2.2 – Town Incorporation via Judicial Proceedings

Chapter 36, Title 15.2 of the VA Code establishes the legal basis and process for statutory town incorporation via judicial proceedings. The primary requirement for authorizing the incorporation of a community is a minimum population of 1,000 inhabitants. In the case of the community of Massanutten (CDP), the 2010 U.S. Census found a population of 2,291 people — thus, this requirement for town incorporation has already been met.

The process for statutory town incorporation starts with residents of any community initiating an action by filing a petition to the County Circuit Court, in which the community is situated, requesting that community be incorporated as a town. Chapter 36, Title 15.2-3600 states that the petition must be:

  • signed by at least 100 voters residing in the area to be incorporated;
  • accompanied by a plat prepared by a registered surveyor showing the boundaries of the proposed town in a form suitable for recording in the Clerk’s Office of the Circuit Court;
  • served upon the County Attorney and each member of the governing body of the County; and,
  • proof that the petition has been available for public inspection in the Clerk’s Office of the Circuit Court and proof that a published notice (once a week for four successive weeks in a newspaper having general circulation in the County) of the time & place the petition will be presented along with a descriptive summary of the petition and notice the petition may be inspected at the Clerk’s Office.

This seems fairly simple. One gets a petition signed by 100 qualified voters along with plat, head down to the local Courthouse and files the petition, and then notifies people what you are up to. However, further examination of the Virginia Administrative Code (VAC) for town incorporation (1VAC50-20-570) and an examination of statutory considerations required by the Court the give a better insight to the greater detail of information which may be needed in the petition. The VAC suggests the following information:

  1. A written metes and bounds description of the area (a system of measuring real property using the physical features of the local geography along with directions and distances) proposed for incorporation as a town having, as a minimum, sufficient certainty to enable a layman to identify the proposed town boundary. The description may make reference to readily identifiable monuments such as public roads, rivers, streams, railroad rights of way, and similar discernible physical features.
  2. A map or maps showing: (i) the boundaries of the proposed town and their relationship to existing political boundaries; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; and (v) existing uses of the land, including residential, commercial, industrial and agricultural.
  3. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the area proposed for incorporation.
  4. The estimated past, current, and projected future population of the area proposed for incorporation and the county within which the town would be situated.
  5. Information indicating: (i) why the proposed incorporation is desired and in the interest of the inhabitants; (ii) how the general good of the community is served by the incorporation; and (iii) why the services needed within the proposed town cannot be provided by the establishment of a sanitary district, through the extension of existing county services, or by other arrangements provided by law.

The Code of VA (15.2-3602) states a Circuit Court must notify the Supreme Court of VA after a petition for any town incorporation has been filed. The Supreme Court appoints a Special Court consisting of a three judge panel to hear the case for incorporation. For incorporation to be granted, this Court must find that:

  1. The prayer of the petition is reasonable;
  2. The incorporation will be in the best interest of the inhabitants of the proposed town;
  3. The general good of the community will be promoted by the incorporation;
  4. The number of inhabitants of the proposed town exceeds 1,000;
  5. The area of land designated to be embraced within the town is not excessive;
  6. The population density of the county in which such community is located does not exceed 200 persons per square mile according to the last preceding U.S. Census or other census directed by the Court; and,
  7. The services required by the community cannot be provided by the establishment of a sanitary district, or under other arrangements provided by law, or the extension of existing services provided by the county.

The Code of VA (15.2-3601) also states that the Court may request the VA CLG to conduct a review of the proposed incorporation prior to the court’s hearing on the petition. If requested, the CLG will conduct a hearing to determine if the criteria for incorporation have been satisfied. The hearing shall be set no less than thirty days after the CLG receives the petition. At this hearing, all interested parties, including the affected county, may present evidence. The CLG is required to transmit all its findings to the Court in writing. The next subsection will detail the guidelines of the CLG’s review process for town incorporation.

The Code of VA (15.2-3602) further states that if the court determines the criteria for incorporation have been satisfied, the Court will enter an Order incorporating the area described in the petition as a town. Thereafter, the residents of the incorporated area «... shall be a body, politic and corporate, with all the powers, privileges and duties conferred upon and appertaining to towns under the general law ...». The newly incorporated town, however, can perform no municipal services or contract any debt until after its governing body is elected, qualifies, and takes office. A copy of the Order shall be certified by the Court to the Secretary of VA, who shall then certify it to all proper officers of the Commonwealth.

The Court Order incorporating the town will also include provisions for electing the members of the Town’s initial governing body. These will include:

  • The time and the place where the first election of officers shall be held in the Town — the election shall be held at least 90 days from the date of incorporation, but not within 120 days of a general election.
  • The electoral board of the County within which the Town is situated shall, not less than 90 days before the election, determine the qualified voters within the Town, and the County Voter Registrar shall provide appropriate notice.
  • The election shall be for a five (5) member Town Council who will serve until their successors are elected pursuant to the provisions of the Charter granted to the new town by the VA General Assembly.

Until the Charter is granted, the affairs of the Town shall be governed by the general law provisions of the Code of VA.