County of Norfolk v. City of Portsmouth

45 S.E.2d 136, 186 Va. 1032, 1947 Va. LEXIS 221
CourtSupreme Court of Virginia
DecidedNovember 24, 1947
DocketRecord No. 3241
StatusPublished
Cited by25 cases

This text of 45 S.E.2d 136 (County of Norfolk v. City of Portsmouth) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County of Norfolk v. City of Portsmouth, 45 S.E.2d 136, 186 Va. 1032, 1947 Va. LEXIS 221 (Va. 1947).

Opinion

Staples, J.,

delivered the opinion of the court.

By this appeal the County of Norfolk, appellant, seeks ■the reversal of a decree of the circuit court of that county, directing to be annexed to the City of Portsmouth, appellee, certain lands adjacent to said city and now lying in said county. The case was tried before three judges, as re[1037]*1037quired by law, Judge Edward L. Oast, of the Norfolk County Circuit Court, Judge F. S. Crosby, of the Circuit Court of Augusta County, and Judge F. E. Kellam, of the Circuit Court of the City of Portsmouth. Judges Crosby and Kellam concurred in the decree appealed from while Judge Oast dissented. Both a majority opinion and a minority one dissenting therefrom were filed. The only questions raised by the assignments of error are whether the circuit court erred in its conclusion (1) that the proposed annexation is necessary and expedient and should be directed by the court, and (2) that annexation Areas No. 1 and No. 2 should be considered, after annexation, as a single unit rather than two separate annexations. Two tracts of land are involved, designated as “Area No. 1” and “Area No. 2”, respectively.

Area No. 1 is a residential section and contains about 2000 acres, substantially all of which has been subdivided into lots which have been closely built on. Its streets are improved and hard surfaced. It has a population of about ten thousand, and its real estate is assessed for taxation by the county at over six and one half million dollars.

Area No. 2 is almost entirely industrial, having only about sixty residents. It consists of approximately one thousand acres, of which the greater part is embraced in the Naval Reservation. All of its streets are hard surfaced. The land in this area is almost fully occupied by industrial establishments with relatively little room for additional ones unless they replace some of those now existing. It is situated on the opposite side of the city from the other area.

No complaint is made by appellant with respect to the sufficiency of the services which the city is required to provide under the terms of the annexation ordinance and the court’s decree. They call for the installation of modern and adequate sewerage facilities in Area No. 1, including a pumping station, an additional 48 inch pipe line, and a sewage treatment plant. Septic tanks are now used in a [1038]*1038large part of the Westhaven section of this area. The discharge of affluent from the sewers in the Waterview District into the Western Branch is deemed objectionable and it will be conducted by the new city pipe line to empty in the channel, by the flow of which it will be carried into the Atlantic Ocean. The majority opinion of the Circuit Court held this required service in the field of adequate sewerage to be a valuable contribution to this annexation area, and that, in addition, the city’s excellent fire and police departments should prove highly beneficial to both annexation areas.

In support of the county’s position that the finding of the majority of the court that it is necessary and expedient for Portsmouth to annex either one or both of the two areas is erroneous, a number of different reasons being advanced.

In the first place it is said that the residents and property owners of both annexation areas are vigorously opposed thereto. This is not surprising. A like condition has existed in nearly every effort of a Virginia city to annex suburban areas, begining with Alexandria v. Alexandria County, 117 Va. 230, 237, 84 S. E. 630, but such opposition has never been held a sufficient ground to deny annexation when the requisite conditions exist. A principal reason for such opposition by residents of proposed annexation areas is the necessity for higher property taxes to support the many additional services in the fields of health, fire, and police protection, garbage collection, lights, streets, sidewalks and sewers, parks and playgrounds, as well as many other facilities incident to the government of a city. While some of these are found in rural governments, they generally are on a much more limited scale as is true in this case. Portsmouth did not undertake to refute the fact that such opposition existed among the residents of Area No. 1. One of its chief expert witnesses, Dr. Thomas H. Reed, a distinguished authority on the subject, was asked whether he was familiar with the system of local government in Virginia, to which he replied:

[1039]*1039“Yes, I became interested in that quite early in my studies of metropolitan government, because the system in Virginia is peculiar in two respects.
“In the first place, it makes as nearly as complete separation as could possibly be made between urban and rural local governments, as the cities being divorced from the county in which they are physically located, but to all intents and purposes the cities themselves have provision for annexation which is more rational and more practical in Virginia than anywhere else; that is, annexation in Virginia, as you know, is a court proceeding, in which the Court decides on the basis of the evidence presented as to the necessity and expediency of annexation.
“In most other parts of the country annexations are determined by popular vote of the people who are sought to be annexed; the result has been that generally throughout the country, there are no annexations.
“There has not been any very considerable annexation of territory to an important city in the United States, outside of Texas, where they have, I think, an unduly free system of annexation, because down in Texas a city can annex unincorporated territory by a mere resolution of the City Council, which I think goes altogether too far, but in other parts of the country where it is necessary to have a popular vote of the people who are to be annexed in order to bring about annexation, annexations simply do not occur, and very serious consequences have resulted from that.
“Q. The line of distinction which you have mentioned between cities and counties in Virginia is almost a unique feature?
“A. Yes, it is practically a unique feature.”

In 1906, about two years after the enactment of the annexation statute, Code 1942, section 2956 et seq., in Henrico County v. Richmond, 106 Va. 282, 299, 55 S. E. 683, 117 Am. St. Rep. 1001, this court found that the legislature had established a policy of annexation by municipalities as a public necessity, and since that time said policy [1040]*1040has been consistently adhered to and repeatedly approved by this court. The consolidation of contiguous urban areas under one municipal government, when appropriate conditions exist, has been encouraged. Section 126 of the Constitution imposes upon the General Assembly the mandatory duty of enacting legislation to provide for this, and our annexation statutes were passed in discharge of that duty. This policy with respect to municipal government is further exemplified by statutes providing for the conversion of a town into a city of the second class when its population is found to amount to 5000, and for the conversion of such city to one of the first class when its inhabitants number 10,000. Code of Virginia, sections 2896, 2910. See also, Constitution of Virginia, section 116.

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Bluebook (online)
45 S.E.2d 136, 186 Va. 1032, 1947 Va. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-norfolk-v-city-of-portsmouth-va-1947.