Can a Virginia county pay to fix up a private subdivision road so VDOT will adopt it, even though a covenant on the property bans using public funds on the road?

Plain-English summary

The Valley Heights subdivision in Russell County had a private road that needed repair. The county Board of Supervisors wanted to get the road repaired up to state standards so VDOT would accept it into the secondary system, shifting future maintenance off the county's books. But a restrictive covenant on the property forbade the use of public funds to improve the road. Senator Phillip Puckett asked the AG how the county could navigate the situation.

The AG split the answer into a statutory mechanics part and a covenant-removal part.

Statutory mechanics. Va. Code § 33.1-72.1 is the path for adding streets to the secondary system. The county may recommend the addition in writing to VDOT, which then accepts the street if certain conditions are met. The road must have:

• A minimum dedicated width of 40 feet, or 30 feet under extenuating circumstances at the Commissioner of Highways' determination.
• Easements conforming to the Commonwealth Transportation Board's drainage policy.
• All required permits.
• Satisfaction of any outstanding fees, charges, or financial obligations (or provision for their satisfaction by bond or other means).

Section 33.1-72.1(F) authorizes the county to fund the necessary improvements using general county funds, rural addition funds, or private funds. The Board may decide which funding source to use. The AG recommended that Russell County, its attorney, and VDOT review § 33.1-72.1 together "in light of the specific private property rights involved."

Restrictive covenant. The covenant prohibited the use of public funds on the road. Whether the covenant blocks the project depends on a long list of facts the AG could not assess: who holds enforcement rights under the covenant, whether there's a homeowners' association, who owns the road itself, what other covenants run with the property, and so on. The AG declined to opine on those particulars.

But the AG offered the county a backup option: eminent domain. Section 15.1-1901 grants localities the power of eminent domain. Procedures are at §§ 25.1-200 through 25.1-251, with county-specific procedures at § 15.2-1905. The right to condemn includes the right to condemn covenants. In Minner v. City of Lynchburg (1963), the Supreme Court of Virginia held that the City of Lynchburg could not violate a no-roads covenant by building a road, but expressly said the city "may acquire this right by eminent domain." The county would have to pay just compensation, of course, under Va. Const. art. I, § 11 and Va. Code § 25.1-230. But for a road project benefiting the public, condemning the covenant could be the cleanest path forward.

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 in 2014. The cited § 33.1-72.1 now appears, with renumbering, in Title 33.2's secondary-system acceptance provisions.

Common questions

Why would a county want to put a private road into the state system?
To shift maintenance and capital cost off the county and onto VDOT. Once a road is in the secondary system, VDOT pays for the snow plowing, resurfacing, pothole patching, signage, and any future bridge work. For rural counties with limited road budgets, getting a subdivision road into the state system is often the only realistic path to long-term maintenance.

What are "rural addition funds"?
A subset of VDOT's secondary system construction allocation, earmarked for bringing previously private rural roads up to state standards so they can be accepted. There are eligibility criteria; not every private road qualifies. The "rural addition" process has its own application and prioritization mechanics through VDOT.

Can the county just ignore the covenant?
Generally no. Minner held that a city couldn't simply violate a recorded restrictive covenant; the property rights protected by such a covenant are real, and ignoring them invites injunctive relief and damages. The two options the AG flagged are (1) getting the covenant removed voluntarily (by negotiation with whoever holds enforcement rights, or by complying with whatever amendment procedure is in the declaration) or (2) condemning the covenant via eminent domain.

What does it cost to condemn a covenant?
The county must pay just compensation: roughly, the diminution in value of the affected properties from removal of the covenant. The amount depends on the covenant's economic significance to the benefited owners. If the covenant was originally bargained for to keep a road quiet or to preserve a particular character, the compensation could be substantial. If the covenant is more nominal, the cost may be modest.

Who can enforce a private-road covenant?
Generally the property owners who were intended as beneficiaries of the covenant when it was created, plus any homeowners' association that holds enforcement authority. Determining the precise beneficiaries can require careful title and document review. The AG explicitly said this was a fact-specific question outside the opinion's scope.

Are there alternatives to eminent domain?
Negotiation, of course. If all benefited owners agree, a covenant can usually be released by amendment of the declaration. The AG didn't lay out specific alternatives; he noted only that many facts (whether there is a homeowners' association, who owns the road, what other covenants affect the property) bear on whether and how the covenant could be removed, and that those facts were outside the opinion's scope.

Background and statutory framework

The secondary-system acceptance process (Va. Code § 33.1-72.1):

• Subsection (E): minimum width (40 feet, or 30 with extenuating circumstances), drainage easements, permits, fees.
• Subsection (F): authorizes counties to use general county funds, rural addition funds, or private funds to make required improvements.

The eminent-domain framework:

• Va. Code § 15.1-1901: locality power of eminent domain.
• Va. Code §§ 15.2-1902, 15.2-1905: procedures.
• Va. Code §§ 25.1-200 through 25.1-251: general condemnation procedures.
• Va. Code § 25.1-230: just compensation.
• Va. Const. art. I, § 11: state constitutional source of the just-compensation requirement.

Minner v. City of Lynchburg established that condemnation can reach restrictive covenants, not just fee interests or easements. The county's compensation obligation extends to the value the covenant beneficiaries lose.

