Can we connect the dots

Overview

"A road way is to be provided for a foard [ford] crossing at appx sta 1094+50"

List of correspondence

1987.09.09 (John Beall to Anthony O'Connell, copy to Edward White)
1987.09.10 (Anthony O'Connell to Edward White and John Baell)
1991.11.11 (Anthony O'Connell to Joe Hassell)
1991.11.27 (Draft) (Anthony O'Connel to Virginia Marine Resource)
1994.10.05 (Anthony O'Connell to David Gehr)
1994.11.17 (Jack Hodges to Anthony O'Connell)
1994.11.21 (Anthony O'Connell to Jack Hodges)
1994.11.25 (Anthony O'Connell to Robert Martinez)
1994.12.15 (Robert Martinez to Anthony O'Connell
1995.01.05 (Stuart Waymack to Anthony O'Connell) (1935 Agreement said to be attached but it was not attached)
1995.03.16 (Anthony O'Connell to Jerry VanLear)
1995.03.16 (Anthony O'Connell to Stewart Waymack)
1995.03.30 (Jerry VanLear to Anthony O'Connell)
1995.04.07 (Jerry VanLear to Anthony O'Connell)
1995.05.12 (Anthony O'Connell to Stewart Waymack)
1995.05.17 (Staurt Waymack to Anthony O'Connell)
1995.06.03 (Anthony O'Connell to Stewart Waymack)
1995.06.19 (Jerry Waymack to Anthony O'Connell)
1996.07.20 (Anthony O'Connell to Stewart Waymack) (I ask for copy of 1935 Agreement)
1996.08.04 (Anthony O'Connell to Senator John Warner)
1996.08.19 (Anthony O'Connell to Senator Warren Barry)
1996.08.19 (Staurt Waymack to Anthony O'Connell) (Copy of 1935 Agreement sent)
1996.08.26 (Anthony O'Connell to Stewart Waymack) (I ask if there is a cleaner copy)
1996.08.29 (Anthony O'Connell to Stuart Waymack) (VDOT says come to Richmond)
1996.09.01 (Anthony O'Connell to Senator Charles Robb)
1996.09.03 (Senator Kevin Miller to Anthony O'Connell)
1996.09.05 (David Gehr to Malfourd Trumbo)
1996.09.09 (Senator John Chichester to Anthony O'Connell)
1996.09.12 (Anthony O'Connell to Senator John Chichester)
1996.09.20 (John Beall to Anthony O'Connell)
1996.09.20 (John Beall to Senator Russell Potts)
1996.09.20 (John Beall to Senator Kenneth Stolle)
1996.09.23 (John Beal to Senator Jay Katzen)
(John Beall's enclosures totalling six pages)
1997.09.16 (Stephen Baer to Anthony O'Connell) (AAG won't addess promise)
1997.11.03 (David Gehr to Senator Charles Colgan)
1997.11.17 (Staurt Waymack to Anthony O'Connell) (VDOT transcribes promise with station as "1044+50"
1997.11.19 (David Gehr to Senator Charles Robb)
1998.03.11 (John Hager to Anthony O'Connell)
1998.10.05 (Shirley Ybarra to Anthony O'Connell)
2005.06.13 (Staurt Waymack to Lynda South and Anthony O'Connell)

Correspondence

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. Teh operaticve 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"

1987.09.10 (Anthony O'Connell to Edward White and John Baell)
"I feel very fortunate for you, Mr. White, to have given me access to Mr. Baell, and for you, Mr. Bael, 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"

1991.11.11 (Anthony O'Connell to Joe Hassell)
"Several years ago I purchased a 139 acre farm in Highland County, Virginia, on US Route 220 approximately 11 1/2 miles south of Monterey, 2 1/2 miles south of Mustoe, and split by US 220 and the Jackson River. It is shown on the enclosed topographical map. As a possible aid in identification it is shown on the VDOT plat "From 0.663 miles north of Bath County Line to 2.310 miles south of Vanderpool". Sheet Number 13. At present I have no way to get to the eastern half of my property by vehicle because of the Jackson River.
May I have your permission to construct a ford across the Jackson River in order to get this eastern half? The site I have in mind is south of the concrete culvert and adjacent to the trout far, It is presently marked by blue surveyor's tape.
Thank you, Yours truly, Anthony O'Connell"

1991.11.27 (Draft) (Anthony O'Connel to Virginia Marine Resource) It was a pleasure to talk with you the other day."

