Originally Posted by alesis

Here's an interesting precident I found a few months ago.

In Board of Supervisors v. Washington, D.C., 522 S.E. 2d 876 (1999), the Virginia Department of Transportation (VDOT) entered into leases with two wireless companies permitting them to build and operate certain facilities – including monopole towers, nine panel antennae, and related equipment cabinets and buildings – on VDOT rights-of-way along state highways in Fairfax County. The facilities were to be used not only for use in their wireless communications businesses, but also to provide infrastructure for VDOT’s proposed ITS. Specifically, the telecommunications companies were required to install a closed-circuit television system, a highway advisory radio system and emergency call boxes, with the goal of improving traffic flow, safety and emergency response along the highway. The equipment was to remain property of the private companies, who were also responsible for all maintenance.

The companies did not seek zoning approval before building the facilities -- including towers of between 80 and 164 feet in height -- in a residential area. Not surprisingly, the height of the towers violated county zoning requirements for a residential area. Fairfax county (reportedly encouraged by resident Ed Meese) then filed a lawsuit seeking declaratory judgment that the companies were subject to county zoning requirements. VDOT intervened as a defendant. VDOT and the telecommunications companies argued that since the towers were shared communications facilities to be used partially for state purposes, they were exempt from local zoning regulations. The lower court ruled in favor of the telecommunications companies and VDOT, and held that the telecommunications facilities were not subject to local zoning requirements.

The Virginia Supreme Court reversed. The court held that because the towers were owned by the telecommunications companies and because the leases placed primary use and control of the land in the hands of the private companies for their own private purposes, the land was properly subject to local zoning requirements. In a sense, the land was taken out of the realm of VDOT’s sovereign rights and passed into the realm of a private citizen under the terms of the lease. The court noted that while VDOT may have benefited by being able to place its equipment on the towers, ultimately, the ownership and operation of the towers was still in private hands, which made them subject to local zoning requirements.