Eco-Site, LLC f/k/a Eco-Site, Inc., Scott R. Akerlund and Patricia A. Akerlund, Plaintiffs-Appellants,
Town of Cedarburg, Defendant-Respondent.
from a judgment of the circuit court for Ozaukee County No.
2017CV209: SANDY A. WILLIAMS, Judge. Affirmed.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
This case involves the siting of a cell tower in the middle
of a rural area in the Town of Cedarburg. Those proposing the
tower- Eco-Site, LLC f/k/a Eco-Site, Inc., Scott R. and
Patricia A. Akerlund-appeal from a judgment of the circuit
court upholding the Town's denial of the application for
a conditional use permit (CUP) for the tower. Because the
Town proceeded on a correct theory of law when it determined
that the tower was incompatible with the uses, values, and
enjoyment of the other property in the area under its
ordinance, and this decision was supported by substantial
evidence, we affirm.
T-Mobile USA and T-Mobile Central LLC currently have their
cellular equipment located (referred to as
"collocated") on the Village of Grafton water
tower, which is across the road from Akerlund Acres, a horse
farm. Although T-Mobile has a lease at the water tower that
runs until 2031, T-Mobile sought to move their equipment to
Akerlund Acres, about 1300 feet away. T-Mobile and Eco-Site
executed a contract to lease a portion of the southeast
corner of the Akerlunds' land.
On November 24, 2015, Eco-Site and the Akerlunds, working
with T-Mobile and Pyramid Network Services, LLC (collectively
called Eco-Site), 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.
Owned by the Akerlunds and located in an area currently zoned
as an A-1 Agricultural District, the land was surrounded by
property zoned as residential.
On December 4, 2015, the Town notified Eco-Site that the
application was incomplete. Two more applications-dated
January 20 and February 22, 2016-were similarly rejected as
Eventually, Eco-Site's application was put on the agenda
for the Town and Plan Commission meeting on April 20, 2016.
However, due to input from the public at a town planning
commission meeting, Eco-Site withdrew its application to
search for alternate locations. On September 28, 2016,
Eco-Site resubmitted its application.
At a town board meeting on May 3, 2017, after a full
discussion of the information and issues, Town Supervisor
Gary Wickert moved to deny the application for failure to
meet three of six ordinance requirements and one statutory
requirement. These grounds for denial were the following: (1)
the considerable and foreseeable loss in value to the
surrounding properties particularly given the rural and
rustic nature of the property, and the loss of property sales
in the area as a result of the prospect of the tower; (2) the
incompatibility of the 120-foot monopole with the adjacent
land, which the Town is struggling to keep rural and rustic;
(3) the "dropping a metal tower in the middle of" a
"beautiful and scenic area" would be detrimental
the public health, safety, and general welfare; and (4)
Eco-Site's failure to explain why its "search
ring" for other locations was so small, therefore
failing to provide an application that was complete under
Wis.Stat. § 66.0404(2)(b)6. (2017-18).
Wickert's motion was seconded, and the board voted 4-0 to
deny the application. The Town provided Eco-Site with a May
3, 2017 letter explaining the same reasons for the denial
identified by Wickert.
In June 2017, Eco-Site filed a summons and a petition for
certiorari or, in the alternative, a complaint for
declaratory judgment. Upon reviewing the record and briefs, the
circuit court ruled that the reasons set forth by the Town
were not "just another way of saying aesthetics,"
but were in fact "legitimate reasons" for
disapproval and that there was "substantial
evidence" within the record to support its decision.
Our appellate certiorari review looks only at the Town's
decision, not the circuit court's. Lake Delavan Prop.
Co. v. City of Delavan, 2014 WI.App. 35, ¶5, 353
Wis.2d 173, 844 N.W.2d 632. The scope of our review is
confined to four areas: (1) whether the Town kept within its
jurisdiction; (2) whether the Town acted according to law;
(3) whether the Town's action was arbitrary, oppressive,
or unreasonable, and represented its will, and not its
judgment; and (4) whether the evidence was such that the Town
might reasonably make the order or determination in question.
Id., ¶4. We accord a presumption of correctness
and validity to the decision of the Town, but whether the
Town has exceeded its authority and how statutes are
interpreted are questions of law we review de novo.
Through the Telecommunications Act of 1996, Congress
attempted to balance the many conflicting interests affecting
the placement of facilities for wireless services, including
the regulatory interests of state and local governments and
the need for a uniform national policy. See Aegerter v.
City of Delafield, 174 F.3d 886, 887 (7th Cir. 1999).
"The Act empowers state and local governments to
regulate the placement of facilities for personal wireless
services, but their authority is not unfettered."
Id. at 887-88. When making decisions, a local
government must not discriminate against providers of
equivalent services or prohibit, or have the effect of
prohibiting, "the provision of personal wireless
services," and it must respond in a reasonable time
frame to requests for modification or construction of related
facilities and provide a written decision supported by
substantial evidence "contained in a written
record" if a request is denied. Id. at 888-89;
see 47 U.S.C. § 332(c)(7)(B) (2018).
For its part, in 2013, the Wisconsin Legislature created
Wis.Stat. § 66.0404, which requires municipalities to
use statewide standards for the siting and construction of
mobile service support structures. While preempting many
municipal regulations, it does not preempt all local control,
providing that, subject to the statute, municipalities may
enact zoning ordinances "to regulate any … siting
and construction of a new mobile service support structure
and facilities." Sec. 66.0404(2)(a)1.
Certain reasons for denial of an application are prohibited
by statute. Relevant here, a municipality may not do any of
(c) Enact an ordinance prohibiting the placement of a mobile
service support structure in particular locations within the
(g) Disapprove an application to conduct an activity
described under [Wis. Stat. § 66.0404(2)(a)] based