1994.10.05 (Anthony O'Connell to David Gehr)
"I would like to thank you for your effort to preserve by relocation this historically significant bridge in Highland County.
I understand you are still open to considering sites, so I ask if you would consider a site at Route 220, approximately 1.1 to 1.2 miles north of Route 606 and approximately .68 t o .78 miles south of Route 605 (enclosures 1 thru 4) .
This site is on the inside of a gentle curve running directly alongside the Jackson River. Route 220 is a major north-south highway heavily traveled by tourists. The bridge would receive maximum public exposure, and showcase the 101 foot span.
The site is historically appropriate in that; the bridge would be used for the purpose for which it was originally intended (to span a river), there is negligible visual disturbance, a log house is being restored to the east, and a similar bridge (VDOT #6002) spans the Jackson River 1.1 to 1.2 ' miles south at Route 606. I feel qualified to continue VDOT's high level of preservation for this bridge, in that historic preservation was my profession (MA in the Conservation of Historic and Artistic Works, State University of New York, 1975).
I believe funding there location could be done under the Code of Virginia 33.1-199 ( enclosure 6) .
The entrance to my property east of the river was destroyed when the river was channelized and moved east along the new road ( enclosure 3) . The steep slope of riprap between the road and the river, and the river it self, is a physically barrier, and I believe, VDOT's ownership of the river and both banks, is a legal barrier, for me to try to build any access on my own. In short, I now have no access to any of my property east of the river. The previous owners apparently agreed to this loss of access in their deed to the Commonwealth (enclosure 5) , but I have been advised that the Code of Virginia 33.1-199 would override.
I would like to thank the VDOT office in Monterey for the numerous times they have come to discuss my access problems, and for their consistently valuable help and expertise. If there is any additional information you might think helpful, please let me know
Sincerely, Anthony O'Connell
Enclosures:

1994.11.17 (David Gehr to Anthony O’Connell)
November 17, 1994
Mr. Anthony O'Connell
6541 Franconia Road
Springfield, Virginia 22 1 5 0
Dear Mr. O'Connell:
This is in response to your recent letter to Commissioner David R. Gehr concerning disposition of the Route 603 bridge (Structure No. 6001) in Highland County. At present, the Virginia Department of Transportation (VDOT) is working with the Virginia Department of Historic Resources and other agencies to determine whether the old bridge can reasonably be preserved off-site so a new bridge can be built at that location. VDOT's preference is to transfer ownership of the structure to another party for use on private property off the state highway system. I appreciate your desire to potentially relocate the structure for use on your property and will keep your.interest in mind as our efforts continue over the next few months.
With regard to the provisions of Section 33.1-199 of the Code of Virginia, a distinction needs to be made between what preservation actions VDOT may take concerning disposition of the Route 603 bridge in relation to a contemporary highway improvement and what responsibilities the Department may, or may not have, concerning potential legal claims related to highway work completed in the 1930s. I! presently cannot address the latter issue since it involves obtaining a legal opinion on the specific circumstances of your case in relation to the statute. The Department's focus at this time is to implement the highway improvement on Route 603 and balance that need, if possible, with valid preservation concerns. If project-specific preservation issues can reasonably be resolved by transfer of the structure to your ownership, then we will explore that option with you in the near future.
Please let me know if I can be of further assistance.
Sincerely, J. S. Hodge
Chief Engineer "

1994.011.21 (Anthony O'Connell to Jack Hodges)
"Thank you for your letter of November 17, 1994, and for making it clear. that preservation of the bridge on Route 603, and Section 33.1-199 of the Code of Viginia, are separate issues.
I understand VDOT's preference to transfer ownership of the bridge to private property, off the state highway system, and
appreciate you keeping me in mind as are location site. I could put it on private property and still have it highly visible from
Route 220. I sincerely hope it can be preserved in Highland County.
I will pursue resolution on Section 33.1-199 of the Code of Virginia, separately.
Sincerely, Anthony O'Connell"

1994.011.25 (Anthony O'Connell to Robert Martinez)
"I would like to thank you for providing Highland County with one of the bcst road systems in the Commonwealth. However, I need access to the eastern half of my farm.
The original entrance to the property east of the river was destroyed when the Jackson River was channelized and moved
east-ward along with the new road. The river, and the steep slope of rip rap between the river and the road, is a physical barrier, and state ownership of the river and both banks, is a legal harrier, for me to try t,o build any access on my own. The
previous owners apparently agreed to this loss of access in their deed to the Commonwealth. I have been advised that the Code of Virginia, Section 33.1-199, would override this document (Does state official have the authority to execute a contract that is in conflict with the Code of Virginia?):
"33.l-199. Replacing entrances destroyed by Commissioner,- The Commonwealth Transportation Commissioner shall replace any entranbe destroyed by him in the repair or construction of his highways and replace any such entrance and leave any such entrant, in the same condition as it was prior to such repair or improvement. (Code 1950, 33-117; i.110, c. . 2.)"
I respectfully request that the entrance be replaced,
Apparently the Commonwealth purchased the area of the river and both banks in order to construct the new channel for the river. Since that work is complete, I also ask that, as adjacent property owner, I be permitted to repurchase that area that is in
excess of the normal highway right of way.
I would like to thank the VDOT office in, Monterey for the numerous times they haye come to discuss my access problems over the past five years, and for their consistently valuable help and expertise. If there is any additional information you might think helpful, please let me know.
Sincerely, Anthony 0 'Connell
Enclosures:

1994.12.15 (Robert Martinez to Anthony O’Connell)
December 15, 1994
Mr. Anthony O’Connell
6541 Franconia Road
Springfield, Virginia 22150
Dear Mr. O’Connell:
Thank you for your recent letter concerning access to the eastern portion of your farm.
It appears that damages were paid to the previous property owner for removal of the entrance to the property east of the river. I am asking Department of Transportation’s State Right of Way Engineer S. A. Waymack to research this matter and respond to you within the next two weeks.
A land use permit can be issued to you for access to the property east of the river. Construction of the entrance would be your responsibility.
With kind regards.
Sincerely,
Robert E. Martlnez
REM/ow
cc: Mr. David R. Gehr
Mr. S. A. Waymack

