful abandonment ends the county's federal inspection obligation.

3. Reversion and conveyance. The default rule, from Bond v. Green, is that on abandonment "the land used for that purpose immediately becomes discharged of the servitude and the absolute title and right of exclusive possession thereto reverts to the owner of the fee, without further action by the public or highway authorities." The fee is presumed to be in the abutting landowners (each owner gets to the center of the road). If the county happens to hold the fee itself (rather than just an easement), it may sell to a private party.

4. Consideration, including reverse payment. Va. Code § 33.1-165 requires the conveyance to be "either for a consideration or in exchange for other lands that may be necessary for the uses of the county." Virginia contract law defines consideration broadly. The AG saw no per se legal impediment to the county paying the buyer to take the bridge, where the county's "benefit" is shedding repair, replacement, and inspection costs and the buyer's "benefit" is owning the property. The opinion documents the rationale and suggests the county "should determine and document the consideration for, and the perceived benefits to the parties to the conveyance." It also confirms the county may choose between public and private sale; § 33.1-165 specifically governs and overrides the more general § 15.2-1800(B), which would otherwise require a public hearing and public-versus-private-sale analysis.

5. Liability. Whether the county retains tort liability after abandoning a deteriorating bridge is a fact-bound question. Possible factors: current bridge condition (possibly a nuisance), signage and barricading, the adequacy of disclosures to the buyer, foreseeable users, alternative access for affected landowners, and the buyer's repair capacity. The AG declined to opine on liability and pointed the county to its own attorney for case-by-case analysis.

The opinion is restrained on policy. It does not bless the practice of unloading bad bridges on private buyers; it simply confirms that the legal mechanics work if the county follows the procedure correctly and accepts the liability risks.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Title 33.1 was recodified into Title 33.2 (Highways and Other Surface Transportation Systems) in 2014. Section numbers cited here (§§ 33.1-156 et seq., § 33.1-165) now appear at §§ 33.2-908 through 33.2-921. The substantive procedure is similar; readers should verify current section numbers and language.

Common questions

What is a "non-system" road or bridge?
A road or bridge that is not part of either the State Highway System (primary system, § 33.1-25) or the secondary system of state highways (§ 33.1-67). Generally these are roads "maintained by a county" rather than VDOT. Most rural counties have a small inventory of these. They predate VDOT taking over most secondary maintenance in the 1930s, or they were added more recently as private bridge access points the county adopted.

Why would a county "pay" a private party to take a bridge?
Because the alternative is to keep paying for inspection, ad hoc repairs, and eventually a full replacement that could run into the millions. A modest cash payment to a private user (who might be the only person who uses the bridge anyway) plus full disclosure of the bridge's condition can transfer the risk and the long-term cost out of the county's hands. The AG noted that the county "should determine and document the consideration for, and the perceived benefits to the parties to the conveyance," which is a hint that this should not be casual.

What happens to residents whose only access is the bridge?
The abandonment statute has a built-in protection. Under § 33.1-163, the circuit court can order the road to remain open if any appealing party would be deprived of access to a public road. A landowner with no alternative access can block the abandonment.

Does the county still have to follow public-hearing rules under § 15.2-1800?
No. Section 33.1-165 explicitly says the action of the governing body "shall not be subject to § 15.2-1800." The road-abandonment statute's own notice and hearing procedure governs.

Could the county just walk away without selling?
The AG didn't address that. Abandonment by itself extinguishes the public-road status, and ownership reverts to the underlying fee owner (often the adjacent landowners). If the county does not hold the fee, it has nothing to sell. The abandonment alone may end the county's federal inspection obligation.

What if the bridge is in the State Highway System or the secondary system?
Different rules. Those bridges are owned and maintained by VDOT, not the county. A county can't unilaterally abandon a VDOT bridge. The AG explicitly limited the opinion to non-system bridges.

