Can Virginia's Commonwealth Transportation Board authorize license plate reader cameras to be installed on state highways for law enforcement?

Subject

Whether the Commonwealth Transportation Board has the statutory authority to amend its Land Use Permit Regulations to authorize the installation of license plate reader (LPR) cameras in VDOT rights-of-way at the request of a locality or local law enforcement, when no specific statute authorizes such deployment.

Plain-English summary

Senator Pillion proposed regulatory language allowing the Commonwealth Transportation Board (CTB) to issue land use permits for third-party LPR cameras in VDOT rights-of-way when requested by a locality or its law enforcement leadership. The question to AG Miyares was whether the CTB had the legal authority to adopt that language.

The AG said no. The reasoning is grounded in administrative law fundamentals. The CTB is a creature of statute; it can only do what the General Assembly has authorized. Its core regulatory authority comes from § 33.2-210, which permits the CTB to "make regulations . . . for the protection of and covering traffic on and for the use of systems of state highways." That language sounds broad, but it must be read in context.

When the AG examined the CTB's overall basic law, the picture was clear: the CTB is a highway and transportation regulator, not a general law enforcement infrastructure regulator. Its statutory powers are about road construction, highway design, traffic flow, scenic byways, ferries, toll facilities, and similar transportation matters. LPRs for general law enforcement (catching wanted suspects, recovering stolen vehicles, AMBER and Silver Alerts) are not about the use of highways for travel or transportation.

The AG also pointed to a pattern of specific General Assembly action authorizing particular monitoring technologies. The legislature has, by detailed statute, authorized "photo-monitoring systems" for toll and traffic-light violations, video-monitoring systems for school bus safety, and photo speed monitoring devices in work zones and school crossing zones. The specificity of those enactments implies that the General Assembly does not intend to leave LPR-similar surveillance technology to agency regulatory discretion. The opinion also notes the maxim noscitur a sociis: the broad phrase "for the use of systems of state highways" must be read alongside the narrower "protection of" and "covering traffic on," limiting it to travel and transportation uses.

The opinion acknowledges that LPR technology may be very useful to law enforcement: it has the potential to help "solve crimes; apprehend dangerous fugitives; recover stolen property; or locate missing persons, especially when used in conjunction with AMBER or Silver Alert." But the AG concludes that adopting a framework for LPR use is squarely within the General Assembly's purview. The opinion notes only that the General Assembly "on many occasions has considered legislation concerning the use of LPR technology," which it reads as a further signal that the issue belongs to the legislature, not the CTB.

What this means for you

Virginia law enforcement executives

The opinion holds that the CTB cannot, under its current authority, amend its Land Use Permit Regulations to permit third-party stationary LPRs in VDOT rights-of-way. It addresses only that specific deployment (stationary LPRs in state highway rights-of-way via a CTB permit) and concludes such authority "remains solely vested in the General Assembly." It does not address LPRs in other settings, and frames the path forward as express legislative authorization.

County and city attorneys

The opinion is direct authority that a CTB permit-based approach to LPRs in VDOT rights-of-way is not available, because the CTB is a creature of statute whose powers are limited to its delegated transportation authority. It concludes such a rulemaking would lack statutory authority. The opinion is confined to VDOT rights-of-way and does not opine on programs on local rights-of-way or private property.

State legislators

The opinion concludes that adopting a framework for LPR use is squarely within the General Assembly's purview and that the CTB may not act "without a clear delegation of authority from the General Assembly." It observes that the General Assembly has "on many occasions" considered LPR legislation, which it treats as a sign the issue is reserved to the legislature. The opinion does not propose specific bill language or list particular prior bills.

LPR vendors

The opinion holds that stationary LPR installation in VDOT rights-of-way cannot be permitted by the CTB under current law. It does not address deployment on local roads, on private property, or mobile LPRs on patrol vehicles; its holding is limited to the third-party VDOT-right-of-way permit scenario presented.

VDOT and CTB staff

The opinion concludes that the CTB's existing regulatory authority does not reach the proposed LPR permit, so it "may not use its regulatory power to permit the installation of LPR systems" in the rights-of-way absent a clear delegation from the General Assembly.

