AG

SAAG

Senior Assistant Attorney General John Beall

Letters concerning the entrance to Accotink in Fairfax County

1987.09.09   (John Beall to Anthony O'Connell, copy to Edward White)
In response to our telephone conversation about discontinuance of maintenance of public roads in Virginia, partucularly in Fairfax County, I enclose copies of sections from Title 33.1 of the Code of Virginia. The operative sections are § § 33.1-150 to 33.1-155, § 33.1-147 referenced in § 33.1-150 and § 33.1-69 and § 33.1-229.
Sincerely, John J. Beal, Jr.
Senior Assistant Attorney General
Copy to Edward White"

1987.09.10   (Anthony O'Connell to Edward White and John Beall)
"I feel very fortunate for you, Mr. White, to have given me access to Mr. Beall, and for you, Mr. Beall, to have given me your unique insight and copies of the pertinent statutes. Thank you both for your valuable help yesterday.
Sincerely, Anthony O'Connell"

Letters concerning the entrance in Highland County

1996.09.20   John Beall to Anthony O’Connell
You have apparently written to a number of legislators, state and federal, about the problem that you have in Highland County due to the Department of Highway's acquisition of property in 1935 that has left the Jackson River between your property and Route 220. Senator Robb and Delegate Flora Crittenden forwarded your letters to the Attorney General asking that he write you directly. The Attorney General asked me to respond. I have responded directly for the Attorney General to State Senators Yotts, Stolle and Delegate Forbes.
You told Delegate Crittenden that your "goal is to obtain a binding completion date for
the bridge by the Highway Department or a clear opinion that the landowner is responsible." You asked Senator Robb "for an independent ruling that leaves no room for ambiguity or confusion".
Section 33.1-199 was enacted in 1938, three years after the Department of Highways purchased the property from your predecessor in title. As a consequence that statute has no relevance to your issue.
The Department of Highways purchased the property that has led to the situation that you face in 1935. Any breach of that bargain with your predecessor in title would have had to be litigated long before now.
With respect to § 33.1-197, the Department of Transportation, successor to the Department of Highways, routinely grants entrance permits, subject to being satisfied that the safety of the users of such entrance and those on the main highway will not be compromised by the placement and utilization of the entrance. Construction of the entrance, however, is the responsibility of the landowner, including such items as curb and gutter or deceleration or acceleration lanes. The Attorney General in April 1975 was asked for an opinion whether a landowner can be required by the Department of Highways "to construct at his own expense, a turn-off or deceleration lane on the public right of way." It was the opinion of the Attorney General, then and it still is today, that the inherent police power that the Department possesses would permit the Department to require the landowner to construct those features. I enclose a copy of that opinion to then Delegate D. French Slaughter. While that opinion directly addressed § 33.1-198 (commercial entrances) the reasoning is equally applicable to § 33.1-197 (private entrances). Thus, the Department of Transportation has no responsibility under the entrance permit statutes to construct the bridge that apparently is necessary to reach Route 220 from your property.
I hope that this is responsive to your inquiries to Senator Robb and Delegate Crittenden.
Sincerely , John J. Beall, Jr,
Senior Assistant Attorney General
56/157 (jjb: ltoconel.rob)
cc: The Honorable Charles S. Robb
The Honorable Flora D. Crittenden

