Attorney says town code ambiguous on utility extension

A deal between Front Royal and Warren County over the U.S. 340-522 Corridor might or might not violate town code.

Front Royal’s rules and procedures for providing water and sewer service outside the corporate limits remain open-ended, Town Attorney Doug Napier said Thursday.

Whether or not the memorandum of agreement violates Front Royal’s rules on supplying water and sewer to users outside corporate limits did not keep Town Council from approving the deal Monday. Part of the agreement calls for the town to supply water and sewer to users in the as-yet-developed Crooked Run West up to a certain amount per customer. The condition added by the county during the negotiations became a sticking point for at least two council members.

Councilman Bret Hrbek and Councilwoman Bébhinn Egger contended in their opposition to the deal that the condition requiring the town to supply water and sewer to Crooked Run West violated the regulations that govern utilities provided to properties outside corporate limits.

Town code states that any request for water and/or sewer services must be made in writing to the town manager, accompanied by a joint request from the property owner and the county to be boundary adjusted into the town limits or justification for a utility extension only.

“That’s where the thought is coming from that if you’re going to ask for an extension of water and sewer into the county, you have to ask contemporaneously with that request for a boundary adjustment,” Napier said. “It could be read that way. It could also be read some other way.”

The town had not yet received a request for utilities by any property owner seeking to build in Crooked Run West, officials have said.

However, the code section also states that “the town may elect to provide water and/or sewer services without a boundary adjustment where the Town Council determines it would not be feasible or appropriate to provide other Town services to the property.” Council thwarted an effort by Hrbek to bring town and county officials to the table to discuss the possibility or feasibility of a boundary adjustment that he said would solve the matter without the agreement.

“The question is do you have to first ask for a boundary adjustment or can Town Council decide that it would not be feasible or not appropriate for the town for whatever reason and simply dispense with that right up front,” Napier said. “So that’s where, in my mind, it’s somewhat ambiguous … and that’s a judgment call on the part of Town Council.”

Interpretation of the code falls to Town Council, Napier said. The courts defer to council’s interpretation if deemed reasonable, he added.

“When there’s a reasonable ambiguity, [council members] determine how they want to read it,” Napier said.

At one point Hrbek and Egger tried to convince council to set a public hearing for the purpose of nixing the code section altogether, claiming members had violated the rules anyway by approving the deal.

Councilman Eugene Tewalt said at the meeting he didn’t feel the condition violated town code. No other members voiced their opinions on the subject. Despite Egger and Hrbek’s vocal opposition, neither they nor other members asked Napier for his advice as council debated the matter in the meeting.

While the town initiated the negotiations that created the memorandum of agreement, council ultimately signed a deal that reflects the county’s additional terms. The county agrees to give the town the equivalent of 30 percent of the meals taxes and 5 percent of the lodging taxes collected from the corridor as established in a 1998 agreement. Crooked Run West does not fall within the boundaries of the 1998 agreement. As Napier explained in an email Thursday, the recently approved agreement seeks to expand the area in which the town can collect Payments in Lieu of Taxes for food, lodging and other levies where utilities are extended.

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or abridges@nvdaily.com