City of Roanoke v. Roanoke County

• Decision Date: 04 March 1963
• Docket Number: No. 5427,5427
• Citation: 129 S.E.2d 711,204 Va. 157
• Parties: CITY OF ROANOKE v. COUNTY OF ROANOKE, ET AL. Record
• Court: Virginia Supreme Court

Page 711

129 S.E.2d 711

204 Va. 157

CITY OF ROANOKE v. COUNTY OF ROANOKE, ET AL.

Record No. 5427.

Supreme Court of Appeals of Virginia

March 4, 1963.

Kossen Gregory and Samuel H. Williams (Randolph G. Whittle, City Attorney; Richard T. Edwards, on brief), for the plaintiff in error.

W. H. Jolly and John H. Thornton, Jr. (Edward H. Richardson, Commonwealth's Attorney; Leonard G. Muse; R. S. Kime, on brief), for defendant in error, County of Roanoke.

(Furman Whitescarver, Sr.; Furman Whitescarver, Jr., on brief, for defendant in error, Roanoke County Sanitation Authority.)

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

On December 10, 1959, the city of Roanoke, pursuant to the provisions of Title 15, Chapter 8 of the Code of 1950, as amended, instituted annexation proceedings against the county of Roanoke. Roanoke County Sanitation Authority was made a party defendant. The county and the authority filed responsive pleadings to the city's petition. They, along with numerous intervenors, vigorously opposed annexation of the territory sought. From the order denying annexation of any of the areas and dismissing the petition, the city of Roanoke appealed.

The annexation court was constituted in accordance with the provisions of § 15-152.8. It was composed of three able jurists and each judge had previous experience in the trial of annexation cases. After a number of pre-trial conferences the hearing on the issues involved commenced on February 8, 1961. The county's motion to dismiss the proceedings at the conclusion of the city's evidence was overruled by a divided court. The proceedings concluded on May 19, 1961, at which time the final order complained of was entered. It provides in part:

'* * * after carefully considering the views taken of the area proposed to be annexed and the views of the City and County, and upon weighing and evaluating the evidence presented in this case, including the various and sundry exhibits introduced by the parties hereto and the arguments and memoranda of counsel, [the court] is unanimously of the opinion that considering the best interests of the County, the City, the best interests, services to be rendered and needs of the area proposed to be annexed, and the best interests of the remaining portion of the County, that the burden of proof of showing the necessity for and expediency of annexation of the area sought, or any part thereof, has not been borne by the City of Roanoke and that annexation of such area, or any part thereof, is not necessary or expedient, it is, accordingly, ORDERED that the petition for annexation filed by the City of Roanoke be, and the same is hereby dismissed at the costs of the City of Roanoke, * * *.'

According to the city, the principal question involved in this appeal is whether the evidence established necessity for and expediency of annexation of any portion of the areas requested.

The printed record contains 2,011 pages and there are numerous exhibits not included in the printed record. It is manifest that it is not practicable to set out all of the evidence adduced, not only because of its volume but also for the reason that much of the evidence was technical, statistical and hypothetical.

On November 9, 1959, the city council of Roanoke enacted by a five to two vote an ordinance declaring the necessity for and expediency of annexation of certain territory in Roanoke county adjacent to the corporate limits of the city on the north, south and west, which embraced 31.23 square miles. The territory sought was described by metes and bounds and the reasons for the necessity and expediency of annexation of it were set forth therein. A general statement of the terms and conditions upon which the city desired to annex and the provisions planned for the future improvement of such territory were stated. The ordinance directed the city attorney, the city manager and special counsel engaged for the purpose to institute the necessary legal proceedings, which was done on December 10. All of the proceedings thereafter appear to be regular and no question is raised as to them on appeal.

The city of Roanoke has expanded its corporate boundaries eight times since the initial annexation proceeding brought in 1882. The last proceeding was concluded in 1949, when 11.83 square miles were annexed. From that time to 1960 the city's population increased by 4,594 making a total population of approximately 97,000. During the same period the population of Roanoke county, including the towns of Vinton and Salem, increased from 41,486 to 61,462. The city's present corporate boundaries contain 26.18 square miles and the county has an area of 276 square miles. There were 17,357 persons residing in the 31.23 square miles requested to be annexed of which 3,853 were school children. Ninety per cent of the children ride school buses. The assessed values in such territory in 1960 amounted to $40,619,920. The areas comprise about 40 per cent of the county's taxable revenues and approximately 28 per cent of the school population.