1995.01.05 (Stuart Waymack to Anthony O’Connell)
January 5, 1995
Route 220
Highland County
Mr. Anthony OtConnell
6541 Franconia Road
Springfield, Virginia 22150
Dear Mr. O’Connell:
Transportation Secretary Robert E. Martinez asked me to investigate the matter outlined in your November 25, 1,994, letter and advise you of my findings.
The deed you provided indicated that the Hiners conveyed the necessary right of way to construct what is now known as Route 220 on October 21, 1935. As shown in the last paragraph, the Hiners agreed to a monetary compensation in lieu of damages to the residue. This is further documented by the attached copy of the option agreement, which confirms that the consideration included all damages to the residue including loss of the entrance.
In reviewing Section 33.1-199 of the Code of Virginia, we found it was enacted into law on March 12, 1938. Obviously, since this statute did not exist in 1935, it is not applicable to the acquisition of the Hiner property. It is our view that landowners do have a right to voluntarily waive various provisions concerning their property. Therefore--since the previous landowner agreed to give up the original entrance--you, as a successor in title, did not obtain a right to require that an entrance be constructed.
While the river is a physical barrier to your construction of an entrance, the Virginia Department of Transportation's (MOT'S) ownership of the river and both banks should not be a legal obstacle. As Secretary Martinez indicated, VDOT can issue a land use permit to you to construct an entrance across the highway right of way. The actual construction of the entrance would be your responsibility and MOT would only need to review the plans with regard to safety and other aspects provided for in the permit.
It appears that VDOT does have some excess right of way through this property. If you are interested in acquiring some of this right of way, we need to know what portion you would like so it can be reviewed by all of our affected divisions. To pursue the repurchase of any of this property, mark the area on a print of the attached plan and return it to me. Please remember that you do not need to own the river or the banks in order to be able to construct an entrance to your property.
I hope this clears up any issues regarding the original right of way acquisition and your options for constructing an entrance to your property. Should you wish to pursue the construction of an entrance, the permit requirements should be coordinated through our residency office in Verona.
Sincerely,
State Right of Way Engineer
S. A. Waymack
RRB: efs
Attachment
.cc: The Honorable Robert E. Martinez
Mr. David R. Gehr
bc:
Mr. J. S. Hodge
Mr. J. J. Beall, Jr.
Mr. R. L. Moore
Mr. J. R. VanLear

1995.03.16 (Anthony O'Connell to Jerry VanLear)
"Pursuant to our telephone conversation yesterday, I am writing to ask if I may get permission to grade both sides of the Jackson Fiver, on your Right of Way, in the approximate area shown in blue, on the attached plat.
The purpose of the grading is to ford the river at that point. No work would be done in the river. I understand that if I do no
work in the river, all those agencies responsible for the river, such as the Corp of Engineer's, the Marine Resources, the Soil
and Water Conservation, etc., are not involved. I am asking permission to work only on the banks of the river, and only for
permission for which VDOT is authorized to give me.
If there is any other information you might find helpful, please let me know.
Sincerely, Anthony O"Connell
Enclosure: Plat
Copy: Mr. Robert Marshall"

1995.03.16 (Anthony O'Connell to Stewart Waymack)
"Thank you for the telephone conversation yesterday.
Would you please sell me the Right of Way colored yellow on the enclosed plat? If there is any other information you might find helpful, please let me know.
Sincerely, Anthony O'Connell
Enclosures (2 )

1995.03.30 (Jerry VanLear to Anthony O’Connell)
March 30, 1995
Subject: Route 220
Highland County
Mr. Anthony O’Connell
6541 Franconia Road
Springfield, VA 22150
Mr. O’Connell:
I received your letter requesting to perform work on the State right of way along Route 220 in Highland County. While I do not believe there will be any problem issuing you a permit for a private entrance at the location you indicated, there are a few issues that I need to review before I can issue the permit.
In reviewing the location, I believe there are some brhh and trees that must be removed in order to insure the proper sight distance. This brush and trees are on the State right of way, so there will likely be no problem with permitting you to do this. Additionally, you indicated you wanted to perform some grading on the State right of way so you could ford the river.
While you did indicate you would not be doing any work in the river, I have asked the District Environmental Section to review your request to insure the Department is in compliance with all appropriate laws of the State by permitting you do perform this work.
I had hoped to have an answer for you by this time, but this is not the case. Hopefully, I will be able to give you some feedback in the near future. In the meantime, if you have any queations, please give me a call.
Sincerely,
Jerry L. VanLear
Resident ‘ Engineer
cc: Mr. Robert W. Jones
Mr. Robert L. Marshall, Jr.

