Posted by: Patricia Salkin | August 28, 2019

WI Appeals Court Upholds Denial of Conditional Use Permit for Cell Tower in Rural Area

This post was authored by Matthew Loeser, Esq.

T-Mobile USA and T-Mobile Central LLC located their cellular equipment on the Village of Grafton water tower, which was across the road from Akerlund Acres, a horse farm. Although T-Mobile had a lease at the water tower that ran until 2031, T-Mobile sought to move their equipment to Akerlund Acres, about 1300 feet away. To this end, T-Mobile and Pyramid Network Services, LLC (collectively called Eco-Site) executed a contract to lease a portion of the southeast corner of the Akerlunds’ land. In 2015, Eco-Site and the Akerlunds applied to the Town for a CUP to erect a 120-foot metal monopole wireless communication tower and supporting 5600 square foot structure on Akerlund Acres. After its application was denied, Eco-Site filed a summons and a petition for certiorari or, in the alternative, a complaint for declaratory judgment. The circuit court upheld the Town’s denial of the application for a conditional use permit (CUP) for the tower, and Eco-Site appealed.

On appeal, Eco-Site claimed that the Town proceeded on an incorrect theory of law in determining that the tower would be incompatible with the adjacent land. Here, the Town zoned the area agricultural and the neighboring area residential, in an effort to keep this area rustic, rural, and populated. The court found that this intended use and lifestyle would be directly contradicted by the introduction of a 120-foot tall telecommunications tower with its substantial related structure and fencing. Eco-Site next argued that denying the application based on incompatibility contradicted the Town’s own zoning ordinance, which specifically allowed for the placement of mobile towers in an A-1 zoning district as a conditional use. The court rejected this claim, noting that simply because mobile towers could be considered in A-1 zoning districts did not necessarily mean that each one would pass scrutiny for compatibility.

Lastly, Eco-Site contended that the Town’s denial on the basis of not only incompatibility, but on the basis of lost property values and the detrimental effect on public health and safety and general welfare, equated to a denial based on aesthetic concerns. The court found that the visual impact of the tower was different than the broader impact of the tower on the uses and the lifestyle for which the neighborhood was zoned. Additionally, visual impact of the tower was different than the economic impact on the property values. As the impacts of these different “concerns” were not one and the same, and since the incompatibility standard is a valid basis to deny the application, the court held it did not matter that aesthetic comments were made. Accordingly, there was substantial evidence to support the Town’s decision.

Eco-Site, LLC v Town of Cedarburg, 2019 WL 3310403 (WI App. 7/24/2019)

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