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BLACKSBURG -- Town officials may have to head back to Montgomery County Circuit Court to argue why Blacksburg doesn't have to build a sewer system in the Toms Creek basin.

Christopher Tuck, attorney for and nephew of longtime basin residents Robert and Geneva Davis, said he will soon file suit to compel the town to provide sewer service to the couple's house on Toms Creek Road. It will be the second such lawsuit the couple has filed in the past year.

The Davises had at various times negotiated with the town about fixing or replacing their septic system, but these discussions broke down.

C. Givens Brothers LLC lost a similar suit last week when Circuit Judge Bobby Turk reaffirmed his ruling that the statute of limitations on any sewer obligation Blacksburg had from the annexation long ago ran out.

The Davises withdrew their first suit last year while waiting on a decision in the Givens Brothers case.

Blacksburg annexed 15 square miles of the largely rural basin in 1972 and promised in that agreement to extend public sewer service to that area within three years. But that didn't happen, though the town did extend sewer lines to some subdivisions.

Tuck said he will file a new suit for the Davises on slightly different grounds than the Givens Brothers case. And if he doesn't win in circuit court, he'll appeal to the Virginia Supreme Court, he said.

"We are going to be the lawsuit that doesn't go away," Tuck said.

Two years ago, Blacksburg councilman Tom Sherman voted against building a conventional sewer system in the basin.

He said Thursday that he had no comment on the Davises' pending suit.

Asked if he thought the town had some responsibility to provide more sewer service to the basin, Sherman pointed to an ongoing consultant study of the existing system.

"I think we need to see what comes out of that before saying what needs to be done," Sherman said.

In talks with the town over a number of years, the Davises have made several offers to solve their septic problem, including giving control of their septic system to the town. In that case, the Davises offered to pay regular sewer maintenance fees.

But the discussions have come to an impasse, according to Tuck.

Tuck has maintained that the Davises don't want to develop their property, they just want public sewer service or a new septic system.

As for his own motivation, "I am getting paid in macaroni salad and fruitcake," Tuck said. "I don't want people to think I'm doing this for the wrong reasons."

Tuck also provided to The Roanoke Times a copy of a letter dated July 16, 1999, from former Town Attorney Kathleen Dooley to the Davises.

The letter is in response to concerns raised by the couple about the condition of their septic system and the town's plans to extend sewer service to the basin.

Dooley wrote that the town's comprehensive plan, basically its development guide, called for a sewer system in the basin that would cost about $17 million.

The letter estimated that construction would begin on the system in 2003 or 2004.

Dooley also wrote that there was much opposition to the system, which might slow down the project.

It did. Three pro-sewer candidates lost decisively in the 2004 council town elections, effectively killing the sewer plan.

Tuck said he will officially notify the town early next week of his intent to file a suit.