Section 120. Right-of-way width, spite strips, and encroachments

A. Right-of-way width. A clear and unencumbered right-of-way shall be dedicated to public use for any subdivision street proposed for addition to the secondary system of state highways maintained by the department. However, in certain, rare extenuating circumstances involving a party beyond the influence of the developer, an easement for transportation purposes may be approved by the resident engineer in lieu of dedicated right-of-way. In all other cases, any easement that might interfere with the public's unencumbered use of the street shall be quitclaimed in exchange for a land use permit, as outlined in 24VAC30-91-110 M 5 (Design and agreement requirements—Utilities).

The width of right-of-way shall be as indicated in the Subdivision Street Design Guide 24VAC30-91-160) and shall be sufficient to include all essential elements of the roadway intended to be maintained by the department, including pedestrian, bicycle, or shared use path facilities and clear zone. However, supplemental easements may be used to accommodate sight distance requirements and slopes for cuts and fills. The right-of-way requirements are defined in the Subdivision Street Design Guide (24VAC30-91-160).

When an existing state maintained road is widened, the additional right-of-way should be dedicated as follows:

1. If the existing right-of-way consists of a prescriptive easement, to the degree that the developer controls the land, the right-of-way shall be dedicated to public use from the centerline of the alignment.

2. If the existing right-of-way is dedicated to public use, the additional right-of-way shall be dedicated to public use.

3. If the existing right-of-way is titled in the name of the department or the Commonwealth, the additional right-of-way shall be deeded to the department or to the Commonwealth, consistent with the title of the existing right-of-way.

B. "Spite strips." Plans that include a reserved or "spite" strip that prohibits otherwise lawful vehicular access to a street from the adjacent properties, whether within or outside the subdivision, will not be approved.

C. Encroachments within the right-of-way. Recording of a plat causes the fee title interest of areas dedicated to public use to transfer to the local governing body. Therefore, objects installed within the right-of-way for purposes other than transportation may be considered an unlawful encroachment in the right-of-way and prevent the right-of-way from being considered clear and unencumbered.

Posts, walls, signs, or similar ornamental devices that do not interfere with roadway capacity or encroach into a clear zone or interfere with prescribed sight distance requirements may be permitted within the right-of-way. However, specific authorization by the resident engineer or as authorized under the Land Use Permit Regulations is a requisite for these devices or any other encroachment located within the right-of-way. For the purposes of this subsection, mailboxes installed on breakaway posts may occupy the right-of-way without permit. Otherwise encroachments that do not fall within the safe clear zone may be allowed within the right-of-way pursuant to a land use permit issued by the resident engineer or other designee.

Historical Notes

Derived from Volume 21, Issue 06, eff. January 1, 2005; amended, Virginia Register Volume 27, Issue 16, eff. May 11, 2011.

Statutory Authority

§§ 33.2-210, 33.2-241, 33.2-326, and 33.2-705 of the Code of Virginia.