Background and statutory framework

The road-abandonment procedure (Va. Code §§ 33.1-156 through 33.1-167):

• § 33.1-157: governing body may abandon a non-system road no longer needed for public use.
• § 33.1-161: standard for abandonment (no public necessity, or public interest served).
• § 33.1-162: appeal to circuit court.
• § 33.1-163: circuit court can keep road open if appealing party would lose access to a public road.
• § 33.1-165: conveyance authority; consideration or land exchange.
• § 33.1-166.1: alternative abandonment procedure.

The reversion rule comes from Bond v. Green: easement abandonment returns title to the fee owner automatically. A 1984 AG opinion confirms that the county lacks power to sell unless it owns the underlying fee. Counties hold fee title to road property only in specific circumstances; most county roads are easements over privately-owned fee.

The federal layer (23 U.S.C. § 144 and 23 C.F.R. § 650.401 et seq.) controls inventory and inspection of public bridges. Lawful abandonment ends a bridge's status as a public bridge and ends the federal inspection mandate.

Citations

• Va. Code §§ 33.1-156 through 33.1-167
• Va. Code § 15.2-1800
• 23 U.S.C. § 144
• 23 C.F.R. § 650.401 et seq.
• Bond v. Green, 189 Va. 23, 52 S.E.2d 169 (1948)
• Hughes v. Cole, 251 Va. 3, 465 S.E.2d 820 (1996)
• Smith v. Mountjoy, 280 Va. 46, 694 S.E.2d 598 (2010)
• 1984 Op. Va. Att'y Gen. 145
• 2010 Op. Va. Att'y Gen. 56

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-114_Puckett.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

August 2, 2013

The Honorable Phillip P. Puckett
Member, Senate of Virginia
Post Office Box 924
Tazewell, Virginia 24651-0924

Dear Senator Puckett:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You present several questions regarding abandonment and conveyance of county bridges. First, you ask whether Buchanan County ("the County") lawfully may abandon bridges that are in need of repair or replacement, and whether the County would retain liability after such abandonment. You further ask whether, under § 33.1-165 of the Code of Virginia, a sale of such a bridge to one or more private parties who intend to continue to use it would meet the statutory consideration requirement. In particular, you ask whether the County would fulfill the statutory consideration requirement if it made a monetary payment to the private purchasers of such a bridge at the time of conveyance. Finally, you ask whether § 33.1-165 contemplates a private or public sale of such a bridge.

Response

It is my opinion that 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. It further is my opinion that upon such abandonment, the bridge's ownership normally will revert to the owner of the underlying fee, if any such owner exists. In addition, it is my opinion that 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 that such consideration may include the County's making of a monetary payment to the purchaser. Finally, I am unable to opine whether the County would retain liability following its abandonment of a bridge needing repair or replacement, as such determination of liability would depend on specific facts existing at the time of occurrence of injury or damage.

Background

You relate that the Federal Highway Administration has required the County to inspect all bridges within the County's road and bridge system pursuant to the National Bridge Inspection Standards.[1] To reduce costs to county residents, the Buchanan County Board of Supervisors ("Board") is exploring the abandonment of bridges in need of repair or replacement to reduce costs. Once abandonment occurs, the County plans to consider conveyance of the bridges to private parties.

Applicable Law and Discussion

Article 12, Chapter 1, of Title 33.1 of the Code of Virginia[2] sets forth procedures for localities to pursue the abandonment of county roads, which by inference would include bridges thereof, that are not part of the State Highway System or the secondary system.[3] The governing body of a county may abandon a section of road that is not part of the State Highway System or the secondary system if such road is deemed no longer necessary for public use by the governing body.[4] After a notification process that allows petitioners to request public hearing, the governing body may abandon the road if it finds either that no public necessity exists or that the public interest would be served best by abandonment.[5] The determination may be appealed to the circuit court of the county by any petitioner or the governing body of the locality.[6] The circuit court may order the road to remain open if any appealing party would be deprived of access to a public road.[7] As a result of an abandonment, the road segment "shall cease to be a public road ... subject to the rights of owners of any public utility installations which have been previously erected therein."[8]