1995.04.07 (Jerry VanLear to Anthony O'Connell)
"April 7, 1995
Subject: Route 220
Highland County
Mr. Anthony O'Connell
6541 Franconia Road
Springfield, VA 22150,
Mr. O’Connell:
I have reviewed the location you noted in your letter dated March 16, 1995. While the issuance of a private entrance permit is not, in and of itself, unusual, the location you identified did offer some interesting considerations.
You indicated you will only be involved with grading the river bank for the purpose to ford the Jackson River. I asked the District Environmental Manager to accompany me on my review. We observed the river and I do not understand how you plan to ford the river without doing any work in the river to shape the bottom for a crossing. However, I also recognize this is your concern, but I did want to mention it to you because any work done in the river will require you to consult with Virginia Marine Resources Commission (VMRC) or the Corps of Engineers (Corps).
Contacts are as follows:

Mr. Chris Frye
Virginia Marine Resources Commission
Environmental Division
P. 0. Box 756
Newport News, VA 23607
(804) 247-8028

Mr. Jim Brogdon
U. S. Army Corps o Engineers
Western Virginia Field Office
HCR 32, BOX 101-A '
Staunton, VA 24401
(703) 886-4221

The Department of Transportation owns the land on which the Jackson River is located at this point. However, the
VMRC indicated they lIcontr01~.~ the river bottom. Further, the Corps has indicated they wish to participate in permitting any work done in the river because the river is designated as a trout stream in this area. The Corps did indicate they would consult with the Virginia Department of Game and Inland Fisheries if necessary; you will not have to initiate this contact yourself.
Please contact Mr. Robert L. Marshall, Jr., Area Superintendent, for the location the private entrance permit will be issued. I believe there are several trees along the river bank that you will need to cut in order to obtain sufficient sight distance. The entrance permit should include all work on the right of way.
I hope this provides you the information you needed. Please let me know if I can be of further assistance.
Sincerely, I
cc: Mr. Robert W. Jones
Mr. Robert L. Marshall, Jr.
Mr. Chris Frye – VMRC"

1995.05.12 (Anthony O'Connell to Stewart Waymack)
"In my letter to you of March 16, 1995, I asked if I could purchase the Right of Way shown in yellow on the enclosed plat.
Can you please tell me whether you will accept or reject my request? I thank you in advance.
Sincerely, Anthony O'Connell
Enclosure (1)"

1995.05.17 (Stuart Waymack to Anthony O’Connell)
"Dear Mr. O'Connell:
SUBJECT: Former Property of Terry Henkle, Parcel 010 and
D. H. A. & H. T. Hiner, Parcel 011
Reference is made to your letters of March 16 and May 12, 1995, and your telephone conversation of May 12 with Mr. Art Taylor regarding your request to purchase surplus Virginia Department of Transportation’s (VDOT'S) right of way on Route 220 in Highland County.
We have reviewed your request and have determined that the area indicated on the drawing attached to your May 12 letter is not available. Since VDOT constructed the channel change in this area we have a responsibility for any future maintenance that may be needed. Prior to our preliminary field review we thought there may have been more land than we needed beyond the river's bank on the east side. This was found not to be the case.
Your approach through an entrance permit would appear to be the most logical way to access the property.
Thank you for your interest in our property.
Sincerely,
S. A. Waymack
State Right of Way Engineer"

1995.06.03 (Anthony O'Connell to Stewart Waymack)
"Thank you for your letter of May 17, 1995, concerning my inquiries regarding the crossing of the Jackson River to State
Route 220.
I have a new question. I plan to build my home on this property I have been trying to access. To do this, there needs to be a
private driveway for the house that would cross the Jackson River to connect to the pavement of Route 220. The driveway would be located generally in the area shown in yellow on the enclosed plat. In reading the Code of Virginia, Section 33.1-197 states that VDOT is required to permit the crossing of its right-of-way to the paved road for a private home. I also note that Section 33.1-198, covering commercial and subdivision entrances, states that such connections shall be permitted for commercial projects under certain conditions and at the expense of the developer. Section 33.1-197 concerning private driveways makes no reference to the connection across the shoulder/right-of-way being at the homeowner's expense, which leads me to conclude that the law requires that VDOT construct a connection across the unimproved portion of the right-of-way.
My questions thus are:
1. Am I correct that VDOT must permit me to cross the right-ofway (including the river) for a driveway for my home?
2. Am I correct that section 33.1-197 requires VDOT to construct such connection?
3. If it is VDOT's position that the crossing must be permitted, but at my expense, what regulations, if any, apply? If I must
have plans for the crossing approved, which agencies must approve them and what is their jurisdiction?
I appreciate very much your response to my earlier inquiries and your patience with my requests. I would like to thank the VDOT personnel in Monterey for the numerous times they have come to discuss my access problems, and for their consistently valuable help and expertise. I look forward to hearing from you.
Sincerely, Anthony M. O'Connell
Enclosure : Plat
Copies: Mr. Robert L. Marshall, Superintendent
Mr. Jerry VanLear, Resident Engineer"

