Board of Supervisors of Fairfax County v. Washington D.C. , 258 Va. 558 ( 1999 )

Present: Carrico, C.J., Compton, Lacy, Keenan, Koontz,
and Kinser, JJ.
BOARD OF SUPERVISORS OF
FAIRFAX COUNTY, VIRGINIA
OPINION BY
v. Record No. 982627 JUSTICE LAWRENCE L. KOONTZ, JR.
November 5, 1999
WASHINGTON, D.C. SMSA L.P.,
ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
The dispositive issue in this appeal is whether
telecommunications facilities constructed, or to be constructed,
by a private commercial owner on its leasehold on land within
the rights-of-way of the Virginia Department of Transportation
(VDOT) are exempt from the zoning authority of the locality in
which that land is located.
BACKGROUND
Beginning in October 1996, VDOT and 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,” permitting
these companies to construct and operate certain facilities for
use in their wireless telecommunications networks 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. Under the terms of the master leases, the
telecommunications companies are responsible for constructing
and maintaining the towers during the period of the lease. VDOT
retains the right to terminate a lease if the telecommunications
companies’ use of a specific site interferes with necessary
transportation uses of VDOT’s right-of-way. 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, the shared use of these towers. Under the lease agreements,
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
the telecommunications companies are to provide rental payments
in the form of equipment for VDOT’s use. Specifically, the
telecommunications companies are to 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 of the master leases, the
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 construct towers of
between 80 and 164 feet in height at several of these sites.
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
Neither company sought zoning approval for this construction
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 a locality by Code §
15.2-2232 to 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
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.
4
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, the County
contended that the towers are public utility facilities of
commercial entities and, thus, are subject to approval under the
County’s comprehensive plan since they are located on
unincorporated land within the County. The County further
contended that even if VDOT’s rights-of-way are not subject to
its zoning authority, the airspace above that land is subject to
that authority under Code § 15.2-2293. In response, the
telecommunications companies and the Commissioner contended that
because the towers are to be “shared communications facilities”
between VDOT and the telecommunications companies, the County,
which under its own ordinances recognizes that it cannot
regulate VDOT property, does not have the authority to regulate
the use of that property by VDOT, or its lessees. 5
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
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 focus. We
are not concerned with the broad scope of VDOT’s authority to
make use of its rights-of-way for transportation purposes.
Rather, 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
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
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 dispute that the towers in question 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 statute.
It then is self-evident that the sole distinguishing
feature between the public utility facilities at issue here and
many similar public utility facilities owned by these and other
telecommunications companies for the necessary infrastructure of
7
a modern wireless communication network is that these facilities
are located on land controlled 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. 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
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.
8
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”
9
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 them. 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 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
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.
10
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 judgment of the
trial court granting summary judgment for the telecommunications
companies and the Commissioner and remand the case for further
proceedings consistent with the views expressed herein.
Reversed and remanded.
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.
11