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