You report that the federal authorities have required compliance with mandates applicable to the inspection and evaluation of the structural integrity of bridges.[9] As your request implies, a lawfully abandoned bridge no longer would be subject to such requirements, as it would neither be "essential to protect the safety of the traveling public," nor needed to "allow for the efficient movement of people and goods on which the economy of the United States relies."[10]

Should the Board abandon a section of road pursuant to §§ 33.1-157 or 33.1-166.1, it may convey the County's ownership interest in it.[11] Note, however, that if the County's interest is an easement originally acquired by condemnation or dedication of land for use as a public highway, then

the land used for that purpose immediately becomes discharged of the servitude and the absolute title and right of exclusive possession thereto reverts to the owner of the fee, without further action by the public or highway authorities. In the absence of evidence to the contrary, the fee is presumed to be in the abutting land owners. If the highway is the boundary line between different tracts, the presumption is that the reversion to each owner is to the center of the highway.[12]

In the event the County owns the underlying fee, it may sell the property without limitation as to the buyer, subject to the procedural due process limitations provided by law.[13]

As to the conditions for such conveyance, you inquire regarding the adequacy of consideration and, specifically, whether the County may "pay a relatively small monetary payment ... to the grantee(s) in light that the bridge is in a defective condition at the time of conveyance." You additionally note that "[f]ull disclosure would be made to the grantee(s) with the understanding that the conveyance would relieve the County of repair and/or replacement costs along with future inspection costs."[14] The statute requires only that the "sale or conveyance ... [be] either for a consideration or in exchange for other lands that may be necessary for the uses of the county." Virginia law broadly defines contractual consideration, and it generally may be termed "as 'the ... motive ... or impelling influence which induces a contracting party to enter into a contract,'" or "as the 'reason or material cause of a contract.'"[16] Thus, while the County should determine and document the consideration for, and the perceived benefits to the parties to the conveyance, I find no per se legal impediment to the County making a monetary payment to the purchaser of the fee in the abandoned road segment containing the bridge structure.

With respect to whether the conveyance may be a public or private sale, § 33.1-165 neither specifies nor places limitation upon the nature of the conveyance transaction. It does state that the action of the governing body "shall not be subject to § 15.2-1800." The latter statute, at subsection B, generally sets forth a locality's responsibility with respect to the sale of real property, and permits the disposal of such realty by public or private sale after public hearing.[17] Because the terms of § 33.1-165 specifically address the sale of abandoned roadway segments, as opposed to the more general provisions of § 15.2-1800(B), I conclude that the County may use its discretion to determine whether a public or private sale would be most beneficial for the County, and that it need not conduct any public hearing beyond that required by the terms of § 33.1-165.[18]

Finally, based upon the specific facts at hand, I must decline to offer an opinion as to what, if any, liability may arise when a bridge in need of repair or replacement is abandoned.[19] Any assessment of potential liability would be based on the particular facts presented in each proposed abandonment including, without limitation, such factors as the current condition of the bridge (including whether it may constitute a nuisance), the appropriate signage or barricading to be placed upon the bridge structure, the language and adequacy of disclosures to the persons to whom the bridge property is conveyed, the identification of foreseeable potential users of the abandoned bridge, how such persons' access to public roads might be affected by the abandonment, the means and abilities of individual property owners to repair and maintain the bridge, and the location of the bridge relative to population centers. The assessment of such factors should be undertaken by the County and its attorney on a case-by-case basis.

Conclusion

Accordingly, it is my opinion that the County may abandon a bridge that is neither in the State Highway System nor the secondary highway system if the bridge no longer is necessary or if abandonment would serve the public interest. It further is my opinion that upon such abandonment, the bridge's ownership normally will revert to the owner of the underlying fee, if any such owner exists. In addition, it is my opinion that 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 that such consideration may include the County's making a monetary payment to the purchaser. Finally, I am unable to opine whether the County would retain liability following its abandonment of a bridge needing repair or replacement, as such determination of liability would depend on specific facts existing at the time of occurrence of injury or damage.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] Your inquiry cited former 23 U.S.C. § 151, which Congress repealed by Act July 6, 2012, P.L. 112-141, Div. A, Title I, Subtitle E, § 1519(b)(1)(A), 126 Stat. 575, effective 10/1/2012. Nevertheless, 23 U.S.C. § 144, entitled "National bridge and tunnel inventory and inspection standards," sets forth requirements relating to the inventory and inspection of bridges throughout the country, and for the development by the states of corrective action plans for the rehabilitation of structurally deficient bridges. See also 23 CFR 650.401, et seq. (setting forth regulations pertaining to these federal statutory mandates).

