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BRD. OF SUPERVISORS OF FAIRFAX CTY. v. WASHINGTON, D.C. SMSA L.P., et al.



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BRD. OF SUPERVISORS OF
FAIRFAX CTY.

v.

WASHINGTON, D.C. SMSA L.P.,
et al.


November 5, 1999

Record No. 982627

BOARD OF SUPERVISORS OF FAIRFAX COUNTY,
VIRGINIA

v.

WASHINGTON, D.C. SMSA L.P., ET AL.

FROM THE Circuit Court of Fairfax County

F. Bruce Bach, Judge

Present: Carrico, C.J., Compton, Lacy, Keenan,
Koontz,and Kinser, JJ.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.


The dispositive issue inof this appeal is
whether telecommunications facilities constructed, or to be
constructed, by a private commercial owner on itsa leasehold on
land within the rights-of-way ofowned by the Virginia Department
of Transportation (VDOT) are exempt from the zoning
authoritypower of the locality in which that land is located.

BACKGROUND

Beginning in October 1996, VDOT andnegotiated
separate master lease agreements with Washington D.C. SMSA L.P.
and Wireless PCS, Inc. (the telecommunications companies) entered
into separate master lease agreements, styled "Master Deed
of Lease for Shared Communication Facilities,"which would
permitting these companies to construct and operate certain
facilities for use in their wireless telecommunications networks
them to acquire leaseholds on VDOT rights-of-way along the state
highway system in Fairfax County (the County).
[1] These facilities consist
primarily of monopole towers, nine panel antennae, and related
maintenance service buildings or equipment cabinets (hereinafter
collectively referred to as "the towers"). Specific
sites for these towers were later agreed upon and designated by
lease site addenda to the master leases.Both telecommunication
companies proposed to construct towers on their leaseholds for
use in their wireless communications networks. Under the terms of
the master leases agreement, the telecommunications companies
arewould be responsible for constructing and maintaining the
towers during the period of the lease. VDOT retainsed the right
to terminate a lease if the telecommunications companies’
use of a specific siteit interferesd with necessary
transportation uses of VDOT’s right-of-way. the land and had
In addition, VDOT retains the right to co-locate its own
communications equipment on the towers. In any event, the towers
remain the property of the telecommunications companies.

The parties do not dispute that VDOT’s
goals to improve traffic flow, motorist safety, and emergency
response along its highway network would be facilitated by, and
partially financed by, benefit from the shared use of these
towers. Under the lease agreements, the telecommunications
companies are towould provide rentallease payments in the form of
equipment for VDOT’s use. Specifically, the
telecommunications companies are towould purchase and install
certain specified equipment for a closed circuit television
system, a highway advisory radio system, and emergency call boxes
at various sites as part of VDOT’s proposed
"Intelligent Transportation System" (ITS).
[2] Moreover, it is not disputed that VDOT and the County
administration have regularly consulted on the need for ITS in
the County and the desirability of placing telecommunications
towers on VDOT rights-of-way rather than on private land in more
densely developed areas.

Consistent with the provisions Following
negotiation of the master leases, the two telecommunications
companies and VDOT agreed on leases for at least a dozen
individual sites on VDOT’s rights-of-way within the
boundaries of Fairfax County. Both telecommunications companies
then proceeded with their plans to constructerect monopole towers
of between 80 and 164 feet in height at several of these sites.
Neither company sought zoning approval for this constructionese
projects from the County.

On September 12, 1997, the County filed a bill
of complaint against the telecommunications companies seeking a
declaratory judgment that they were subject to the zoning
authority of the County pursuant to the authority granted to athe
locality by Code ? 15.2-2232 to create and enforce a
comprehensive plan.
[3] Specifically, the County
sought injunctive relief directing the telecommunications
companies to cease operations on any towers already constructed
and prohibiting the telecommunications companies from proceeding
with construction of other towers until such time as they had
sought and received approval for the construction and operation
of the towers from the County.

On September 17, 1997, the Commonwealth
Transportation Commissioner filed a motion to intervene in the
suit on behalf of VDOT. The trial court granted that motion on
November 6, 1997, joining the Commissioner as a defendant.
[4]

Thereafter, the telecommunications companies
and the Commissioner filed answers to the bill of complaint,
asserting that telecommunications facilities constructed on
VDOT’s rights-of-way are not subject to the provisions of
Code ? 15.2-2232.

The parties filed cross-motions for summary
judgment along with supporting briefs and exhibits. In
essence,sum, the respective positions of the parties can be
stated thus: the County contended that the towers arewere public
utility facilities of commercial entities and, thus, are subject
to approval under the County’s comprehensive plan since they
arewere located on unincorporated land within the County. The
County further contended that even if VDOT’s rights-of-way
arewere not subject to its zoning authority, the airspace above
that land wais subject to that authority under Code ? 15.2-2293.

