Can a Virginia sanitary district build and run community buildings or recreational facilities outside its own boundaries to serve district residents?

Plain-English summary

A delegate asked whether a Virginia sanitary district could operate community buildings and recreational facilities outside its territorial boundaries when doing so would benefit district residents. The AG concluded that the answer is generally no, unless the district has reached an agreement with another jurisdiction under § 15.2-1300.

The reasoning follows Dillon Rule strict construction. Sanitary districts are creatures of statute. The Code authorizes sanitary districts to construct, operate, and maintain certain systems (water, sewer, garbage, power, gas) and to operate community buildings and recreational facilities. Sections 21-113, 21-117, and 21-118 all use language tying the district's operations to "such county" or "the county" in which the district was created. The statutory scheme presupposes the district is contained within a single county.

The district does have express authority to negotiate with other jurisdictions for system connections (§ 21-118(3)) and to enter contracts with other localities or federal agencies for the operation of various services (§ 21-118.4(c)). Section 15.2-1300 also gives political subdivisions broad joint-exercise authority.

So the answer comes out as: alone, no; in cooperation, yes. A sanitary district that wants to operate a community building or recreation facility outside its boundaries has to reach an agreement with whichever jurisdiction the facility would be located in.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The sanitary district statutes in Title 21 of the Code have been amended over time, and the statutory scheme for joint exercise of governmental powers in § 15.2-1300 has been refined. Anyone working on a current cross-boundary facility question should look at the current statutory text.

Common questions

What's a sanitary district?
A geographic subdivision created within a county, often to provide specific services like water, sewer, trash, fire protection, or recreational facilities, with the ability to assess service charges to fund those services. Sanitary districts are creatures of state statute under Title 21.

Why are sanitary districts limited to their boundaries?
Because the Dillon Rule limits a sanitary district to the powers expressly granted by statute, and the statutes describe the district's powers in terms of operations "in" and "within" the district. Power to operate facilities outside the boundaries was not expressly granted.

Can a sanitary district build a park in a neighboring county that its residents drive to?
Not unilaterally. It would need an agreement with the neighboring jurisdiction under § 15.2-1300. The AG cited a 2004 AG opinion that approved a Virginia locality entering into an agreement with a neighboring North Carolina jurisdiction to create a joint water authority. The same kind of cooperative arrangement could let a sanitary district help fund or operate a facility outside its boundaries.

What if a sanitary district owns property in another jurisdiction by deed?
The opinion focuses on operational authority, not property ownership in the abstract. Owning property doesn't override the statutory limits on what the district can use it for. The opinion's bottom line about needing an intergovernmental agreement applies regardless of who holds title.

Can the residents of a sanitary district just use facilities in neighboring jurisdictions?
Yes, as individuals, just like any resident. The opinion is about what the sanitary district itself, as a governmental entity, can do operationally.

Background and statutory framework

Sanitary districts are governed by Title 21 of the Virginia Code. Key provisions cited:

• § 21-113. Authorizes creation of sanitary districts "in and for the county," with the order creating the district specifying boundaries.
• § 21-117. Allows merger of sanitary districts originally "created in any county."
• § 21-118(1). Empowers the governing body to construct, operate, and maintain water, sewer, garbage, power, and gas systems.
• § 21-118(3). Authorizes negotiating and contracting with other persons or municipalities about system connections.
• § 21-118.4(a1). Authorizes operation of community buildings, community centers, and other recreational facilities.
• § 21-118.4(c). Authorizes contracting with persons, firms, corporations, municipalities, counties, authorities, or federal agencies for system services in the district.
• § 21-118.5. Authorizes unified water and sewerage supply for one or more sanitary districts located within the county.

The Dillon Rule application here: Marsh v. Gainesville Haymarket San. Dist., 214 Va. 83 (1973), recognized that the powers and duties of localities in managing sanitary districts are restricted to those specifically granted.

