Can a county official, instead of the board of supervisors, ask VDOT to add a street to the state highway system in Virginia?

Plain-English summary

Fairfax County's attorney asked Virginia Attorney General Jay Jones a narrow but practical question: when a new subdivision street is ready to become a state-maintained road, can a county official make the request to the Virginia Department of Transportation (VDOT) on the board of supervisors' behalf, or does it have to be the board itself?

The AG's answer is that it has to be the board. The VDOT regulations that govern this (24 VAC § 30-91-60(E)(7) and § 30-91-150(B)(3)) say the "governing body," meaning the county board of supervisors, must request acceptance of the street "by proper resolution." The AG read that language as unambiguous: there is no provision for a county official, or the locality generally, to make the request in place of a board resolution, and nothing authorizes delegating that role.

Part of the reasoning is that the required resolution is not a formality. It must include the board's guarantee of an unrestricted, unencumbered right-of-way (plus any needed easements) for the specific street being submitted. The AG reasoned that a single official cannot make that guarantee on his own, and a blanket resolution purporting to give an official standing authority would not supply the street-specific guarantee the regulation demands. The AG also rejected the argument that § 30-91-150(B)(3) offers an alternative path, reading it instead as describing what happens after the board has already passed its resolution.

What this means for you

Virginia counties and their boards of supervisors

Under this opinion, accepting a subdivision street into the secondary state highway system requires a formal resolution passed by the board of supervisors for that specific street; the board cannot delegate the request to a county official or rely on a standing blanket authorization. The resolution must carry the board's guarantee of the right-of-way and any necessary easements. If your county has been routing these requests through a designated staff member, this opinion says that does not meet the regulation.

Land developers and subdividers

If you are waiting for streets in a new subdivision to be taken into the state system for maintenance, the request to VDOT has to come from the board of supervisors by resolution. A county staff-level request will not, under this opinion, complete the process, so build the board's action into your timeline.

VDOT and local transportation staff

The opinion treats the "governing body resolution" requirement as a hard prerequisite VDOT should look for before accepting a street, and it confirms that the reference-section language in § 30-91-150 assumes a board resolution has already been adopted rather than supplying a substitute for one.

Common questions

Q: Who has to request that a new street be added to Virginia's secondary highway system?
A: The county's governing body, its board of supervisors, must make the request by a proper resolution. The Attorney General concluded that a request from a county official acting on the board's behalf does not satisfy the VDOT regulation.

Q: Can the board of supervisors delegate this to a county official with a blanket resolution?
A: No. The AG explained that the resolution must include the board's guarantee of an unrestricted right-of-way for the specific street, so a general resolution giving an official blanket authority would not provide the street-specific guarantee the regulation requires.

Q: Doesn't 24 VAC § 30-91-150 provide an alternative way to get a street accepted?
A: The AG said no. That provision assumes the board has already passed its resolution and describes the effect of that resolution; it does not create a separate method of requesting acceptance.

Q: How much deference does VDOT's own reading of these regulations get?
A: The AG noted that an agency's interpretation of its own regulation is ordinarily given deference for its experience and specialized competence (Va. Code § 2.2-4027), but that deference does not apply when the regulation is unambiguous, as the AG found here.

Background and statutory framework

The Attorney General issued this as an official advisory opinion under Va. Code § 2.2-505. The regulations at issue sit in VDOT's Chapter 91 (subdivision street requirements) and were promulgated under Va. Code §§ 33.2-210, 33.2-241, 33.2-326, and 33.2-705. A state agency's regulations carry the force of law (Manassas Autocars, Inc. v. Couch; Sargent Electric Co. v. Woodall), and courts ordinarily defer to an agency's reading of its own regulation (Bd. of Supervisors v. State Bldg. Code Tech. Rev. Bd.). But that deference yields when the regulation is unambiguous, and the plain-meaning rule of construction still governs regulations authorized by the General Assembly (Davis v. Davis; Peed v. Va. DOT).

Applying those principles, the AG found 24 VAC § 30-91-60(E)(7) unambiguous: after a subdivision street's plans are approved and the other conditions (public dedication of right-of-way, construction to plan, maintenance, fees and surety, required agreements) are met, the last step is that "the governing body, by proper resolution, requests VDOT to accept the street." Because "governing body" is defined as the county board of supervisors (24 VAC § 30-91-10), and the resolution must carry a street-specific right-of-way guarantee, the AG concluded a county official cannot stand in for the board, and § 30-91-150(B)(3) does not supply an alternative.