Common questions

Q: Are mobile LPRs on Virginia police vehicles affected by this opinion?
A: No. The opinion is specifically about stationary LPR cameras installed in VDOT rights-of-way. Mobile LPRs on patrol vehicles operate under different legal frameworks and are not addressed.

Q: What about LPRs on local roads (not state highways)?
A: The opinion is specifically about VDOT rights-of-way (the state highway system). Local roads under local jurisdiction are not within the CTB's regulatory authority, and the opinion does not address them. Local governments have separate authority to regulate their own rights-of-way.

Q: What is "license plate reader" technology specifically?
A: A combination of cameras and optical character recognition technology that reads vehicle license plates and converts the image into searchable data. The data can be compared against databases of stolen vehicles, AMBER Alerts, wanted vehicles, or stored for future reference.

Q: Are toll cameras, red light cameras, and speed cameras OK on state highways?
A: Yes. The opinion explains that the General Assembly has specifically authorized photo-monitoring systems for toll and traffic-light violations, video-monitoring for school bus safety, and photo speed monitoring in work zones and school crossing zones, each by detailed statute. The AG's reasoning is that this particularity implies LPRs would likewise need their own specific legislation rather than agency action.

Q: Does this opinion address LPR data retention or privacy?
A: No. The opinion is about CTB authority to permit installation. The proposed regulatory language included a 30-day data retention requirement, but the AG did not opine on whether 30 days is appropriate or constitutional. Those questions await legislation.

Q: What if a private property owner adjacent to a state highway installs LPRs?
A: That is on private property, outside the VDOT right-of-way. The opinion does not address it. The private installation would still face independent legal questions (whether the LPR can capture images from a public highway, whether the data can be shared with law enforcement, etc.), but the CTB rulemaking issue does not arise.

Q: Can VDOT install LPRs for its own purposes (traffic monitoring)?
A: The opinion specifically addresses third-party LPRs at the request of law enforcement. VDOT's own use of cameras for traffic monitoring is a different question. Traffic cameras (which do not read license plates) are commonly used and authorized.

Background and statutory framework

The Virginia Constitution vests the legislative power in the General Assembly and creates a strong separation-of-powers framework (Art. III, § 1). Administrative agencies operate by delegated authority, and the delegation must come from clear statutory language. The CTB has substantial regulatory authority over Virginia highways, but its authority is shaped by the specific provisions of Title 33.2 (transportation), Title 46.2 (motor vehicles), and other transportation-related statutes.

The CTB's general regulatory authority in § 33.2-210 reads broadly ("for the protection of and covering traffic on and for the use of systems of state highways"), but the opinion reads it in context. The maxim noscitur a sociis (a word is known by its associates) limits "for the use of systems of state highways" to uses similar to "for the protection of" and "covering traffic on," both transportation-related concepts. LPRs for general law enforcement, the opinion concludes, do not implicate travel or transportation uses.

The pattern of specific legislative authorization for camera-based monitoring supports the opinion's reading. Each camera technology the General Assembly authorized (toll and traffic-light photo-monitoring, school bus video-monitoring, work-zone and school-crossing photo speed monitoring) was the subject of detailed legislation. The opinion treats that pattern as implying legislative intent to keep LPR-similar surveillance under direct legislative control rather than agency discretion.

The opinion rests on settled Virginia administrative-law doctrine that agencies are creatures of statute and may act only within their delegated authority, citing decisions of the Supreme Court of Virginia and the Court of Appeals. It applies that doctrine to a contemporary technology question and notes that the General Assembly has "on many occasions" considered LPR legislation without enacting it.