Citations

• Va. Code § 33.1-72.1
• Va. Code § 15.1-1901
• Va. Code §§ 25.1-200 through 25.1-251
• Va. Code § 25.1-230
• Va. Const. art. I, § 11
• Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673 (1963)
• 2009 Op. Va. Att'y Gen. 80
• 2009 Op. Va. Att'y Gen. 138
• 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/2013/12-115_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 a private road within the Valley Heights subdivision of Russell County. Specifically, you ask whether and how Russell County may fund improvements for a private road in order for the road to be accepted into the secondary system of state highways. Additionally, you inquire as to the removal of a restrictive covenant prohibiting the use of public funds to improve the road.

Response

It is my opinion that § 33.1-72.1 of the Code of Virginia 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 ("VDOT"). It is further my opinion that whether the covenant described in your letter 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.[1]

Background

You relate that a privately-owned road in the Valley Heights subdivision of Russell County is in need of repair. The Russell County Board of Supervisors ("Board") would like to add the road to the secondary system of state highways in order to shift the maintenance burden to VDOT. Roads must meet certain standards, however, prior to acceptance into the secondary system of state highways. You indicate that although the Board would like to consider using public funds to pay for repairs bringing the road up to such standards, a restrictive covenant on the property prohibits the use of public funds to improve the road.

Applicable Law and Discussion

Section 33.1-72.1 of the Code of Virginia provides for the addition of certain streets to the secondary system of highways. The statute specifically provides that

Whenever the governing body of a county recommends in writing to the Department of Transportation that any street in the county be taken into and become a part of the secondary system of the state highways in such county, the Department of Transportation ... shall take such street into the secondary system of state highways ....

Such acceptance by VDOT is dependent upon the satisfaction of certain conditions. These conditions include that the street meet the following requirements:

(i) has a minimum dedicated width of 40 feet or (ii) in the event of extenuating circumstances as determined by the Commissioner of Highways, such street has a minimum dedicated width of 30 feet at the time of such recommendation. In either case such streets must [have] easements appurtenant thereto which conform to the policy of the Commonwealth Transportation Board in respect to drainage .... However, no such street shall be taken into and become a part of the secondary system of state highways unless and until any and all required permits have been obtained and any outstanding fees, charges, or other financial obligations of whatsoever nature have been satisfied or provision has been made, whether by the posting of a bond or otherwise, for their satisfaction.[3]

Section 33.1-72.1(F) sets forth the various funding options available to counties to make the improvements necessary for a road to be accepted into the secondary system of state highways. These options include general county funds, rural addition funds, and private funds. The statute authorizes the Board to make a determination as to the funds that should be used. Russell County, its attorney, and VDOT should review § 33.1-72.1 in light of the specific private property rights involved to determine whether and how it should improve this road.[7]

You also ask about landowner options to remove the restrictive covenant on the property. Based on the description provided, the restrictive covenant prohibits the use of public funds to maintain or repair the roadway. Many factors affect the ability of lot owners or Russell County to remove this covenant, including the existence of a homeowners' association, ownership of the road, and other covenants affecting the road or surrounding property. Because the particulars involved in such factors are not before me, I am unable to provide an opinion on the options specific to the Valley Heights subdivision as you present them.[8] Nevertheless, I note that Russell County also might consider using its power of eminent domain to remove the covenant.[9]

Conclusion

Accordingly, it is my opinion Russell County may request that VDOT accept a road into the secondary system of state highways and expend funds to improve such a road in accordance with § 33.1-72.1. It is further my opinion that whether the covenant described in your letter 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.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] "Attorneys General consistently have declined to render official opinions on specific factual matters ...." 2009 Op. Va. Att'y Gen. 80, 81 (further citation omitted).

[2] Va. Code Ann. § 33.1-72.1(E) (2011).

[3] Id.

[4] Section 33.1-72.1(F).

[5] See id.

[6] See id.

[7] "Attorneys General historically have declined to render official opinions when the request: (1) requires the interpretation of a matter reserved to another entity, (2) does not involve a question of law; (3) involves a matter currently in litigation; or (4) involves a matter of purely local concern or procedure." 2009 Op. Va. Att'y Gen. 138, 141 (further citation omitted).

[8] This Office traditionally has refrained from commenting on matters requiring additional facts to resolve. See, e.g., 2010 Op. Va. Att'y Gen. 56, 58.

[9] See Va. Code Ann. § 15.1-1901 (Supp. 2013) (providing authority to localities to exercise eminent domain). The procedures for condemning land are set out at Va. Code Ann. §§ 25.1-200 through 25.1-251 (2011 & Supp. 2013). See § 15.2-1902 (2012). See also § 15.2-1905 (2012) (establishing special condemnation procedures for counties). The courts have recognized that the right to eminent domain includes the right to condemn covenants. See, e.g., Minner v. City of Lynchburg, 204 Va. 180, 191, 129 S.E.2d 673, 680-81 (1963) (enjoining the City of Lynchburg from building a road on property that was subject to a covenant prohibiting roads while specifically stating that "[t]his does not mean, however, that the city cannot construct the street .... It may acquire this right by eminent domain ...."). Nonetheless, the County would have to pay just compensation if it chose to condemn the covenant. See Va. Const. art. I, § 11; Va. Code Ann. § 25.1-230 (2011).