1995.06.19 (Stuart Waymack to Anthony O’Connell)
June 19, 1995
Route 220 - Highland County
Mr. Anthony O’Connell
6541 Franconia Road
Springfield, Virginia 22150
Dear Mr. O’Connell:
I have received your June 3 letter and will try to answer the additional questions you have raised concerning access to your property.
Section 33.1-197 makes the Virginia Department of Transportation (VDOT) responsible for ensuring that any private road connected to the highway system is done in a safe manner. Having the responsibility to make decisions regarding the safe entry of the private road to the public road in no way implies an obligation on VDOT to construct or pay for the construction o f a private driveway. Any differences between this statute and other statutes does not change that fact.
You are correct that VDOT must review and determine if a permit can be issued for you to have a driveway to your property at whatever location you propose. Our residency office will work with you and provide any safety concerns they may have regarding the location and any alternate sites available. If your proposed location meets VDOT's criteria, then the Department would be in a position to issue a permit for that portion of the work proposed with in the right of way.
As indicated above, the answer to question 2. is that Section 33.1-197 o f the Code of Virginia does not require or provide for VDOT to construct private driveways.
Your question 3. deals with other agencies that may have jurisdiction on the work you propose. VDOT's responsibility is to the traveling pu1ic and to ensure from our agency's standpoint t h a t the proposed work can be constructed safely. Because your proposal involves crossing the Jackson River, the agencies responsible for the rivers may wish t o review your proposed method of constructing the entrance. Mr. Jerry VanLear in his April 7, 1995, letter advised of contact persons for the Virginia Marine Resource Commission and the U.S. Army Corps of Engineers. These agencies will have to advise you on the information necessary for you to secure their permits to work within the river
itself.
I realize the involvement of other agencies further complicates your objective to have access to the property across the river. However, state and federal laws now require much greater control of this process.
State Right of Way Engineer
RRB:efs
cc: Mr. Jerry VanLear"

1996.07.20 (Anthony O'Connell to Stewart Waymack)
"You mentioned in your letter of January 5,1995, that the Hiners had agreed to a monetary compensation and that there was an attached copy of an option agreement. Would you be kind enough to send me any and all documentation concerning the specifics of that monetary consideration, and another copy of the option agreement? The copy you mentioned must have been lost.
I thank you in advance.
Sincerely, Anthony M. O'Connell
Enclosure: Copy of deed between the Hiners and the Commonwealth of Virginia"

(Note: The following is an example of my letter sent to 140 members of the Virginia)
1996.08.04 (Anthony O'Connell to Senator John Warner)
"My situation may be one of a kind.
The Highway Department destroyed the entrance to my property by running a river through it. The Highway Department's position is that the landowner is responsible for replacing the entrance. I believe they are responsible under the Virginia General Assembly Act Chapter 126 of 1938, Code of Virginia § 33.1-197 and § 33.1-199, and court precedences concerning ambiguous language.
Since changes in public policy change the interpretation of our laws, and you are on the forefront of our public policy, I am writing to ask if you would be willing to give your interpretation as to whether the Highway Department, or the landowner, is responsible for bridging the river.
Would you also forward this to Attorney General Gilmore, or to whomever you think necessary, to achieve a definitive ruling, one that leaves no room for ambiguity or confusion? If the ruling is that the Highway Department is responsible, I ask that it include the completion date of the bridge.
Sincerely, Anthony M. O'Connell
Enclosures"

(Note: The following is an example of my letter sent to 140 members of the Virginia)
(I did not have a copy of the 1935 Agreement when I wrote this letter)
1996.08.19 (Anthony O'Connell to Senator Warren Barry)
"My situation may be one of a kind.
The Highway Department destroyed the entrance to my property by running a river through it. The Highway Departments position is that the landowner is responsible for replacing the entrance. I believe they are responsible under Virginia General Assembly Act Chapter 126 of 1938, Code ofVirginia § 33.1-197 and § 33.1-199, and court precedences concerning ambiguous language.
Since interpretation is influenced by public policy and the General Assembly's intent, and you are the forefront of public policy and a General Assembly member, I am writing to ask if you would be willing to give your interpretation as to whether the Highway Department, or the landowner, is responsible for bridging the river.
Would you also forward this to Attorney General Gilmore and request an independent ruling'? If the ruling is that the Highway Department is responsible, I ask that it include the completion date of the bridge.
Sincerely, Anthony M. O'Connell
Enclosures"

1996.08.19 (Stuart Waymack to Anthony O’Connell)
"August 19, 1996
Route 220 - Project 724-F
Highland County
Former Property of D. H. A. &
H. T. Hiner - Parcel 011
Mr. Anthony O’Connell
216 Governor's Lane, Apt. 12
Harrisonburg, Virginia 22801
Dear Mr. O'Connell:
In response to your recent letter, attached is a copy of the option agreement between the Commonwealth of Virginia and the captioned landowners in consideration for our acquisition of this parcel. The agreement specifies $750.00 as the monetary consideration for land, fencing, tearing down or moving 3 buildings, apple and sugar trees, and all damage to the residue.
Sincerely,
(seal)
S. A. Waymack
State Right of Way Engineer
SMC/bam
Attachment
bc: Mr. Jerry R. VanLear
Mr. A. H. Taylor, I11"

1996.08.26 (Anthony O'Connell to Stewart Waymack)
"Thank you for sending me a copy of the option agreement.
I'm having difliculty reading parts of it and don't want to misquote it. Is it possible to obtain a cleaner copy and a printed version of the handwritten portion?
Sincerely, Anthony O'Connell"