Citations and references

Statutes and regulations:

• Va. Code § 2.2-505 (official advisory opinions)
• 24 VA. ADMIN. CODE § 30-91-60(E)(7) (governing body's resolution requesting acceptance)
• 24 VA. ADMIN. CODE § 30-91-150(B)(3) (effect of the governing body's resolution)
• 24 VA. ADMIN. CODE § 30-91-10 (definition of "governing body")
• Va. Code §§ 33.2-210, 33.2-241, 33.2-326, 33.2-705 (VDOT rulemaking authority)
• Va. Code § 2.2-4027 (deference to agency competence)

Cases (Virginia courts):

• Manassas Autocars, Inc. v. Couch, 274 Va. 82 (2007) (Supreme Court of Virginia)
• Sargent Electric Co. v. Woodall, 228 Va. 419 (1984) (Supreme Court of Virginia)
• Bd. of Supervisors v. State Bldg. Code Tech. Rev. Bd., 52 Va. App. 460 (2008) (Court of Appeals of Virginia)
• Holtzman Oil Corp. v. Commonwealth, 32 Va. App. 532 (2000)
• Family Redirection Inst., Inc. v. Commonwealth, 61 Va. App. 765 (2013)
• Finnerty v. Thornton Hall, Inc., 42 Va. App. 628 (2004)
• Va. Real Estate Bd. v. Clay, 9 Va. App. 152 (1989)
• N. View Home for Adults, LLC v. Va. Dep't of Health, No. 1006-20-2, 2021 Va. App. LEXIS 82 (2021)
• Williams v. Commonwealth of Va. Real Est. Bd., 57 Va. App. 108 (2010)
• Davis v. Davis, 298 Va. 157 (2019) (Supreme Court of Virginia)
• Lee Cty. v. St. Charles, 264 Va. 344 (2002) (Supreme Court of Virginia)
• Peed v. Va. DOT, 72 Va. App. 686 (2021)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2026/26-006-Teare-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jay Jones 202 North Ninth Street
Attorney General Richmond, Virginia 23219
804-786-2071

Fax 804-786-1991

Virginia Relay Services

800-828-1120

7-1-1

July 8, 2026
Elizabeth D. Teare, Esquire
County Attorney, County of Fairfax
12000 Government Center Parkway, Suite 549
Fairfax, Virginia 22035

Dear Ms. Teare:

I am responding to your request for an official advisory opinion in accordance with Va. Code § 2.2-
505.

Issue Presented

You ask whether, under 24 VA. ADMIN. CODE §§ 30-91-60(E)(7) and -150(B)(3), the Virginia
Department of Transportation (“VDOT”) may accept a request to add a street into the secondary system
made by a duly designated Fairfax County official acting on behalf of the governing body.

Applicable Law and Discussion

The regulations you refer to govern the procedure by which certain streets are accepted into the
secondary system of state highways.' They were promulgated by VDOT under the authority of Va. Code
§§ 33.2-210, 33.2-241, 33.2-326, and 33.2-705.

The regulations of a state agency (such as VDOT) have the force of law’, and an agency’s
interpretation of its own regulation is ordinarily afforded deference based the agency’s “experience and
specialized competence.” “This deference stems from Va. Code § 2.2-4027, which requires that reviewing
courts ‘take due account’ of the ‘experience and specialized competence of the agency promulgating the

! The regulations at issue are in VDOT’s Chapter 91, which is specific to subdivision street requirements. Chapter
92 deals more broadly with secondary street acceptance requirements.

2 Manassas Autocars, Inc. v. Couch, 274 Va. 82, 87 (2007), citing Sargent Electric Co. v. Woodall, 228 Va. 419,
424 (1984).

3 Bd. of Supervisors v. State Bldg. Code Tech. Rev. Bd., 52 Va. App. 460, 466 (2008), citing Holtzman Oil Corp.
v. Commonwealth, 32 Va. App. 532, 539 (2000); See also Family Redirection Inst, Inc. v. Commonwealth, 61 Va.
App. 765, 772 (2013), citing Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 634 n.2 (2004) (citation omitted).

Elizabeth D. Teare
May 8, 2026
Page 2

regulation.” When a regulation is unambiguous, the agency is not entitled to deference on an interpretation
that is contrary to the unambiguous meaning’ or “arbitrary and capricious.”° This is consistent with the rule
of statutory construction that binds courts to the plain meaning of unambiguous language.’

The regulations in question are unambiguous and require a resolution of the governing body. There
is no language providing for acceptance of a street into the secondary system without a formal resolution
passed by the county board of supervisors, and there is no mention of a designation or delegation of the
governing body’s mandate.