1996.09.20   John Beall to Kenneth Stolle
The Honorable Kenneth W. Stolle
Member, Senate of Virginia
780 Lynnhaven Parkway, Suite 299
Virginia Beach, Virginia 23452
Re: Anthony M. O'Connell
.Dear Senator Stolle:
The Attorney General asked me to respond to your recent letter in this matter. I do not believe an official ruling is necessary.
I have reviewed the material that you furnished. Mr. O'Connell's initial approach to the Department of Transportation sought to invoke § 33.1-199 in order to have the entrance that the Department acquired in 1935 replaced. That statute did not come into existence until 1938, so that statute cannot be used to require the Department to replace the entrance.
It appears, as well, that the Department and Mr. O'Connell's predecessor in title reached an agreement in 1935, which would bind all of Mr. Hiner's successors in title. With the passage of time any breach of that agreement made with Mr. Hiner cannot be enforced legally.
The second approach to the Department involves Mr. O'Connell seeking an entrance permit. The Department routinely grants hose permits. The permittees then do the work required by the permit. I share with you a copy of an Official Opinion dated April 8, 1975 that opines that a landowner can be required to pay for items that are installed on the right-of-way pertaining to an entrance. With respect to working in or crossing the Jackson River, which the Commonwealth owns, the Department of Transportation has no jurisdiction over it, so Mr. O'Connell was advised to deal with the Virginia Marine Resource Commission and the Corps of Engineers. It appears to me that the Department of Transportation has handled this matter in accordance with its policies and the law.
With respect to any problem obtaining the entrance permit, the Department's Land Use Permit Manual provides a mechanism to appeal the Resident Engineer's denial of the permit, which the material that you furnished does not indicate has happened yet.
There is no requirement that the Department pay for the work done on the Department's right of way to construct a private entrance. Routinely, such permits are granted and when the entrance is constructed, curb and gutter are required as well as additional paving. I share with you an Official Opinion of the Attorney General dated April 8, 1975 which speaks to the issue of requiring persons to implement the entrance standards at his own expense. The opinion's conclusion is that such a requirement constitutes a valid exercise of the police power.
I hope that this is responsive to your letter.
Sincerely, John J. Beall, Jr,
Senior Assistant Attorney General
56/157 (jjb: ltoconel.sto)
Enclosures

1996.09.20   John Beall to Jay Katzen
The Honorable Jay Katzen
Member, House of Delegates
Post Office Box 3004
Warrenton, Virginia 22186
RE: Anthony M. O'Connell
Virginia Department of Transportation
Route 220; Highland County
Dear Delegate Katzen:
The Attorney General asked me to respond to your recent letter regarding this matter.
Mr. O'Connell has sent a similar package of material to a number of legislators, state and federal. I enclose the response that the Department of Transportation gave to Senator Trumbo. I also enclose a copy of the response that Senator Kevin Miller gave to Mr. O'Connell.
I have reviewed the material that you furnished. Mr. O'Connell's initial approach to the Department of Transportation sought to invoke § 33.1-199 in order to have the entrance that the Department acquired in 1935 replaced. That statute did not come into existence until 1938, so that statute cannot be used to require the Department to replace the entrance.
It appears, as well, that the Department and Mr. O'Connell's predecessor in title reached an agreement in 1935, which would bind all of Mr. Hiner's successors in title. With the passage of time any action on that agreement made with Mr. Hiner by the Department cannot be maintained.
The second approach to the Department involves Mr. O'Connell seeking an entrance permit. The Department routinely grants those permits. The permittees then  do the work required by the permit. I share with you a copy of an Official Opinion dated April 8, 1975 that opines that a landowner can be required to pay for items that are installed on the right-of-way pertaining to an entrance. With respect to working in or crossing the Jackson River, which the Commonwealth owns, the Department of Transportation has no jurisdiction over it, so Mr. O'Connell was advised to deal with the Virginia Marine Resource Commission and the Corps of Engineers. It appears to me that the Department of Transportation has handled this matter in accordance with its policies and the law.
In sum, the Attorney General is not in a position to assist Mr. O'Connell. I hope that this is responsive to your letter.Sincerely, John J. Beall, Jr.
Senior Assistant Attorney General
56/157 (ijb: katzen)
Enclosures

AAG

Assistant Attorney General

1997.09.16 (Office of the Attorney General [Stephen Baer] to Anthony O'Connell)
"Attorney General Cullen asked that I respond to your letter dated September 23, 1997. In that letter you have asked the Attorney General to address a particular phrase in a 1935 contract between the Commonwealth and the Hiners.
A review of the materials you mailed with your September 3, 1997 letter (in particular, page 501 - 505) demonstrates that your concerns involve issues related to what may amount to a private cause of action. Accordingly, I would suggest that you consult with private counsel.
As I mentioned in my previous reply, a letter which you referenced, the office of the Attorney General is the law firm for the various state agencies of the Commonwealth.
With kindest regards, I remain
Very truly, Stephen U. Baer Assistant Attorney General"