Can a small Virginia town (under 3,500 population) take over maintenance of its own streets that are part of the state highway system and get reimbursed by VDOT?

Plain-English summary

The Town of New Market sits at the junction of U.S. 11, U.S. 211, and I-81 in Shenandoah County. Its population was about 2,150 in 2010. Because of the highway crossroads, traffic volume is high for a town that size. Section 33.1-224 of the Code of Virginia automatically transfers secondary state highway streets to local control once a town hits 3,500 residents; New Market does not qualify because it is under 3,500. The Town wanted to know if it could nevertheless take over maintenance of its in-town streets and get reimbursed up to what VDOT (the Virginia Department of Transportation) would otherwise spend.

The AG split the answer by which system the street is in.

Primary (State Highway) System streets. Section 33.1-42 lets the Commonwealth Transportation Board, with the Governor's and the town's consent, incorporate town streets into the State Highway System for traffic-handling purposes. For those incorporated streets, § 33.1-42 expressly says: "The Commissioner of Highways may in his discretion permit such town or city to maintain any such road or street, or portion thereof." And: the Commissioner may "reimburse [the] town up to such amount as he is authorized to expend on the maintenance of such road or street, or portion thereof." Both pieces are discretionary on the Commissioner's part (the use of "may" rather than "shall" controls under Masters v. Hart, which holds that "may" imports discretion unless context makes clear it means "shall"). So if the Commissioner consents, New Market can maintain its primary-system streets and receive reimbursement. If the Commissioner does not consent, the Town cannot.

Secondary system streets. Different answer. Section 33.1-42's authorization is limited to streets in the "State Highway System," which is the primary system. The Code expressly excludes secondary-system roads from that system. Section 33.1-67 defines the secondary system as including "streets, causeways, bridges, landings and wharves in incorporated towns having 3,500 inhabitants or less ... as constitute connecting links between roads in the secondary system in the several counties and between roads in the secondary system and roads in the primary system of the state highways, not, however, to exceed two miles in any one town." Section 33.1-72.1 allows certain other streets to be brought into the secondary system. Under the expressio unius canon (GEICO v. Hall), the legislature's specific grant for the primary system means it did not intend to extend the same authority to the secondary system. Towns under 3,500 must rely on VDOT for secondary-road maintenance; § 33.1-224 makes the transfer automatic only when population reaches 3,500.

Streets not in any state system. The opinion noted in a footnote that for any street not in either the primary or the secondary system, the town has broad authority under §§ 15.2-2000 and 15.2-2001 to "lay out, open, extend, widen, narrow, establish or change the grade of, close, construct, pave, curb, gutter, plant and maintain shade trees on, improve, maintain, repair, clean and light: streets, limited access highways, express highways, roads, alleys, bridges, viaducts, subways and underpasses."

Currency note

This opinion was issued in 2014. 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.

A specific structural change to flag: in 2020, the Virginia General Assembly substantially reorganized Title 33.1 into Title 33.2 (recodifying transportation laws). The section numbers cited here (§§ 33.1-25, 33.1-34, 33.1-35, 33.1-42, 33.1-67, 33.1-72.1, 33.1-224) now correspond to sections in Title 33.2. The substantive framework here (primary vs. secondary systems, 3,500 population threshold for automatic secondary transfer, Commissioner's discretionary maintenance arrangement) is preserved in concept but the citations need to be verified against current Title 33.2. The 2010 census numbers in the opinion are now superseded by later census data; New Market's status under § 33.1-224 (now § 33.2-326) depends on the most recent decennial census.

Common questions

What is the difference between the "State Highway System" and the "secondary system of state highways"?
The State Highway System is the primary system, made up of major routes like U.S. and state numbered highways. The secondary system is everything else maintained by VDOT in unincorporated areas (and in towns under 3,500). The two are statutorily distinct under §§ 33.1-25 and 33.1-67.

Why does 3,500 population matter?
Section 33.1-224 says that when a town reaches more than 3,500 inhabitants, all its previously secondary-system streets are removed from that system and "the control and jurisdiction over them shall be vested in the local authorities." Towns at or under 3,500 keep VDOT control over their secondary streets.

Can a town under 3,500 take over secondary-road maintenance through some other route?
The opinion did not identify any. Section 33.1-42 was the only express path for towns under 3,500 to take over maintenance, and that path covers only primary-system streets. A town can ask the Commonwealth Transportation Board to transfer specific roads between systems under §§ 33.1-34 and 33.1-35, but that is a transfer of system designation, not a maintenance arrangement.

Is the Commissioner required to consent?
No. The opinion was clear that "may" in § 33.1-42 imports discretion (Masters v. Hart). The Commissioner can decline both the maintenance arrangement and the reimbursement request.

What does "up to such amount as he is authorized to expend" mean for reimbursement?
It caps reimbursement at the amount VDOT would have spent maintaining the same street itself. If the town spends more, it eats the difference. If the town spends less, it gets the lesser amount. The structure incentivizes towns to be at least as efficient as VDOT.

