If I create a family subdivision in rural Virginia, do VDOT's highway access standards still apply to my new driveway entrance, or am I exempt because the lot is family-only?
Subject
Whether VDOT's Access Management Design Standards apply to highway entrances on family subdivision lots, and whether a county can adjust those standards based on its population.
Plain-English summary
Louisa County's attorney asked the AG a question that comes up in every rural county. Virginia law forces every locality to allow "family subdivisions": you can split a parcel and give a piece to your child, sibling, or parent without going through the full subdivision process. The question was whether the resulting driveway entrance onto a state-maintained road has to meet VDOT's design standards (sight distance, grading, materials, geometry) or whether the family-subdivision exemption from local rules carries through to the state rules too.
AG Jason Miyares said the family-subdivision exemption applies to the local subdivision ordinance and nothing more. Code § 15.2-2244 limits what local rules a county can layer on a family subdivision, but it says nothing about state law, and other state law (the Access Management Regulations and the Road Design Manual Appendix F) keeps applying. If the new entrance fits the regulatory definition of a "low volume commercial entrance" (anything serving more than two private residences, up to five lots or up to 50 trips per day), it must comply with the private entrance design standards in Appendix F. The "low volume" label is a touch misleading: it covers ordinary rural driveways serving family lots, not just gas stations.
The opinion's second half handled the political ask: can Louisa County (or any rural county) just adopt a less stringent set of standards because rural traffic is lighter? No. The Commissioner of Highways holds the authority to write and modify the standards, and any change has to come through that office under the Administrative Process Act. A county cannot rewrite VDOT's design rules unilaterally, and the AG declined to opine on what factors the Commissioner could consider, since that question falls outside a county attorney's official duties.
What this means for you
If you own land in rural Virginia and are creating a family subdivision
Plan for the entrance permit. Before you finalize the subdivision plat, contact the local VDOT residency office and ask whether the proposed driveway location can meet sight distance and grading requirements under Appendix F. The standards exist whether or not the county requires you to obtain anything. A common rural failure mode is putting the new house on a hilltop parcel where the drive emerges in a sight-restricted curve; VDOT can refuse the permit at any location that does not meet the standards, and a clean local subdivision approval will not save you.
If your lot is the family member's first parcel and your driveway shares an existing entrance, footnote 1 in the AG opinion is good news: VDOT generally exempts existing low volume commercial entrances from compliance, unless conditions change enough to warrant new regulation.
If you are a county attorney or planning department
This opinion forecloses the workaround some rural localities had been considering: writing a family-subdivision-friendly entrance standard into the local ordinance. You cannot. The General Assembly delegated entrance design to the Commissioner of Highways. Your local ordinance can require the family subdivision to comply with state law (and probably should, to put applicants on notice), but it cannot soften the design standards.
If your locality has historically waved family-subdivision applicants through without coordinating with VDOT, this opinion is a reason to fix that pipeline. A clean process: the family subdivision plat is conditioned on a VDOT entrance permit, the applicant gets the permit before recording, and the permit is referenced in the plat notes.
If you advise rural landowners on subdivision and conveyance
Add the entrance question to your title and subdivision checklist. Family subdivisions are routinely treated as "no work needed" deals because they bypass local subdivision review. The AG opinion is a good citation to give to a county attorney who tells your client there is "nothing else to do" once the family-subdivision provision is invoked. If a buyer of a family-subdivided lot later runs into a denied entrance permit because the seller did not coordinate with VDOT, that can become a marketability problem.
If you sit on a county board of supervisors and are getting pressure to "fix" rural entrance rules
The lever is at the Commissioner of Highways, not in your ordinance. You can ask VDOT (and your General Assembly delegation) to consider a rural-context tweak to the Access Management Standards through the formal regulatory process. The AG specifically declined to address what factors the Commissioner could consider, but the Administrative Process Act framework (§§ 2.2-4000 to -4031) is the route. Adopting a county-level standard that contradicts Appendix F just sets up your county for invalid permits and later disputes.
Common questions
Q: What counts as a "low volume commercial entrance" if my driveway is just for my house and my kid's house?
A: The regulatory definition (24 VAC § 30-73-10) includes any entrance serving more than two private residences, or up to five lots, or land uses generating up to 50 trips per day under the ITE Trip Generation methodology. A two-house family-subdivision driveway probably qualifies as a "private entrance" (which serves up to two private residences) and falls under a different but related design standard. A three-or-more-house arrangement clearly hits "low volume commercial."