The escape valve for cross-boundary operations: § 15.2-1300, which provides that any power, privilege, or authority capable of exercise by a political subdivision "may be exercised and enjoyed jointly with any other political subdivision of this Commonwealth having a similar power, privilege or authority except where an express statutory procedure is otherwise provided for the joint exercise."

Citations

• Va. Code Ann. § 21-113 (2008)
• Va. Code Ann. § 21-117 (2008)
• Va. Code Ann. § 21-118(1), (3) (2008)
• Va. Code Ann. § 21-118.4(a1), (c) (2008)
• Va. Code Ann. § 21-118.5
• Va. Code Ann. § 15.2-1300
• Marsh v. Gainesville Haymarket San. Dist., 214 Va. 83, 197 S.E.2d 329 (1973)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-073-Athey.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

September 9, 2010

The Honorable Clifford L. "Clay" Athey, Jr.
Member, House of Delegates
35 North Royal Avenue
Front Royal, Virginia 22630

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Delegate Athey:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a sanitary district is authorized to operate and maintain community buildings and recreational facilities outside the boundaries of the sanitary district, when doing so would serve residents of the district.

Response

It is my opinion that a sanitary district is limited to operating and maintaining community buildings and recreational facilities that are located within the boundaries of the district, unless it reaches an agreement with another jurisdiction to operate buildings and facilities outside those boundaries.

Applicable Law and Discussion

The Code allows for the creation of sanitary districts. Once a sanitary district is created, the governing body of a locality where the district has been established is empowered to construct, operate and maintain the water supply, garbage removal, sewerage, and power and gas systems. Other functions of a sanitary district can include the construction, maintenance and operation of "community buildings, community centers, [and] other recreational facilities." The powers and duties of localities in managing sanitary districts are restricted to those specifically granted.

The boundaries of a sanitary district are to be set forth in the order creating the district. The statutory scheme generally presupposes that the districts will be encompassed by a single jurisdiction. Nevertheless, in operating a sanitary district, the governing body is expressly authorized

[t]o negotiate and contract with any person, firm, corporation or municipality with regard to the connections of any such system or systems with any other system or systems now in operation or hereafter established, and with regard to any other matter necessary and proper for the construction or operation and maintenance of any such system within the sanitary district.

Furthermore, once a sanitary district has been created, the governing body of a locality is given the express power to

[t]o contract with any person, firm, corporation, municipality, county, authority or the federal government or any agency thereof to acquire, construct, reconstruct, maintain, alter, improve, add to and operate any such motor vehicle parking lots, water supply, drainage, sewerage, garbage removal and disposal, heat, light, power, gas, sidewalks, curbs, gutters, streets and street name signs and fire-fighting systems in such district, and to accept the funds of, or to reimburse from any available source, such person, firm, corporation, municipality, county, authority or the federal government or any agency thereof for either the whole or any part of the costs, expenses and charges incident to the acquisition, construction, reconstruction, maintenance, alteration, improvement, addition to and operation of any such system or systems[.]

The power of a sanitary district to build and operate recreational facilities and community buildings is similarly limited to the boundaries of the sanitary district.

Finally, § 15.2-1300 broadly provides that

[a]ny power, privilege or authority exercised or capable of exercise by any political subdivision of this Commonwealth may be exercised and enjoyed jointly with any other political subdivision of this Commonwealth having a similar power, privilege or authority except where an express statutory procedure is otherwise provided for the joint exercise.

Based on these statutory provisions, I conclude that a sanitary district generally is limited to operating and maintaining community buildings and recreational facilities that are located within the boundaries of the district, which you indicate encompasses land only within one county. Upon reaching an agreement with another jurisdiction, however, a sanitary district properly can operate community buildings and recreational facilities outside the boundaries of the sanitary district.

Conclusion

Accordingly, it is my opinion that a sanitary district is limited to operating and maintaining community buildings and recreational facilities that are located within the boundaries of the district, unless it reaches an agreement with another jurisdiction to operate buildings and facilities outside those boundaries.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General