Who decides which streets are in which system?
The Commonwealth Transportation Board has authority under §§ 33.1-34 and 33.1-35 to transfer roads between the primary and secondary systems. New incorporations or annexations may also affect classification. Localities can request reclassification.

What about streets the town built itself that were never part of either system?
Those are subject to the town's general authority under §§ 15.2-2000 and 15.2-2001, which is broad. The town can maintain them at its own expense without VDOT involvement.

Are there examples of small towns that have entered into § 33.1-42 arrangements?
The opinion did not survey existing arrangements. Several Virginia small towns at various times have entered into agreements with VDOT for limited self-maintenance, often on primary-system arterials that pass through the town center. Specifics vary by town and by Commissioner.

Background and statutory framework

• Va. Code § 33.1-25: defines the State Highway System (a.k.a. the primary system) as not including the secondary system.
• Va. Code § 33.1-42: allows the Commonwealth Transportation Board, with Governor's and town's consent, to incorporate streets of towns under 3,500 into the State Highway System; allows the Commissioner of Highways to permit the town to maintain such streets and to reimburse up to the Commissioner's authorized expenditure.
• Va. Code § 33.1-67: defines the secondary system of state highways, including specific provisions for towns of 3,500 or less.
• Va. Code § 33.1-72.1: allows certain streets to be taken into the secondary system.
• Va. Code § 33.1-224: automatic transfer of secondary streets to local control for towns over 3,500.
• Va. Code §§ 33.1-34 and 33.1-35: CTB authority to transfer roads between systems.
• Va. Code §§ 15.2-2000 and 15.2-2001: general municipal authority to lay out and maintain streets.

The interpretive moves:

• Plain-meaning rule: "may" imports discretion (Masters v. Hart); "State Highway System" is the primary system, not the secondary.
• Expressio unius: the General Assembly's specific grant for primary-system streets implies non-extension to secondary-system streets.
• Statutes within the same chapter are read together; § 33.1-42's reach is fixed by § 33.1-25's definitions and § 33.1-67's separate secondary-system framework.

Citations

• Va. Code § 2.2-505
• Va. Code § 33.1-25
• Va. Code § 33.1-34
• Va. Code § 33.1-35
• Va. Code § 33.1-42
• Va. Code § 33.1-67
• Va. Code § 33.1-72.1
• Va. Code § 33.1-224
• Va. Code § 15.2-2000
• Va. Code § 15.2-2001
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 879 (2011)
• Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005)
• Jackson v. Fidelity & Deposit Co., 269 Va. 303, 608 S.E.2d 901 (2005)
• Hubbard v. Henrico Ltd. P'shp, 255 Va. 335, 497 S.E.2d 335 (1998)
• Masters v. Hart, 189 Va. 969, 55 S.E.2d 205 (1949)
• GEICO v. Hall, 260 Va. 349, 533 S.E.2d 615 (2000)
• Turner v. Wexler, 244 Va. 124, 418 S.E.2d 886 (1992)
• 2010 Op. Va. Att'y Gen. 10

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-013_Ham.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 10, 2014

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

Jason J. Ham, Esquire
Town Attorney for the Town of New Market
410 Neff Avenue
Harrisonburg, Virginia 22801-3434

Dear Mr. Ham:

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

Issue Presented

You inquire whether § 33.1-42 of the Code of Virginia permits the Town of New Market ("Town"), with the consent of the Commissioner of Highways, to maintain its own streets that are incorporated in the State Highway System and whether it allows the Town to be reimbursed up to the amount the Commissioner is authorized to expend on such street maintenance.

Response

It is my opinion that § 33.1-42, by its express terms, allows the Town of New Market, 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. It is further my opinion that the statute further allows the Town to be reimbursed up to the amount the Commissioner is authorized to expend for such street maintenance.

Background

You relate that the Town is located at the crossroads of U.S. Routes 11 and 211 and Interstate 81 in Shenandoah County, Virginia. The population of the Town is approximately 2,150 as of the 2010 Census. Because of its location at the junction of these highways, the Town, for a town of its size, has an unusually high volume of vehicular traffic on both primary and secondary routes. You further relate that the Town is not eligible to maintain its own secondary street system under § 33.1-224 because its population is less than 3,500.[1] In light of the traffic volume and a desire to exercise autonomy, the Town would like to maintain its own streets and be reimbursed by the Commissioner of Highways up to the amount he is authorized to expend on such street maintenance pursuant to § 33.1-42.

Applicable Law and Discussion

"When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute."[2] Thus, we interpret statutes according to their plain meaning,[3] for "when the legislature has used words of a clear and definite meaning, the courts cannot place on them a construction that amounts to holding that the legislature did not intend what it actually has expressed."[4]

Under certain circumstances, § 33.1-42 permits the roads and streets of incorporated towns of fewer than 3,500 inhabitants to be incorporated into the State Highway System.[5] For those roads and streets that have been incorporated, § 33.1-42 expressly provides that "[t]he Commissioner of Highways may in his discretion permit such town or city to maintain any such road or street, or portion thereof ...." Accordingly, provided the Commissioner consents, a town may maintain roads and streets within its jurisdiction that have been incorporated into the State Highway System.