An extensive administrative procedure for acceptance of a subdivision street into the secondary
system is set forth in 24 VA. ADMIN. CODE § 30-91-60. Subsection (E) describes the requirements for
acceptance after plans have been drawn, submitted, reviewed, and approved. These requirements include
public dedication of the right-of-way, adherence to approved plans in the construction of the street, proper
maintenance, payment of fees and surety, and execution of all prescribed agreements.’ The last of these
specifically requires that “[t]he governing body’, by proper resolution, requests [VDOT] to accept the street
or streets for maintenance as part of the secondary system of state highways under its jurisdiction.”'®

The regulation unambiguously requires a resolution of the governing body that meets the
specifications provided. It specifically requires action from the governing body and not from the locality
generally or an “appropriate county official,” as contemplated elsewhere in 24 VA. ADMIN. CODE § 30-91-
60.'! Furthermore, the resolution must “include the governing body’s guarantee of an unrestricted and
unencumbered right-of-way as dedicated, plus any necessary easements for fills, drainage, or sight
distance,”'? and that guarantee is specific to the particular street being submitted for acceptance. A county
official cannot make this guarantee without action of the governing body, and a general resolution
purporting to give blanket authority would not provide the specific guarantee required by the regulation.

The procedure for submitting new subdivision streets for acceptance into the secondary system is
summarized in 24 VA. ADMIN. CODE § 30-91-150, in the Chapter’s Reference Section. In subsection (3), it
states: “In the absence of any other formal acceptance, the governing body's resolution requesting [VDOT]
to accept a street for maintenance as part of the secondary system of state highways completes the
dedication and is deemed to constitute the governing body's acceptance of the street.”

4 Bd. of Supervisors v. State Bldg. Code Tech. Review Bd., 52 Va. App. at 466, citing Va. Real Estate Bd. v. Clay,
9 Va. App. 152, 160-61 (1989).
5 See Bd. of Supervisors v. State Bldg. Code Tech. Review Bd., 52 Va. App. at 466.

6 N. View Home for Adults, LLC v. Va. Dep't of Health, No. 1006-20-2, 2021 Va. App. LEXIS 82 at *9 (Unpub.,
Ct. App. May 18, 2021), quoting Williams v. Commonwealth of Va. Real Est. Bd., 57 Va. App. 108, 135 (2010)
(citation omitted).

7 Davis v. Davis, 298 Va. 157, 172 (2019), quoting Lee Cty. v. St. Charles, 264 Va. 344, 348 (2002). Although 24
VA. ADMIN. CODE §§ 30-91-60(E)(7) and -150(B)(3) are regulations, they are authorized by the General Assembly,
and the “plain meaning” rule of construction still applies. See Peed v. Va. DOT, 72 Va. App. 686, 696 (2021) (applying
the “plain meaning” rule to Rules of the Supreme Court of Virginia).

824 VA. ADMIN. CODE § 30-91-60(E).

° “Governing body means the board of supervisors of the county ...” 24 VA. ADMIN. CODE § 30-91-10.
1094 VA, ADMIN. CODE § 30-91-60(E)(7).

'! See subsections (A), (B), (D).

1294 VA. ADMIN. CODE § 30-91-60(E)(7).

Elizabeth D. Teare
May 8, 2026
Page 3

While you have ‘suggested that this provision provides for alternative means of requesting
acceptance other than board resolution, the plain language belies that interpretation. This provision assumes
that the governing body has already passed its resolution requesting acceptance and has been, in accordance
with 24 VA. ADMIN. CODE § 30-91-60(E), “officially advised of the street's acceptance into the secondary
system of state highways and the effective date of such action.” In that case, under 24 VA. ADMIN. CODE §
30-91-150(3), no other formal acceptance is required in response to that notification, and the governing
body’s resolution is its final act in the process. The regulation does not contemplate some manner of
requesting acceptance other than the governing body’s resolution; rather, it contemplates the possibility of
(but does not require) some additional acceptance by the county of VDOT’s inclusion of the street in the
secondary system.

Conclusion

Accordingly, it is my opinion that the plain language of 24 VA. ADMIN. CODE § 30-91-60(E)(7)
requires a resolution from the governing body, and a request made by a county official on the governing
body’s behalf does not satisfy the requirement. Also, 24 VA. ADMIN. CODE § 30-91-1503) does not
contemplate an alternative method of satisfying the requirement in 24 VA. ADMIN. CODE § 30-91-60(E)(7).

Sincerely,

Jay Jones
Attorney General