Court of Appeals, District II, Upholds Town’s Denial of CUP for Cell Tower

Published by Elizabeth C. Stephens, Susan Allen, Kyle P. Olsen on

In Eco-Site LLC et. al. v. Town of Cedarburg, 2019 WI App 42, the Wisconsin Court of Appeals, District II affirmed the Town of Cedarburg’s authority to deny Eco-Site LLC’s conditional use permit application to build a cell tower.

After a full discussion of the information and issues, the Town Board denied Eco-Site’s application on four bases - three rooted in its ordinance and one in state law. First, the Board found the cell tower would likely result in the reduction of nearby property values. Second, the Board determined the placement of the cell tower was incompatible with land uses on adjacent land. Third, the Board concluded the cell tower would pose dangers to public health, safety and welfare. And, fourth, the Board noted that Eco-Site did not comply with Wis. Stat. § 66.0404(2)(b)6.’s “search ring” requirement in its application.

The plaintiff argued that the federal Telecommunications Act of 1996 and Wis. Stat. § 66.0404 constrain municipalities’ ability to regulate the siting and construction of new mobile service support structures and facilities. Specifically, plaintiff argued municipalities are prohibited from denying siting or construction permission by ordinances that prohibit placement of a cell tower in a particular location, or “based solely on aesthetic concerns.”

While acknowledging these limitations on municipal authority, the Circuit Court found that the Town’s denial of the cell tower CUP application was permissible, supported by substantial evidence, and not “just another way of saying aesthetics.” The Court of Appeals agreed, noting that of the Town’s six CUP standards regulating cell tower siting, none prohibited towers in certain locations or was based purely on aesthetics.

The Court of Appeals rejected Eco-Site’s claims that the Town misapplied its ordinance regarding the proposed cell tower’s compatibility with adjacent lands or relied on solely aesthetic concerns. Rather, the Town intentionally chose to zone land residential and agricultural “to keep this area rustic, rural and populated.” These zoning decisions and development goals were not purely aesthetic and did not prohibit towers in specific locations.

The Court also found the Town’s and citizen’s concerns regarding reduced property values were legitimate and not purely aesthetic. Eco-Site argued that the mere presence of “aesthetic language” in the Town’s denial letter suggested that the decision was impermissibly based on aesthetics. But the Court noted that the denial letter also discussed how the proposed project would affect broader uses of the neighborhood and nearby property values. The Court found this to be a decisive factor, explaining that the legislature’s choice of words matters. That is, an application can be denied for reasons relating to aesthetics, just not “based solely on aesthetic concerns.” 2019 WI App 42 at ¶23. Therefore, the Court found the Town’s CUP standards and its denial of Eco-Site’s permit valid because “it simply does not matter that aesthetic comments were made.”

The Court further held that, despite the parties’ differing interpretations of the statute, the Town provided the requisite substantial evidence for its denial. 2018AP580 at ¶24; see Wis. Stat. § 66.0404(2)(d)4. This deferential standard allows the Court to uphold a municipality’s decision if it finds sufficient evidence to suggest that “reasonable persons could decide as the Town did.” Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50 ¶ 43.

In a concurring opinion, Judge Reilly stated that the Court could have affirmed the lower court’s holding for another reason: Eco-Site’s failure to demonstrate that existing locations or collocation could not meet the public’s communication needs. See Wis. Stat. § 66.0404(2)(b)6.

This decision represents an important acknowledgment of municipalities’ regulatory authority over cell tower siting. However, the Court’s decision suggests that, when denying cell tower permit applications, a municipality should ensure that it first gathers and examines substantial evidence, and finds multiple non-aesthetic reasons for denial.

Filed Under: Wisconsin Court of Appeals

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