1996.08.29 (Stuart Waymack to Anthony O’Connell)
"August 29, 1996
Route 220 - Project 724-F
Highland County
Former Property of D. H. A. &
H. T. Hiner - Parcel 011
Mr. Anthony O’Connell
216 Governor's Lane, Apt. 12
Harrisonburg, Virginia 22801
Dear Mr. O'Connell:
The option agreement mailed to you on August 19 was copied from our microfilm records. I am sorry that you are having difficulty reading the handwritten portion of the agreement, but that is the clearest copy that we are able to provide.
If you would like to come to our office in Richmond to look at the document on the microfilm reader which may provide a clearer view of the document, we will be glad to make the necessary arrangements with our file room. You may contact Ms. Beverly Todd of this office at (804) 786-4366 to set up an appointment to view the records.
Sincerely,
S. A. Waymack
State Right of Way Engineer
BDT: awm"

1996.09.01 (Anthony O'Connell to Senator Charles Robb)
"My situation may be one of a kind.
The Highway Department destroyed the entrance to my property by running a river through it. The Highway Department's position is that the landowner is responsible for replacing the entrance. I believe they are responsible under Virginia General Assembly Act Chapter 126 of 1938, Code of Virginia § 33.1-197 and § 33.1-199, and court precedences concerning ambiguous language.
Since interpretation is influenced by public policy, I ask if you would be willing to give your interpretation as to whether the Highway Department, or the landowner, is responsible for building the bridge. I understand the river places this on a federal level (State Right of Way Engineer's letter of June 19, 1995) and VDOT's two billion dollar budget includes federal tax dollars.
My goal is to obtain a binding completion date for the bridge by the Highway Department,
or an independent opinion on why the statutes are not applicable and the landowner is
responsible for building the bridge on a public highway right of way.
Thank you for your attention.
Sincerely, Anthony O'Connell
Enclosures"

1996.09.03 (Kevin Miller to Anthony O’Connell)
September 3, 1996
Mr. Anthony M. O’Connell!
216 Governors Lane, Apt. 12
Harrisonburg; VA 22801
Dear Mr. 0’Connell:
Thank you for the letter and package of documents relating to your property adjacent to Highway 220.
In reviewing your inquiries and thc responses you received. it certainly appears to me that the responses by VDOT officials have been made in a prompt and courteous manner. lt also appears that the responses have been thorough and accurate.
I am not a lawyer, but even if I were. I do not feel it would be appropriate for an individual legislator to take a position on an issue such as this.
Also, I can find no specific point of law at issue upon which a question to the attorney general could be propounded in a request for an official ruling.
Confident that the final resolution of' your efforts will be fair to you, and to all
Virginia Taxpayers, I am
Sincerely yours.
Kevin G. Miller
State Senator
Copy to: Honorable Robert E. Martinez Secretary of Transportation
David R. Gehr. Commissioner - VDOT"

1996.09.05 (David Gehr to Anthony O’Connell)
"September 5, 1996
Route 220 - Highland County
The Honorable Malfourd W. Trumbo
Member, Virginia Senate
P. 0. Box 44
This is in response to your recent letter concerning Mr. Anthony M. O'Connell's request for assistance in obtaining an entrance to his property located in Highland County. From the information submitted by Mr. O'Connell, you are aware that the Virginia Department of Transportation (VDOT) has thoroughly reviewed this issue in order to resolve the situation.
Originally, VDOT acquired property from the Hiner family in 1935 for the construction of improvements to what is now known as Route 220-including the relocation of the river in this area. Subsequently, Mr. O'Connell acquired the remaining property in 1989 and has focused on the entrance that was affected by VDOT's construction and acquisition in 1935. The Hiners were compensated for the total impact to the property-including payment for damages to their remaining lands.
VDOT has determined that this agency does not have any legal or moral obligation to construct an entrance as requested by Mr. O'Connell. This has been explained to him through numerous letters-as has VDOT's willingness to issue a land use permit (in accordance with our policy) so that he can construct a private driveway.
Hopefully, this information will be helpful in responding to your constituent.
Very truly yours,
David R. Gehr
Commissioner"

1996.09.09 (John Chichester to Anthony O’Connell)
"September 9, 1996
Mr. Anthony M. O'Connell
216 Governors Lane, Apt. 12
Harrisonburg, VA 22801
Dear Mr. O'Connell:
Your August 20 letter and enclosures have been received. You asked my interpretation of who is responsible for bridging the river, owned by the Virginia Department of Transportation, or you, as the adjacent landowner.
I first contacted my colleague, Senator Kevin Miller, to determine if he was aware of this matter. This is common courtesy as he is the representative for your area. He had also received your letter and indicated he would notify me of his response.
An inquiry was made to Mr. Stuart Waymack at VDOT. He explained, that the previous landowner, the Hiners', had an agreement with the State of Virginia in 1935. Far whatever reason, this agreement was not fulfilled. When the property was sold to you, the "agreement" was not transferable.
He further stated that VDOT has no moral or legal obligation to fulfill your request. If it did, they would have done so by now.
His determination of this matter was not based just on his opinion. It was based on findings from VDOT personnel and legal council.
Since this inquiry, Senator Miller has provided me with a copy of his reply. I must agree in that it would not be appropriate for us to take a position on this.
If you wish to continue this effort, I would encourage you to write the Attorney General yourself. At least you would conclude if you have any recourse.
Thank you for contacting me. With best wishes and kindest
regards, I remain
Sincerely,
John H. Chichester
JHS/bas
P.S. If you would like to have back the documents, please let me know."