Citations and references

Statutes:

• Va. Code Ann. § 33.2-210 (CTB general regulatory authority)

Cases:

• Manassas Autocars, Inc. v. Couch, 274 Va. 82 (2007) (Virginia Supreme Court; agency authority)
• Maddox ex rel. Maddox v. Commonwealth, 267 Va. 657 (2004) (Virginia Supreme Court; scope of CTB authority)
• Cochran v. Fairfax Cnty. Bd. of Zoning Appeals, 267 Va. 756 (2004) (Virginia Supreme Court; agency action only within standards)
• Turner v. Commonwealth, 226 Va. 456 (1983) (Virginia Supreme Court; noscitur a sociis)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-033-Pillion-issued.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

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services

October 14, 2022

The Honorable Todd E. Pillion
Member, Senate of Virginia
851 French Moore Jr. Boulevard, Suite 178
Abingdon, Virginia 24210

Dear Senator Pillion:

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 regarding the potential deployment of license plate recognition (LPR) cameras on Virginia Department of Transportation (VDOT) rights-of-way by third parties. You specifically ask whether the Commonwealth Transportation Board (CTB) has the authority to amend its Land Use Permit Regulations (Regulations) to enable a permit to be issued for the installment of such cameras when requested by a law enforcement agency or local government. In particular, you seek guidance on whether the CTB can amend Part VII, Miscellaneous Provisions, of the Regulations to add the following language:

24 VAC 30-151-661. Stationary License Plate Readers.

Upon request of a locality or the chief law enforcement officer serving a locality, permits may be issued to a third-party provider to install a [LPR] within highway rights-of-way. Maintenance of these facilities is the responsibility of the permittee. Such permits may only be issued upon approval of the proposed operating agreement between the locality/law enforcement and the third-party provider which shall provide any pictures or data captured by such LPRs must be completely deleted within 30 days of capture.

LPR technology is not specifically defined in your inquiry; for purposes of this opinion, an LPR camera is one that takes snapshots of passing vehicles, thereby obtaining and electronically caching information such as the vehicle make, type, and color, and the license plate number and state.

Applicable Law and Discussion

The Constitution of Virginia expressly provides that "administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe." The General Assembly's delegation of its legislative power to administrative agencies "is essential to carry out the legitimate functions of government[: i]f nothing could be left to the judgment and discretion of administrative officers, government could not be efficient and the legislation itself would become 'either oppressive or inefficient.'" Accordingly, administrative agencies may be empowered to make regulations, and validly adopted regulations carry the force of law.

Unlike the General Assembly, which exercises plenary power limited only by the Virginia or United States Constitutions, the agencies established by the General Assembly are creatures of statute and "derive[] [their] power only from [their] authorizing legislation." An agency's authority to promulgate regulations therefore is not boundless; rather, the agency's power is limited to that which has been delegated by the General Assembly. Absent such a delegation, an agency is precluded from acting in a legislative role.

Central to your inquiry, therefore, is whether the General Assembly has delegated to the CTB the authority to promulgate regulations related to installing, for law enforcement purposes, LPR technologies operated by private parties at the request of a locality or law enforcement.

By statute, the General Assembly has empowered the CTB 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 . . . ." VDOT rights-of-way are part of the state highway system, and pursuant to its statutory authority, the CTB has established a permitting system whereby parties may request certain uses of the rights-of-way. The current permitting Regulations "apply to all authorized use or occupancy of the right-of-way." There is no statute expressly authorizing the general use of the equipment you present on VDOT rights-of-way. Nor is there explicit statutory authority permitting CTB to adopt regulations regarding the installation of data-gathering or surveillance equipment operated by private parties.

Although the language authorizing the CTB to "make regulations . . . for the use of systems of state highways" may appear broad, such language must be considered in relation to the CTB's overall basic law. The scope of an agency's regulatory authority is determined by taking into "account the text as well as the context of the underlying statute," whereby it is viewed as a "symmetrical and coherent regulatory scheme." The purposes underlying the basic law also are to be considered when examining the validity of agency action.

As the Supreme Court of Virginia has noted, "[t]he General Assembly has delegated to the [CTB] . . . authority over the supervision, management, construction, improvement, and maintenance of public highways and roads." A review of the statutes pertaining to the duties and powers of the CTB reveals that the CTB's basic law generally is limited to issues concerning the passage or conveyance on public roadways in the Commonwealth and enforcing traffic and safety requirements regarding the same. The current Regulations related to rights-of-way generally reflect this understanding of the scope of CTB's authority. Indeed, in administering its statutory functions, the CTB itself has determined that "[t]he Code of Virginia authorizes the [CTB] . . . to promulgate regulations, establish guidelines, administer programs, or take other actions related to transportation."

