Rockingham County v. Town of Timberville

• Court: Virginia Supreme Court
• Writing for the Court: PANSON
• Citation: Rockingham County v. Town of Timberville, 201 Va. 303, 110 S.E.2d 390 (1959)
• Decision Date: 12 October 1959
• Docket Number: No. 4985,4985
• Parties: ROCKINGHAM COUNTY, etc., et al. v. TOWN OF TIMBERVILLE. Record

Page 390

110 S.E.2d 390

201 Va. 303

ROCKINGHAM COUNTY, etc., et al. v. TOWN OF TIMBERVILLE.

Record No. 4985.

Supreme Court of Appeals of Virginia.

Oct. 12, 1959.

Archibald G. Robertson and Harry Frazier, III (Charles E. Earman, Jr., Commonwealth's Attorney; Russell M. Weaver; Hunton, Williams, Gay, Moore & Powell; Wharton, Aldhizer & Weaver, on brief), for the plaintiffs in error.

Lawrence H. Hoover, for the defendant in error.

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

The town of Timberville, located in Rockingham County on a branch of the Shenandoah River, with a land area of 187 acres and a population of 320, instituted this proceeding to extend its corporate limits so as to include 724.88 acres to the south of the town and 23.60 acres to the northwest, which territory has a population of 730, numerous industries, business enterprises, and several hundred acres of farm land within its boundaries.

Rockingham County, and interveners Rockingham Poultry Marketing Cooperative, Inc., Shen-Valley Meat Packers, Inc., National Fruit Product Company, Inc., and six other business enterprises located in the annexation area opposed the proposed annexation.

The evidence was heard by a three-judge court, pursuant to § 15-152.8, Code of 1950, 1956 Replacement Volume, and from its order granting the annexation of the whole area sought we granted a writ of error and supersedeas.

The county and the interveners contend in their assignments of error that: (1) The evidence does not support the finding of the trial court that the annexation is necessary and expedient; (2) The town has not proved that it has substantially complied with the conditions of the last annexation proceeding; and (3) The court erred in holding that it had no power to require the town to compensate the county for its loss of net tax revenues.

The Town of Timberville was chartered as a municipality in 1894. It is located on both sides of the Shenandoah River, with its largest area on the north side of the river, and is fourteen miles from the City of Harrisonburg. State highway route 42 runs through the town and the annexation area.

The United States census figures show the population of the town in 1910 was 240; in 1920-277; in 1930-302; in 1940-253; and in 1950-271. In 1950, through annexation proceedings 140 persons were added to the town's population and in 1957, at the time of the institution of this proceeding, the population was 320.

Within the town's present boundaries are 54 diesirable building sites in an area described by one of its own expert witnesses as most logical for residential development.

No sewerage facilities are provided by the town. About fifty houses are served by individual septic tanks and drain fields, about sixty-eight houses, business establishments, and the county-owned and operated elementary school discharge raw sewage into Honey Run and the Shenandoah River, and the few remaining houses have outside privies.

The State Water Control Board has directed the town to cease the dumping of raw sewage into Honey Run and the Shenandoah River, but it has delayed the execution of its directive awaiting the outcome of this annexation proceeding.

Sewage from many of the residences in the Driver subdivision, which is located in the annexation area, is collected and treated in a small sewage disposal plant and the remaining residences have private septic tanks. Most of the residences in the other parts of the annexation area are served by private septic tanks and drain fields. A few privies are located in the remot southeastern section.

The major industries in the annexation area have taken care of their sewerage problems by the installation of a system which is in full compliance with the regulations of the State Water Control Board.

Water has been supplied the town since 1915 by the Timberville Water Corporation, a privately owned corporation, with the town owning 50 of the 224 outstanding shares of stock. Since 1951 the town has had an option to purchase the remaining stock, but has not exercised it. The water company also supplies 93 percent of the residents of the annexation area, but it lacks the supply and distribution facilities to serve the industries in the area and they have installed a system to serve their needs at a cost of $184,000.

Fire protection in both the town and the annexation area is furnished by a volunteer fire department which was formerly located in the town but is now in the commercial development of the annexation area just south of the town line. Financial support is provided by contributions from the town, county and industries in the annexation area. Additional protection is available from the volunteer fire department at Broadway, about two miles away, and county-owned equipment. The size of the distribution pipes of the water system does not permit efficient fire fighting.

The town has a policeman on part-time duty, while police protection in the annexation area is provided by the sheriff's department of the county, with a deputy sheriff residing in the Driver subdvision, and the Virginia State Police, which has proved to be adequate.

The town has adequate street lighting. Except for an occasional light at important intersections the residential annexation area is not lighted.

Dry trash is collected in the town once every three months, but there is no provision for the collection of garbage. Weekly trash and garbage collections are available under a private contract in the annexation area.

A first-class recreation facility, owned by the Plains District of the county and located in the annexation area, is supported by contributions of individuals, industries and the towns of Timberville and Broadway.

The development of the annexation area began in 1940 with the location of the Rockingham Poultry Marketing Cooperative, one of the interveners in this proceeding, on the river in the annexation area. Many other industries followed and they are all located in a well-defined area generally removed from the other portions of the residential annexation ares as well as from the town.

The major industrial plants do not depend upon the town or the annexation area for their workers. Of the 870 regular employees of several industries in the annexation area only 4 per cent reside in the town, 10 per cent in the annexation area, and the remaining 86 per cent elsewhere. Less than 2 per cent of the residents of the annexation area are employed in the town.

Attracted by the new industries and their employees, twelve of the town's sixteen business establishments moved across the Shenandoah River just outside of the town line, and within the annexation area, leaving vacant buildings in the heart of the town.

Less than one-third of the residents of the annexation area use the few remaining businesses in the town for the purchase of gasoline, hardware, garden supplies, and the services of the barber shop and beauty parlor; while the residents of the town use the services of the bank, post office, drug store and other businesses which moved from the town to the annexation area. Sixty-four per cent of the people in the annexation area attend churches located in the town, and 45 per cent are connected with town clubs and lodges. Children from both the town and the annexation area attend the county elementary school, which is located in the town, and the county high school in Broadway.

When one approaches the area from either side of the town he gains the impression that it is one community.

The town is free of debt, and its balance sheet shows cash in the amount of $11,000 and total assets of $22,000.

From our view of this case it is only necessary that we direct our attention to the first contention of the county and the interveners that the evidence does not support the finding of the...