In response, Tthe telecommunications companies
and the Commissioner contended that because the towers are to
bewere "Sshared Ccommunications Ffacilities" between
VDOT and the telecommunications companies, and that VDOT’s
equipment located thereon was intended to make the highway system
"safer and more efficient." Thus, the County, which
under its own ordinances recognizes that it cannot regulate VDOT
property, does not have the authoritypower to regulate the use of
that property by VDOT, or its lessees.
[5]

Following oral argument by the parties, the
trial court granted summary judgment for the telecommunications
companies and the Commissioner. In a summation from the bench,
subsequently incorporated by reference in the final order, the
trial court stated:

I am thinking of the history of the law
in Virginia and the Dillon Rule, and I don’t think
there is anything exactly on point in this case that I
can put my finger on and say, this is the right answer.

But I believe basically that these VDOT
right-of-ways are State property, and Fairfax County
can’t regulate them.

We awarded the County this appeal.

DISCUSSION

The issue presented by this appeal is narrow in
scopefocus. We are not concerned with the broad scope of
VDOT’s authority to make use of its rights-of-way for
transportation purposes. RatherSpecifically, we are only to
decide whether a private telecommunications company may construct
a public utility facility on a leasehold property which is part
of a VDOT right-of-way without first seeking approval for the
construction of that facility from the local government through
whose jurisdiction that right-of-way runs.

Code ? 15.2-2232(A) provides that:

Whenever a local planning commission
recommends a comprehensive plan or part thereof for the
locality and such plan has been approved and adopted by
the governing body, it shall control the general or
approximate location, character and extent of each
feature shown on the plan. Thereafter, unless a feature
is already shown on the adopted master plan or part
thereof or is deemed so under subsection D, no
street or connection to an existing street, park or other
public area, public building or public structure, public
utility facility
or public service corporation
facility other than railroad facility, whether publicly
or privately owned, shall be constructed,
established or authorized, unless and until the
general location or approximate location, character, and
extent thereof has been submitted to and approved by
the commission
as being substantially in accord with
the adopted comprehensive plan or part thereof.

(Emphasis added.)

There is no parties do not dispute that the
towers in questionto be constructed and the equipment placed
thereon and utilized by the telecommunication companies would
constitute "public utility facilit[ies]" under Code ?
15.2-2232(A) and are not currently shown on the County’s
comprehensive plan. Nor can it be disputed that if these towers
were located on private land within the County, they would be
subject to prior approval by the planning commission under the
statuteCode ? 15.2-2232(A).

It then is self-evident, then, that the sole
distinguishing feature between the public utility facilities the
leases at issue here and many similar public utility facilities
owned lease agreements made by these and other telecommunications
companies to obtain land upon which to locatefor the necessary
infrastructure of a modern wireless communication network is that
these facilities are located on land controlled land in question
here is owned by and leased from a department of the state
government. Moreover, the fact that the telecommunications
companies have the primary right to control the use of this land
under the leases supports the narrow focus we take in our
resolution of this appeal. underWhile it is true that the terms
of these leases provide benefits to that department in the form
of goods and services and to the Commonwealth and its citizens in
the form of revenue, these facts are secondary to the basic
nature of the leases, which provide an exclusive right to the
leaseholder to control the subject land and make improvements
thereon during the period of the lease.
[6]

First, we reject the assertion that the
exercise of zoning authority by the County in this case would
violate the Dillon Rule. The Dillon Rule provides that the powers
of a local government and, thus, of a planning commission acting
under that authority, are fixed by statute and are limited to
those powers granted expressly or by necessary implication and
those that are essential and indispensable. Ticonderoga Farms
v. County of Loudoun
, 242 Va. 170, 173-74, 409 S.E.2d 446,
448 (1991). The Dillon Rule is simply not implicated in this case
because Code ? 15.2-2232(A) expressly grants the planning
commission authority to regulate the placement of public utility
facilities. Moreover, subsection E of that statute has an express
limitation exempting "public telecommunications facilit[ies] [approved and funded] by the Virginia Public Broadcasting Board .
. . with the exception of television and radio towers"
from the review process required by subsection A. (Emphasis
added). This evinces a legislative intent to permit local
regulation of telecommunications facilities owned by both private
and public providers. Accordingly, it would not be inconsistent
with the authority granted to the County and its planning
commission to exercise regulatory authority over any such
privately owned facility within its jurisdiction.