In addition, § 33.1-42 expressly confers upon the Commissioner the discretion to "reimburse [the] town up to such amount as he is authorized to expend on the maintenance of such road or street, or portion thereof."[6] Again, the clear language of the statute establishes that a town may be reimbursed up to the authorized amount upon assuming responsibility for the maintenance of roadways within the State Highway System. Nonetheless, such reimbursement is subject to the sound discretion of the Commissioner.

Therefore, provided the Commissioner is agreeable with the Town's request to maintain its roads or streets and exercises his discretion in the Town's favor, § 33.1-42 permits the Town to maintain its roads or streets, or portions thereof, that are incorporated in the State Highway System, and to receive the reimbursement provided for under the statute. The Commissioner is not required to consent; thus, any request to maintain such roads or streets or subsequent request for reimbursement may be denied under this provision.[7]

I must note further that the express language of § 33.1-42 limits the availability of this arrangement to those portions of roads and streets that have been incorporated into the "State Highway System."[8] The Code expressly excludes from this system the roads and streets in the secondary system of state highways.[9] Therefore, to the extent a street or road in a town is part of the secondary system of state highways, or any other system, rather than the primary "State Highway System" the provisions of § 33.1-42 do not apply,[10] and the Town may not seek to maintain such a road or street pursuant to the statute.[11]

Conclusion

Accordingly, it is my opinion that § 33.1-42 of the Code of Virginia does permit the Town of New Market, with the consent of the Commissioner of Highways, to maintain such roads and streets that are incorporated as primary roads in the State Highway System, and the statute authorizes the Commissioner, in his discretion, to reimburse the Town for such maintenance, up to the amount the Commissioner is authorized to expend for such maintenance.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Va. Code Ann. § 33.1-224 (2011) provides that "Whenever any incorporated town has a population of more than 3,500 inhabitants, all the roads, streets, causeways, bridges, landings and wharves in such town theretofore incorporated within the secondary system of state highways shall be eliminated from such system and the control and jurisdiction over them shall be vested in the local authorities."

[2] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted).

[3] See Davenport v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005) (citing Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 904 (2005)).

[4] Hubbard v. Henrico Ltd. P'shp, 255 Va. 335, 339, 497 S.E.2d 335, 337 (1998).

[5] The statute specifically provides that "The Commonwealth Transportation Board may, by and with the consent of the Governor and the governing body of any incorporated town or city having a population of 3,500 inhabitants or less, incorporate in the State Highway System such streets and roads or portions thereof in such incorporated town or city as may in its judgment be best for the handling of traffic through such town or city from or to any road in the State Highway System."

[6] Va. Code Ann. § 33.1-42 (2011).

[7] See Masters v. Hart, 189 Va. 969, 979, 55 S.E.2d 205, 210 (1949) ("unless it is manifest that the purpose of the legislature was to use the word 'may' in the sense of 'shall' or 'must' then 'may' shall be given its ordinary meaning-permission, importing discretion.").

[8] The roads and streets constituting the "State Highway System" are also referred to as "The Primary System of State Highways." See § 33.1-25 (2011).

[9] Section 33.1-25. Section 33.1-67 provides that the secondary system of state highways "shall consist of all of the public roads ... in the several counties of the Commonwealth not included in the State Highway System, including such roads and community roads leading to and from public school buildings, streets, causeways, bridges, landings and wharves in incorporated towns having 3,500 inhabitants or less ... as constitute connecting links between roads in the secondary system in the several counties and between roads in the secondary system and roads in the primary system of the state highways, not, however, to exceed two miles in any one town." Section 33.1-72.1 permits, under specific circumstances, certain streets, not already part of the secondary state system, to be taken into the secondary system of state highways. In addition, the CTB is authorized to transfer, as it deems proper, roads from the primary to the secondary state system, § 33.1-35 (2011), and vice versa, § 33.1-34 (2011).

[10] The maxim 'expressio unius est exclusio alterius' "'provides that mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute.'" GEICO v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617 (2000) (quoting Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)). Thus, when the legislature has created an express grant of authority, that authority exists only to the extent specifically granted. See, e.g., 2010 Op. Va. Att'y Gen. 10, 11 & n.2.

[11] Irrespective of §§ 33.1-42 and 33.1-224, to the extent any particular road within the Town does not "constitute[] a part of any system of state highways," the Town has broad authority to maintain such a road. See Va. Code Ann. §§ 15.2-2000 (2012) & 15.2-2001 (2012) ("Every locality may lay out, open, extend, widen, narrow, establish or change the grade of, close, construct, pave, curb, gutter, plant and maintain shade trees on, improve, maintain, repair, clean and light: streets, limited access highways, express highways, roads, alleys, bridges, viaducts, subways and underpasses.").