The Roanoke Times | File

This is the area where Norfolk Southern plans to build an intermodal shipping facility near the Roanoke County/Montgomery County line. At the bottom is the old Wilson's Truck Stop property near the U.S. 460 bridge.

Montgomery County officials on Tuesday announced plans to file suit against the state over its plan to spend $40 million in public funds on the Norfolk Southern intermodal facility in Elliston, saying it violates the state constitution's prohibition on spending state money on private industry.

Supervisor Gary Creed said the county is expecting to pay as much as $250,000 in legal fees to pursue the case, which he described as a confrontation over how public money can be spent.

"The truth is, if Norfolk Southern was doing this with all their money, there's nothing in the world that would stop it," Creed said.

Transportation Secretary Pierce Homer, who announced Aug. 19 that Elliston had been chosen as the $50.5 million project's location, could not be reached for comment Tuesday. Norfolk Southern spokeswoman Susan Terpay declined to comment, citing the pending litigation.

An intermodal rail yard transfers trailer-sized containers between trucks and rail cars. A state study says the yard itself will employ about a dozen people. Businesses attracted by the rail yard could generate anywhere from 740 to 2,900 jobs in a nine-county, five-city area, according to the study.

The $50.5 million price tag for the site includes about $40 million in public funds set aside to help build a highway that will connect the site to Interstate 81. But the state has promised to cover 70 percent of the facility's costs as well.

Article X, Section 10 of the state constitution bars governments from spending taxpayer dollars on "any work of internal improvement" for a private industry. The constitution makes exceptions for building roads.

The timing of the announcement -- just a week after state officials announced plans to locate the facility in Elliston -- underscores the broad opposition to the proposal that both county officials and activists have mounted since 2006.

The decision to file suit was made during a two-hour closed session Monday night, and Creed, as well as Supervisors John Muffo and James Politis, said there were no objections from the board to go through with the lawsuit.

Supervisors could make the decision to file suit in closed session because consulting with attorneys in private about probable litigation is permissible under state Freedom of Information Act, and because the decision was a consensus that did not require appropriating funds.

The facility would be part of the Heartland Corridor, a $249 million project that aims to move doubled-stacked freight containers between Columbus, Ohio, and Norfolk faster and more efficiently. But Muffo said the low-tech jobs that the intermodal facility would bring "contradicts everything in the economic development plan" the county follows.

"We have had companies come to us and we've turned them away that have offered better jobs than this because it didn't fit for us," he said.

Supervisors have felt intense pressure from Elliston residents who worry that the facility will diminish the community's rural charm and bring increased traffic to the area. On Monday night, an Elliston resident told supervisors during public comments that she wished they could "find some wonderful little endangered species" that could block the facility.

University of Richmond law professor Carl Tobias said a lack of those sorts of technicalities is likely why the county is resorting to a constitutional challenge. Asking judges to consider cases such as the one the county is bringing is difficult, he said, because "there's this whole notion to not resolve constitutional issues unless you have to."

"Courts are reluctant to interpret because it's the highest law of the land," Tobias said. "It sounds to me like it's something they haven't been able to win politically by way of the General Assembly, and that shouldn't come as a surprise. Maybe this is all they think they can do, and why not try if people feel very strongly."

If judges decide to take up the county's case, they could examine a 1956 case in which Virginia Supreme Court justices wrote that many states had adopted constitutional provisions similar to the one Montgomery County will challenge because states were suffering big losses from becoming heavily invested in railroads.

"The provision forbidding the State to 'become a party to or become interested in any work of internal improvement,' ... [was] adopted to meet the same long existing threat and danger, namely, the use of the State's funds and credit to foster and encourage construction and operation of private enterprises," justices wrote.

But with few challenges to that constitutional provision, it's not clear what the county's chances are at fighting the state.

"It's David versus Goliath, there's no question about it," Muffo said.

County Attorney Marty McMahon said he expected to file the suit sometime next week.