Much of the territory sought by the city is served by sewer lines operated by the Roanoke County Sanitation Authority, which under a contract with the city deposits the raw sewage into the city's sewage disposal plant. The contract was entered into at the instance of the city. The county had contemplated constructing its own disposal plant, but this arrangement with the city was more economical for all concerned. According to James A. Beavers, secretary and treasurer of the Authority, the Authority has about 2,300 connections in the annexation areas. The city serves 267 users directly and there are 3130 septic tanks and 180 privies.

The county has no water system of its own. In the proposed areas to be annexed there are 27 private water suppliers with 2850 customers. The city serves 556 and the remainder of the inhabitants are served by wells and other sources.

The towns of Vinton and Salem located in the county have their own fire departments. The county is also served by volunteer fire departments located therein. The city has cooperated when its services were needed. The city has 1872 fire plugs and 34 of them are located in the county principally on Hershberger road, which is along the present corporate line.

The county has a sheriff, 10 deputy sheriffs and 2 police officers. The employment of two additional police officers has been authorized. There are 12 state troopers assigned to the county for traffic control and investigations.

The county furnishes garbage collections for a small monthly charge.

Section 15-152.11, Code 1950, as amended, provides in part:

'(a) The court shall hear the case upon the evidence introduced as evidence is introduced in civil cases.

'(b) The court shall determine the necessity for and expediency of annexation, considering the best interests of the county and the city or town, the best interests, services to be rendered and needs of the area proposed to be annexed, and the best interests of the remaining portion of the county.'

Generally, the fundamental question in annexation cases is one of fact to be decided in accordance with the mandate of subsection 'b', supra. In previous decisions we have stated the principles to be followed and the tests to be applied in determining whether there is the 'necessity for and expediency of' annexation. Recently, in Rockingham County v. Timberville, 201 Va. 303, 110 S.E.2d 390, and in Fairfax County v. Town of Fairfax, 201 Va. 362, 111 S.E.2d 428, we discussed those principles and tests in some detail. See also Henrico v. City of Richmond, 177 Va. 754, 15 S.E.2d 309.

'The weight to be given the decision of the lower court is clearly reiterated in the case of Henrico County v. Richmond, 177 Va. 754, at pages 781-782, 15 S.E. (2d) 309. If there is credible evidence to support the judgment of the court it must be sustained. However, the court may not disregard any of the evidence or inferences which may be properly drawn therefrom, but will consider all of the evidence in the record. A presumption of correctness attends the decision of the court below on questions of fact. On the other hand, if the decision is not supported by the evidence, it should not stand.' Town of Narrows v. Giles County, 184 Va. 628, 634, 35 S.E.2d 808.

The onus is upon the city or town to show the necessity for and expediency of annexation, taking into consideration the best interests of the county, the city or town, and the area sought to be annexed. Rockingham County v. Timberville, supra, 201 Va. at p. 307, 110 S.E.2d at p. 394; County of Chesterfield v. Berberich, 199 Va. 500, 502, 100 S.E.2d 781.

In Fairfax County v. Town of Fairfax, supra, we said:

'In determining whether annexation is necessary and expedient for a city or town, factors to be considered are its size, its crowded condition, its past growth, its need in the reasonably near future for development and expansion, the health of the community, whether the terms proposed are reasonable, fair and just, and whether proper provision will be made for future management, Henrico County v. City of Richmond, 106 Va. 282, 284, 295, 55 S.E. 683, 117 Am.St.Rep. 1001; Alexandria v. Alexandria County, 117 Va. 230, 234, 84 S.E. 630; and Rockingham County, etc., et al. v. Town of Timberville, supra, 201 Va. 303; the result of the development promised by the combination of the resources of two urban communities under a single political unit in the light of the best interests of the State, the town, or city, the county, and the territory proposed to be annexed, Warwick County v. Newport News, 120 Va. 177, 193, 90 S.E. 644; County of Norfolk v. Portsmouth, 186 Va. 1032, 1045, 45 S.E.2d 136; community of interest, if any, between the town or city and the area proposed to be annexed, Alexandria v. Alexandria County, supra, 117 Va. page 241; County of Norfolk v. Portsmouth, supra, 186 Va. page 1045; Falls Church v. Board...