The telecommunications companies and the
Commission contend, however, that because the towers are intended
to be "shared communications facilities," the eventual
placement of VDOT equipment on the towers exempts them from being
subject to local zoning regulation. In support of this
contention, they rely on Code ? 15.2-2223, which provides in
pertinent part that a "local planning commission shall
prepare and recommend a comprehensive plan for the physical
development of the territory within its jurisdiction and
every governing body shall adopt a comprehensive plan for the
territory under its jurisdiction." (Emphasis added).
The telecommunications companies and the Commissioner contend
that while VDOT’s rights-of-way may be "within"
the County’s jurisdiction because these lands are within the
boundaries of the County, these lands are not "under"
its jurisdiction because they are the property of the state and,
thus, the County’s comprehensive plan cannot govern these
lands regardless of the use made of themnot subject to local
control.
[7] In the context of the
issue presented by this appeal, we disagree.

As we noted above, the lease agreements between
VDOT and the telecommunications companies place primary use and
control of the land with the lessees. The towers are owned solely
by the telecommunications companies. Under these circumstances,
it is the telecommunications companies’ towers and their
leasehold interests in VDOT’s rights-of-way that are
properly subject to the County’s zoning authority under Code
? 15.2-2232 rather than any rights of sovereignty VDOT might
claim against local regulation.

In short, while VDOT would benefit from the
ability to place its equipment on the towers, VDOT does not own
the towers or have a primary right of possession use of the land
subject to the leases during their terms. The telecommunications
companies are in the same position with respect to the towers in
question as they would be for any other such towers constructed
on land leased or acquired for such purposes. The mere fact that
the towers are conveniently, or even necessarily, located on
state-owned rights-of-way is irrelevant to the question whether
they fall within the regulatory authority of the planning
commission granted under Code ? 15.2-2232(A). Accordingly, we
hold that the telecommunications companies must submit their
proposed use of the leased land to the County’s planning
commission.
[8]

CONCLUSION

For these reasons, we will reverse the
judgmentorder of the trial court granting summary judgment for
the telecommunications companies and the Commissionerto the
appellees and remand the case for further proceedings to
determine appropriate injunctive relief consistent with the views
expressed herein.

Reversed and remanded.

 

FOOTNOTES:

[1] Washington, DC SMSA L.P. is
principally associated with Bell Atlantic. Wireless PCS, Inc. is
associated with American Telephone & Telegraph and operates
under the name AT&T Wireless Services. These agreements were
part of a statewide plan to lease VDOT controlled lands to
telecommunications companies for the construction of
telecommunications towers. Several other localities have filed amicus
curiae
briefs in support of the position taken by Fairfax
County in this appeal.

[2] In the event that the cost of
obtaining and installing the equipment at a given location is
less than the dollar value of the lease payments, the balance is
to be paid into the general revenue of the Commonwealth. The
typical value of an individual lease is "$70,000 rental or
its equivalent in goods and/or services" for the first five
years of the lease with an automatic renewal of five years at
$15,870 annual rent paid in monthly installments.

[3] At the time this suit commenced,
Code 15.1-456 was the relevant code section. Title 15.2
superseded Title 15.1 effective December 1, 1997. As they pertain
to this appeal, the provisions of the superseded title are
substantially identical to those of the current title.
Accordingly, we will refer to the current code sections.

[4] The County did not assign error
to the trial court’s granting of the motion to intervene.

[5] Section 2-1-1(a) of the Fairfax
County Code of Ordinances provides that:

No person shall do work or any
construction within or on any land dedicated to public
use . . . unless and until a permit for such use has been
obtained from the Director of Environmental Management or
his agent, of the County; provided, however, that this
shall not apply to the right of way of any street or
highway in any system of the Department of Highways of
the State.

By its express terms, this ordinance is not
invoked by the facts of the present case.

[6] We recognize that the terms of
the master leases permit VDOT to make use of the land not
inconsistent with the lessees’ use and, if necessary, to
terminate any individual lease site if the lessee’s use of
that land becomes inconsistent with the transportation needs of
the department. Nonetheless, these limited and prospective rights
do not alter the telecommunications companies’ primary right
to control the use of the land and to construct public utility
facilities thereon during the period of the lease.

[7] The telecommunications companies
and the Commissioner rely primarily on Code ? 33.1-37 for the
proposition that a local government cannot exercise regulatory
authority over VDOT’s use of land under its control. Our
resolution of this appeal does not imply approval or disapproval
of that proposition, since that issue is not before us.

[8] In light of this holding,
we need not address the County’s contention that it had
authority to regulate the towers pursuant to Code ? 15.2-2293.

 

 

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