1996.09.12 (Anthony O'Connell to Senator Chichester)
"Thank you for your letter of September 9, 1996.
It is obvious that you gave considerable time and effort to my letter of August 20, especially so in contacting Mr. Waymack, and I genuinely appreciate that. We need more leaders like you.
It is not necessary to send the documents back,
Sincerely, Anthony O'Connell"

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"
(John Beall's enclosures totaling six pages)

1996.09.20 (John Beall to Russell Potts, Jr.)
"The Honorable H. Russell Potts, Jr.
Member, Senate of Virginia
11 8 South Cameron Street
Winchester, Virginia 22601
Re: Anthony M. O'Connell
Virginia Department of Transportation
Route 220; Highland County
Dear Senator Potts:
The Attorney General asked me to respond to your recent letter you sent containing a packet of material that Mr. O'Connell, your constituent, had sent to you.
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 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 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 (jjb: 1toconel.pot)"
(John Beall's enclosures totaling six pages)

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)
(John Beall's enclosures totaling six pages)

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)"
(John Beall's enclosures totaling six pages)

1997.09.16 (Stephen Baer to Anthony O’Connell)
"September 16, 1997
Mr. Anthony M. O'Connell
216 Governor's Lane, Apt 12
Harrisonburg, Virginia 22801
Dear Mr. 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 501-504) 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, accordingly, we are unable to assist you in this matter.
With kindest regards, I remain
Stephen U. Baer
Assistant Attorney General"

1997.11.03 (David Gehr to Charles Colgan)
"November 3, 1997
The Honorable Charles J. Colgan
Member, Virginia State Senate
P. 0. Box 1650
Manassas, Virginia 20108-1650
Dear Senator Colgan:
This is in reply to your letter dated October 17, 1997 regarding correspondence you received from Mr. Anthony M. O’Connell concerning access to his property in Highland County.
Mr. O’Connell has previously written two U.S. Senators, Congressman Bob Goodlatte, State Senators Malfourd Trumbo, H. Russell Potts, Jr., Kevin G. Miller, Kenneth W. Stolle, and Delegates J. Randy Forbes and Flora Davis Crittenden, as well as the Governor and the Department of Transportation. These individuals either responded directly to Mr. O’Connell or referred the matter to the Attorney General for response.
Mr. O’Connell had previously contacted the local Resident Engineer, Jerry R. VanLear, for a permit. The Department routinely grants permits of this type. The permittee then performs the work required by the permit. One aspect of Mr. O’Connell’s request for a permit concerned fording the Jackson River, which the Commonwealth owns, over which the Department of Transportation has no jurisdiction. Therefore, Mr. O’Connell was advised to deal with the Virginia Marine Resources Commission and the Corps of Engineers. From my viewpoint, it appears the Department of Transportation
has handled this matter in accordance with its policies and the law.
I believe this current issue has moved into the legal arena and the Attorney General's Office has already provided Mr. O'Connell with their opinion concerning his views. I do not know of any additional issues identified by Mr. O’Connell for which the Department of Transportation has authority.
If I can be of further assistance, please let me know
David E. Gehr
Commissioner"

1997.11.17 (Stuart Waymack to Anthony O’Connell)
"November 17, 1997
Mr. Anthony M. O'Connell
21 6 Governor's Lane, Apartment 12
Harrisonburg. Virginia 22801
Dear Mr. O'Connell:
As I promised when we met on Friday, November 14, 1997, enclosed is a copy of the September 15, 1935, agreement between VDOT and the "Hiners". Also enclosed is a copy of the actual deed conveying the property to VDOT, which is dated October 21, 1935, and recorded in the Highland County Courthouse in Deed Book 29, Pages 503 through 505.
For your benefit, the Virginia Department of Transportation reads the handwritten section of the agreement with the Hiners to be as follows:

Consideration: $750.00 for land, fencing, tearing down or moving three buildings, apple and sugar trees, and all damages to residue.
It is agreed the State is to lay a 1" water line from the north side of road at Station 1077+90 to a point back of her house and construct a concrete watering trough 2' x 4' x 2'.
A road way is to be provided for foard crossing at approximate Station 1044+50. 'The timber is reserved by the owner and is to be cut under the standard timber clause.
'The owner agrees to clear the right of way before payment is made and in the event they should fail to do so, the State has the right to remove same and deduct the cost from the above consideration.
(Where handwriting was not clear, the words have been underlined and italicized.)