Q: Can VDOT refuse my entrance entirely?
A: VDOT must allow "reasonably convenient access to a parcel of record," but it is not required to approve a specific location or design you prefer (24 VAC § 30-73-60(B)). If your preferred location fails sight distance, expect VDOT to require a different one.
Q: Can I get a waiver?
A: Footnote 26 of the opinion notes that property owners can request a waiver or exemption from certain standards, with approval at VDOT's discretion under its administrative rules. The starting point is the VDOT Frequently Asked Questions page on access management, then a written request to the local district engineer.
Q: What if my entrance was built before the Access Management Standards existed?
A: Existing low volume commercial entrances are generally exempt under 24 VAC § 30-73-110, but VDOT can revisit if conditions change (more lots served, traffic volume increases, sight distance worsens because of vegetation or new construction).
Q: Can my county adopt different standards for rural areas?
A: No. The Commissioner of Highways has the regulation-writing authority. Local population is not a basis for a county to deviate from Appendix F.
Background and statutory framework
Virginia's "family subdivision" statute (§ 15.2-2244) does an unusual thing. The General Assembly required every county to include in its subdivision ordinance "reasonable provisions permitting a single division of a lot or parcel for the purpose of sale or gift to a member of the immediate family of the property owner." The statute also limits what the locality can require: family subdivisions are essentially exempt from the standard subdivision regulatory burden, with only narrow exceptions (right-of-way width is one).
That exemption operates within the local subdivision ordinance system. It does not operate against state law more broadly. The Supreme Court of Virginia drew this line in Crestar Bank v. Martin, 238 Va. 232, 235-36 (1989), where the court held that exempting lots from a subdivision ordinance did not exempt them from valid state laws regulating land use. The 1989 AG opinion (1989 Op. Va. Att'y Gen. 100) and the present opinion both apply the same logic.
The Access Management Regulations come from a different statutory source. Code § 33.2-245 directs the Commissioner of Highways to adopt "comprehensive highway access management standards" governing entrance design, location, spacing, and related geometry. The actual standards live in Appendix F of VDOT's Road Design Manual, which is incorporated by reference into Title 24, Chapter 73 of the Virginia Administrative Code. Section 30-73-70(A) makes low volume commercial entrances subject to the private entrance design standards in Appendix F.
Because the AG read both statutory schemes plainly and applied the Crestar principle, the result was straightforward: family-subdivision exemption from the local ordinance does not equal exemption from VDOT's regulations.
Citations and references
Statutes:
- Va. Code Ann. § 15.2-2244 (family subdivisions)
- Va. Code Ann. § 33.2-245 (highway access management)
- 24 VAC 30-73 (Access Management Regulations)
- VDOT Access Management Regulations and Standards page
Cases:
- Crestar Bank v. Martin, 238 Va. 232 (1989) (subdivision ordinance exemption does not equal exemption from other land-use laws)
- Chesapeake Hosp. Auth. v. State Health Comm'r, 301 Va. 82 (2022) (plain language interpretation of regulations)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-010-Phillips-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
800-828-1120
7-1-1
May 30, 2023
Helen E. Phillips, Esquire
Louisa County Attorney
1 Woolfolk Avenue, Suite 306
Louisa, Virginia 23093
Dear Ms. Phillips:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.
Issues Presented
You ask, in light of Code § 15.2-2244, whether the Virginia Department of Transportation's (VDOT's) Access Management Design Standards for Entrances and Intersections ("Access Management Design Standards") apply to highway access points associated with family subdivision lots. You specifically inquire regarding access points that meet the definition of "low volume commercial entrances" set forth in the design standards. Should these entrances be subject to the design standards, you further ask whether the standards can be modified to be based on the population of the county so that rural and urban areas might be treated differently.
Response
It is my opinion that the entrances you describe are subject to VDOT's Access Management Design Standards. Any modification to these standards would require action by the Commissioner of Highways in compliance with applicable law.
Applicable Law and Discussion
I. Family Subdivisions and the Applicability of the Access Management Design Standards
The General Assembly has directed every locality to adopt a subdivision ordinance "to assure the orderly subdivision of land and its development." Among the concerns addressed by subdivision ordinances are the coordination of existing and planned streets, the installation of utilities, the provision of drainage and flood control measures, and the dedication for public use of site-related improvements. The General Assembly has set forth numerous parameters governing the provisions to be included in a locality's subdivision ordinance. Pertinent to your inquiry, a subdivision ordinance must contain "reasonable provisions permitting a single division of a lot or parcel for the purpose of sale or gift to a member of the immediate family of the property owner in accordance with the provisions of § 15.2-2244[.]"