The camera installation you describe would not relate to the flow of traffic, the transportation network or assets, or uses of the state highways for travel. I find no nexus between the installation of LPR technology to aid law enforcement generally and the CTB's specific authority to issue regulations either "for the protection of," "covering traffic on," or "for the use of systems of state highways." The proposed permitting of LPR cameras by the CTB for the benefit of third-party providers therefore falls outside the scope of authority currently delegated to the CTB.

The maxim noscitur a sociis, which translates as "it is known from its associates," also applies here. It provides that "the meaning of a word takes color and expression from the purport of the entire phrase of which it is a part, and it must be read in harmony with its context." Accordingly, "[w]hen general words and specific words are grouped together, the general words are limited and qualified by the specific words and will be construed to embrace only objects similar in nature to those objects identified by the specific words." The language of § 33.2-210 authorizing regulations "for the use of systems of state highways" thus must be read in light of the more limited language of the statute permitting regulations "protect[ing] or covering traffic." Such a reading conveys that activity that does not implicate travel and transportation uses is beyond CTB's powers.

Not only does a review of the CTB's basic law, standing alone, fail to evince a legislative intent to authorize the CTB to regulate in this area, but an examination of other legislative action by the General Assembly further reveals that the CTB's authority to regulate is not so broad as to encompass the activity you present. Other laws specifically address the use of cameras and similar equipment in connection with transportation assets in the Commonwealth. The General Assembly explicitly has authorized the use of "photo-monitoring systems," which take "photographs, . . . videotape, or other recorded images of [a] vehicle," to capture toll and traffic light violations. The General Assembly also has authorized employing "video-monitoring system[s]" to enforce traffic laws related to school bus safety and "photo speed monitoring devices" to record speeding violations in highway work zones and school crossing zones. By definition, these monitoring systems and devices are similar in function to LPR cameras. The statutes authorizing the use of this equipment are very detailed. That the General Assembly has set forth these uses with such particularity implies an intent that they not be done otherwise; i.e., through an agency's regulatory action. Accordingly, this express legislation governing, in particularized circumstances, the use of LPR-similar technology within the state highway system supports a finding that general authority to permit their use has not been delegated to the CTB and such authority remains solely vested in the General Assembly. Notably, these enactments themselves are limited to enforcing laws relating to traffic concerns and do not pertain to law enforcement generally. I further note that the General Assembly on many occasions has considered legislation concerning the use of LPR technology. That the General Assembly often has taken up the issue of LPRs suggests that it believes this is an issue left to the legislature, and outside the purview of an administrative agency.

In sum, I conclude that, although the CTB regulates many uses on VDOT rights-of-way, at present it may not use its regulatory power to permit the installation of LPR systems therein without a clear delegation of authority from the General Assembly. Regulations are designed "to provide for specific applications of the broader policy concerns addressed in legislation passed by the General Assembly." To the extent that the CTB is to regulate such surveillance equipment, it must be with the express authority of the General Assembly.

It is not lost on the Office of the Attorney General that the practical applications of LPR technology may be incredibly useful for law enforcement. It is clear that LPR technology has the potential to allow law enforcement agencies more rapidly to solve crimes; apprehend dangerous fugitives; recover stolen property; or locate missing persons, especially when used in conjunction with AMBER or Silver Alert. Nevertheless, equally evident is that approving and adopting a framework for using LPR technology remains squarely within the purview of the General Assembly, and neither this Office, nor an administrative agency may encroach upon the General Assembly's authority in the present matter.

Conclusion

For the foregoing reasons, it is my opinion that the Commonwealth Transportation Board lacks the authority to amend its land use permit regulations to authorize a land use permit to be issued for license plate readers within the Commonwealth.

With regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General