Code of Virginia § 33.2-1011. Right to enter on land to ascertain its suitability for highway and other transportation purposes; damage resulting from such entry.

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A. The Commissioner of Highways, through his duly authorized officers, agents, or employees, may enter upon any land in the Commonwealth for the purposes of making examination and survey thereof, including photographing; testing, including soil borings or testing for contamination; making appraisals; and taking such actions as may be necessary or desirable to determine its suitability for highway and other transportation purposes or for any other purpose incidental thereto. Such officers, agents, or servants shall exercise care to protect any improvements, growing crops, or timber in making such examination or survey.

Such officers, agents, or servants may enter upon any property without the written permission of its owners if the Commissioner has requested the owner's permission to inspect the property as provided in subsection B.

B. 1. A request for permission to inspect shall

(i)be on the Commissioner's official letterhead and signed by an authorized officer, agent, or employee of the Commissioner;

(ii)be sent to the owner by certified mail, return receipt requested, delivered by guaranteed overnight courier, or otherwise delivered to the owner in person with proof of delivery;

(iii)be made not less than 30 days prior to the first date of the proposed inspection;

(iv)notify the owner that if permission is withheld, the Commissioner or his duly authorized officers, agents, or employees shall be permitted to enter the property on the date of the proposed inspection. A mere citation of this section number of the Code of Virginia shall not satisfy the requirements of clause (iv). A request for permission to inspect shall be deemed to be made on the date of mailing, if mailed, or otherwise on the date of delivery.

2. A request for permission to inspect shall include

(i)the specific date or dates such inspection is proposed to be made;

(ii)the name of the entity entering the property;

(iii)the number of persons for whom permission is sought;

(iv)the purpose for which entry is made; and

(v)the testing, appraisals, or examinations to be performed and other actions to be taken.

3. If a request for permission is provided in accordance with subdivision 1, the Commissioner or his duly authorized officer, agent, or employee may enter the property sooner than the 30 days indicated in the request only if the owner provides permission, in writing, to enter on an earlier date.

C. Any entry authorized by this section

(i)shall be for the purpose of making surveys, tests, appraisals, or examinations thereof in order to determine the suitability of such property for the project and

(ii)shall not be deemed a trespass.

D. The Commissioner shall make reimbursement for any actual damages resulting from entry upon the property. In any action filed under this section, the court may award the owner his reasonable

(i)attorney fees,

(ii)court costs, and

(iii)fees for up to three experts or as many experts as are called by the condemnor, whichever is greater, who testified at trial if the court finds that the Commissioner damaged the owner's property. A proceeding under this subsection shall not preclude the owner from pursuing any additional remedies available at law or equity.

E. The requirements of this section shall not apply to the practice of land surveying, as defined in § 54.1-400 , when such surveying is not involved in any eminent domain or any proposed eminent domain matter.

Code 1950, § 33-57.2; 1960, c. 491; 1970, c. 322, § 33.1-94; 2007, c. 755 ; 2011, c. 60 ; 2014, c. 805 ; 2019, c. 788 ; 2021, Sp. Sess. I, c. 60 .