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Matt Gentry | The Roanoke Times

Workers build a home in Northside Park subdivision in Blacksburg, which is in the Toms Creek basin.

Toms Creek sewer timeline

• 1973: Blackburg Town Council annexes 15 square miles of the Toms Creek Basin and agrees to provide public sewer services there within three years.
• 1980s: A group of farmers living in the basin threatens to file a de-annexation suit over the lack of sewer service.
• 1985: After extending to sewer to some basin subdivisions, council passes an ordinance declaring its sewer obligations fulfilled.
• 2004: Council attempts to build a large-scale conventional gravity sewer through the basin. Costs are estimated at $17 million or more. More than 20 percent of voters turn out in the May council election. Two pro-sewer council members are voted out, and council cancels the sewer project.
• 2005: C. Givens Brothers LLC and basin residents Robert and Geneva Davis file a suit asking that Blacksburg be compelled to build a sewer in the basin. Judge Bobby Turk rules that the plantiffs waited too long to press their claims.
• 2006-07: C. Givens Brothers appeals Turk’s ruling to the Virginia Supreme Court.

C. Givens Brothers LLC wants to expand the Northside Park subdivision and hopes a court will force Blacksburg to build a sewer.

Today the Virginia Supreme Court will take up Blacksburg's decades-long Toms Creek sewer debate, a dispute that in 2004 fueled a resident revolt and fundamentally altered the political makeup of the Blacksburg Town Council.

C. Givens Brothers LLC, a family company that created the Northside Park subdivision and owns large tracts of undeveloped land onto which it wants to expand the neighborhood, is asking the court to hold council to a decades-old promise to extend public sewer service to the Toms Creek Basin.

The Toms Creek watershed covers the northwest part of town and contains areas that have both the lowest and among the highest population densities in Blacksburg. The area east of the U.S. 460 bypass, which encompasses Northside Park, is home to large apartment complexes and neighborhoods. The area west of the bypass, the section commonly referred to as the Toms Creek Basin, contains subdivisions, scattered houses and farmland.

Givens Brothers filed suit in 2005, asking the town to honor a 1973 annexation decree.

That agreement transferred 15 square miles from Montgomery County to Blacksburg and required the town to build a public sewer system by 1980. The town eventually extended sewers to some subdivisions.

But Montgomery County Circuit Judge Bobby Turk ruled in 2005 that Givens Brothers had waited too long.

"It would be inconceivable to believe ... annexation orders could be left in effect ad infinitum for any future landowner down the line ... to attempt to enforce," Turk wrote in his decision.

So the company appealed to the Supreme Court, which could order a new hearing in Montgomery County.

Reached Monday at his West Virginia home, Givens Brothers principal Carroll Givens said he doesn't think the statute of limitations should apply.

The town has said "it doesn't have to sewer ... the basin until some development requires it. Then when it gets to where development requires it, they say, 'Well, you've waited too long.'

"We all need an answer. Did we in fact forfeit our right because we didn't push the issue way back when? I sure hope that's not the case," Givens said.

A brief filed by a group of longtime basin landowners, one part of a family that has owned property there since the 1700s, argues they deferred legal action because the town led them to believe a sewer would be built.

Blacksburg Mayor Ron Rordam, who in the past has opposed building a conventional sewer in the basin, declined Monday to comment on an ongoing legal matter.

As late as 2004, council was planning to build a Toms Creek sewer. But maneuvering by pro-sewer council members, including circumventing the town charter to approve funding, soured many on the project.

A loosely organized coalition opposed the plan, saying it would cause irreparable harm to Toms Creek and spur runaway development. That group grew into the powerful political action committee Citizens First, whose endorsees are now the council majority.

Two Citizens First members who live in the basin, Chuck Rogol and Harriett Cooper, filed suit to stop the sewer. Before that could get to court, however, voters swept two of the four pro-sewer council members out of office, ending the project.

Givens Brothers filed its original suit in 2005 after the new council voted down the company's request to rezone 121 acres off North Main Street for a high-density planned residential development.

Carroll Givens pledged then to build homes on the site under the current zoning, which allows four houses per acre.

But he's been unable to build any, he said, because there's no public sewer nearby. And he doesn't want to build traditional septic systems.

"The only thing that works well over the long run is public sewer," Givens said.

Most new developments in the basin, such as the high-end Village at Toms Creek project, use alternative on-site sewer systems. Other developments use traditional septic tanks and drain fields.

But soil in the basin is not ideal for septic systems. Failing systems would cause pollution and property damage.

Citizens First has not filed a brief in the Givens case. But President David Britt said Monday that the group still opposes a conventional sewer that would cross several sections of Toms Creek.

"It would be overly disruptive to the creek and the environment," Britt said.

But whether or not basin residents get additional sewer lines, Carroll Givens said he's sure council will expect them to continue to pay town taxes.

And to Givens, that's akin to "taxation without representation."

For more background on the issue, click here.