[2] Va. Code Ann. §§ 33.1-156 through 33.1-167 (2011).

[3] The roadways comprising the "State Highway System, sometimes referred to as the primary system of state highways" and the "secondary system of state highways" are respectively defined at § 33.1-25 and § 33.1-67. The bridges to which you refer for purposes of your inquiry are located upon "county roads," generally defined as those "maintained by a county and not part of the secondary system, and ... not parts of the State Highway System[.]"

[4] Va. Code Ann. § 33.1-157 (2011).

[5] Section 33.1-161 (2011).

[6] Section 33.1-162 (2011).

[7] Id.

[8] Section 33.1-163 (2011).

[9] See 23 U.S.C. § 144(b), (d) and (h). See also 23 CFR § 650.401, et seq.

[10] 23 U.S.C. § 144(a)(1)(A); see Va. Code Ann. § 33.1-163 (2011).

[11] Section 33.1-165 (2011) provides in part that "When any road abandoned as above provided is deemed by the governing body no longer necessary for the public use, it shall so certify such facts upon its minutes and it may authorize the sale and conveyance in the name of the county a deed or deeds conveying such sections, either for a consideration or in exchange for other lands that may be necessary for the uses of the county[.]" This enabling authority is subject to a prescribed notice requirement to adjacent landowners, and the further requirement of a hearing before the governing body if such a landowner requests it. Should it therein "appear 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[.]" Id. See also § 33.1-157 et seq.

[12] Bond v. Green, 189 Va. 23, 32, 52 S.E.2d 169, 173 (1948). See also 1984 Op. Va. Att'y Gen. 145, 147 ("[U]nless the county owns the underlying fee, the board of supervisors is ordinarily without power to sell and convey the land pursuant to § 33.1-165 ... Only when the county owns the underlying fee would it have the power to sell and convey the land that was once part of the abandoned roadway.").

[13] Section 33.1-165 (2011).

[14] I make no comment herein upon the wisdom of a local policy to abandon, then convey to private parties, county road bridges that are in need of structural repair or replacement. This opinion relates only to the specific legal issues about which you inquire.

[15] Id.

[16] Hughes v. Cole, 251 Va. 3, 13-14, 465 S.E.2d 820, 827 (1996) (favorably quoting Black's Law Dictionary 306 (6th ed. 1990)). See Smith v. Mountjoy, 280 Va. 46, 53, 694 S.E.2d 598, 602 (2010) ("Consideration is, in effect, the price bargained for and paid for a promise. It may be in the form of a benefit to the party promising or a detriment to the party to whom the promise is made.") (Virginia citations omitted); Alexakis v. Mallios, 261 Va. 425, 430, 544 S.E.2d 650, 654 (2001) ("A promise to forebear the exercise of a legal right is adequate consideration to support a contract." (Virginia citation omitted)). See also discussion Atlantic & Danville R'wy Co. v. Hooker, 194 Va. 496, 510-11, 74 S.E.2d 270, 280 (1953).

[17] Section 15.2-1800 provides that "... any locality may sell, at public or private sale, exchange, lease as lessor, mortgage, pledge, subordinate interest in or otherwise dispose of its real property ... provided that no such real property, whether improved or unimproved, shall be disposed of until the governing body has held a public hearing concerning such disposal."

[18] "[E]stablished principles of statutory construction require that 'when one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails.'" Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Va. Nat'l Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979)).

[19] The Attorney General "refrain[s] from commenting on matters that would require additional facts[.]" 2010 Op. Va. Att'y Gen. 56, 58.