You relate that the subdivision ordinance adopted by Louisa County includes a "family subdivision" provision as required under § 15.2-2244(A). In requiring that a local subdivision ordinance allow for family subdivisions, § 15.2-2244(A) also limits the restrictions the "permitting" of such subdivisions may be "subject to" under the ordinance. The General Assembly thus has determined, with respect to family subdivisions, that "local subdivision ordinances must contain the specified provisions and may not include provisions and regulations other than those specified" under § 15.2-2244. As a result, family subdivisions "generally are exempt from the requirements of the locality's subdivision ordinance."
Section 15.2-2244 governs the contents of local subdivision ordinances with respect to family subdivisions. Although it generally provides family subdivisions an "exception to otherwise applicable subdivision requirements," it does not address the applicability of other provisions of law. Being exempt from provisions of the subdivision ordinance does not equate to exemption from other laws. Accordingly, parcels created by family subdivisions, irrespective of whether they are exempt from local subdivision regulations, remain subject to applicable state law.
Consequently, I consider the Access Management Design Standards themselves and related statutes and regulations to determine whether the design standards apply to low volume commercial entrances associated with family subdivision lots.
Seeking "to protect the public health, safety, and general welfare while ensuring that private property is entitled to reasonable access to the systems of state highways[,]" the General Assembly directed that comprehensive highway access management standards be adopted for managing access to state highways from private property. The General Assembly specifically instructed that this "coordinated set of state standards" include, among other things, "standards and guidelines for the . . . design of entrances." The Access Management Design Standards are the result of this directive. Now constituting Appendix F of VDOT's Road Design Manual, these design standards, incorporated by reference, are part of a broader regulatory scheme governing highway access management.
A VDOT-issued entrance permit is required for the construction of any entrance serving as a connection to a state highway. An "entrance" is "any driveway, street, or other means of providing for movement of vehicles to or from [a state-maintained] highway." "Each proposed highway entrance creates a potential conflict point that impacts the safe and efficient flow of traffic on the highway; therefore, private property interests in access to the highway must be balanced with public interests of safety and mobility." Accordingly, there are several classifications of entrances, each with its own set of permitting requirements. Although VDOT will issue a permit for reasonably convenient access to a parcel of record, it is not obligated to approve an applicant's preferred entrance location or entrance design.
You specifically inquire regarding "low volume commercial entrances." A "low volume commercial entrance" is defined as "any entrance, other than a private entrance, serving five or fewer individual residences or lots for individual residences on a privately owned and maintained road or land uses that generate 50 or fewer vehicular trips per day using the methodology in the Institute of Transportation Engineers Trip Generation[,] 8th Edition, 2008." Per regulation, "[l]ow volume commercial entrance design and construction shall comply with the private entrance design standards in Appendix F of the Road Design Manual . . . ." By reference, the plain language of the access management regulations makes low volume commercial entrances subject to the Access Management Design Standards.
A survey of the Access Management Design Standards specifically and the access management regulations more generally reveals no reference to family subdivisions. I find no provision that would exempt a low volume commercial entrance from the design standards by virtue of its relation to a family subdivision. I therefore conclude that the entrances you describe are subject to the private entrance design standards set out in VDOT's Access Management Design Standards.
II. Modification of the Access Management Design Standards
Because the Access Management Design Standards currently apply to the family subdivision entrances described, I also briefly address your other question of whether the standards required to be met can be adjusted to be based on the population of the county.
The authority to develop highway access management standards, including standards for the design of entrances, is vested in the Commissioner of Highways. This authority necessarily encompasses the authority to modify the standards. A decision to modify entrance design standards rests within the discretion of the Commissioner, subject to applicable law. The bases upon which the Commissioner may modify the design standards is thus a matter that falls outside the scope of your duties as a county attorney. Accordingly, I am unable to render an opinion on your more specific inquiry.
Conclusion
Accordingly, it is my opinion that the entrances to family subdivisions in Louisa County you describe are subject to VDOT's Access Management Design Standards for Entrances and Intersections. Any modification to these standards would require action by the Commissioner of Highways in compliance with applicable law.
With kindest regards, I am,
Very truly yours,
Jason S. Miyares
Attorney General