As I indicated to you, I have no reason to believe the consideration described was not provided to the Hiners some 62 years ago. Also, the Attorney General's Office has provided comments on the legal aspects of this situation.
Should you need to meet with me again in the future, an appointment arranged through my secretary will assure that I will be here.
Sincerely,
S. A. Waymack, Director
Right of Way and Utilities Division
RRB:efs"
Enclosures

1997.11.19 (David Gehr to Charles Robb)
"November 19, 1997
The Honorable Charles S. Robb
Member, United States Senate
The Ironfronts, Suite 310
1011 East Main Street
Richmond, Virginia 232 19
Dear Senator Robb:
In your letter of November 6, you requested assistance for the concerns of Mr. Anthony M. O'Connell and a direct response.
The Virginia Department of Transportation (VDOT) and the Virginia Attorney General's Office have been corresponding with Mr. O'Connell for several years. Mr. O'Connell wishes to use an agreement made between VDOT and the previous landowner dated September 11, 1935, to require that an entrance to his property be constructed by VDOT. He has been advised that there is no legal basis that would warrant the: expenditure of public funds for a private entrance to his property.
Based on our previous correspondence with Mr. O'Connell, I do not feel that another reply is needed. Please let me know if I may be of further assistance.
Very truly yours,
David R. Gehr
Commissioner "

1998.03.11 (John Hager to Anthony O’Connell)
"March 11, 1998
Mr. Anthony M. O'Connell
216 Governor's Lane, Apt. 12
Harrisonburg, Virginia 22801
Dear Mr. O'Connell
My staff and 1 have examined the packet of information you sent relating to access to your property on the Jackson River in Highland County. I confess that we are at a loss to understand what it is, exactly, that you want me to do.
If you want the state to construct a crossing at its expense, 1 believe the absence of any such obligation by the state has been addressed in several letters. In S. A. Waymack's letter of Jan. 5, 1995, for instance, he points out that Section 33.1 - 199 was enacted three years after the acquisition of the Hiner property and is, therefore, not applicable.
If you want to construct a crossing of the Jackson River at your own expense, I see that the process for gaining such approval has been laid out in Jerry R. VanLear's letter of April 7, 1995.
The legal issue seems to me to have been clearly expressed in Mr. Waymack's aforementioned letter when he writes: "Therefore - since the previous landowner agreed to give up the original entrance - you, as a successor in title, did not obtain a right to require that an entrance be constructed."
I gather from your lengthy correspondence that you disagree with this interpretation. Therefore, it seems to me your next step would be to hire an attorney. I wish you well in your attempt to reach a favorable solution to this issue.
Yours very truly,
John Hager
JHH/rw"

1998.10.05 (Shirley Ybarra to Anthony O’Connell)
"October 5, 1998
Mr. Anthony M. O'Connell
Apartment 12
216 Governor's Lane
Harrisonburg, Virginia 22801
Dear Mr. O'Connell:
Governor Gilmore has again asked that I review the concern raised in your latest letter dated September 17 and respond directly to you.
The correspondence you provided, as well as the Virginia Department of Transportation's (VDOT's) file, continues to support VDOT's previous determination.
The state has no legal or moral obligation to provide an entrance to property your family acquired in the late 1980s.
Should you wish to pursue an entrance permit, VDOT will continue to work you.
Sincerely,
Shirley Ybarra
SJY/smm
cc: Mr. David R. Gehr "

2005.06.13 (Stuart Waymack to Lynda South and Anthony O’Connell)
"From: "Waymack, Stuart A." <Stuart.Waymack@VDOT.Virginia.gov>
Subject: RE: 1935 Agreement
Date: June 13, 2005 7:43:49 AM MST
To: "South, Lynda J." <Lynda.South@VDOT.Virginia.gov>, "'Anthony O'Connell'
<anthony@esedona.net
Dear Mr. O'Connell,
Our Public Relation Department has requested that I respond to your request for information on a 1935 agreement.
In order to do so, I need more specific information as to the parties in the agreement, the location in the Commonwealth, and any other detailed information that might assist me in helping you with your request."

-----Original Message-----
From: South. Lynda J.
Sent: Monday, June 13, 2005 10:37AM
To: 'Anthony O'Connell'
Cc: Waymack, Stuart A.
Subject: RE: 1935 Agreement
Good morning. I have been out for some weeks due to an illness in the family and have just seen your message. I will pass this request on to our Right-of-way Division here in VDOT. I'm unfamiliar with the clause that your refer to and will have someone in that division respond.
Lynda J. South
Chief of Communications
Virginia Department of Transportation
804 786-271 5
Cell 804 3 17-3560
Please note new e-mail address: Lynda.South@vdot.virginia.gov

-----Original Message-----
From: Anthony O'Connell
Sent: Friday, June 03, 2005 08:22AM
To: South, Lynda J.
Subject: 1935 Agreement
Dear Virginia Governor Warner, Attorney General Jagdmann, the Virginia
General Assembly, VDOT, and to whom it may concern,
There is a clause in a 1935 Agreement between the State and a landowner that says "A road way is to be provided for a foard crossing at appx sta 1094+50." This clause promises to provide a roadway for a ford crossing [of a river] at approximate station 1094+50. This clause has been overlooked.
Can the landowner draw the State's attention to this clause? Please see the 1935 Agreement and past correspondence at www.roadway l094.com
Thank you.
Sincerely, landowner@roadway 1094.com