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Eco-Site, LLC v. Town of Cedarburg

Court of Appeals of Wisconsin, District II

July 24, 2019

Eco-Site, LLC f/k/a Eco-Site, Inc., Scott R. Akerlund and Patricia A. Akerlund, Plaintiffs-Appellants,
v.
Town of Cedarburg, Defendant-Respondent.

          APPEAL from a judgment of the circuit court for Ozaukee County No. 2017CV209: SANDY A. WILLIAMS, Judge. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

          NEUBAUER, C.J.

         ¶1 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.

         BACKGROUND

         ¶2 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.

         ¶3 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.[1]

         ¶4 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 incomplete.

         ¶5 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.

         ¶6 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).[2]

         ¶7 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.

         ¶8 In June 2017, Eco-Site filed a summons and a petition for certiorari or, in the alternative, a complaint for declaratory judgment.[3] 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. Eco-Site appealed.

         STANDARD OF REVIEW

         ¶9 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. Id., ¶¶4-5.

         THE LAW

         ¶10 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).

         ¶11 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.

         ¶12 Certain reasons for denial of an application are prohibited by statute. Relevant here, a municipality may not do any of the following:

(c) Enact an ordinance prohibiting the placement of a mobile service support structure in particular locations within the political subdivision.
….
(g) Disapprove an application to conduct an activity described under [Wis. Stat. ยง 66.0404(2)(a)] based ...

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