In Eco-Site, LLC v. Town of Cedarburg (2018AP580), the Court of Appeals District II upheld a town’s denial of a conditional use permit for a cell tower. Eco-Site and T-Mobile applied to the Town of Cedarburg for a conditional use permit to place a cell tower on a horse farm in the town, the Wisconsin Civil Justice Council reported. The desired location for the tower was zoned as agricultural, and the surrounding area was zoned as residential. The town board denied the conditional use permit for reasons including: the tower would reduce the value of the surrounding properties, was incompatible with the “rural and rustic” adjacent land, and would be detrimental to public welfare because of its effect on the “beautiful and scenic area.”
Eco-Site sought judicial review of the permit denial, arguing that the town’s decision was not in accordance with its zoning ordinances and violated statutory requirements that towns not prohibit cell towers solely because of aesthetic concerns. T-Mobile paid the Village of Grafton $35,525 in 2017 for its lease, according to the court document, their savings would be approximately $230,000 if it moved to the Eco-Site tower.
The court found that the town properly applied its zoning ordinances. Cedarburg’s conditional use ordinances require that the use will not be detrimental to public welfare and will be compatible with adjacent land. The court agreed with the town that the cell tower would be incompatible with the agricultural and residential uses of the adjacent land. The tower would be detrimental to public welfare because it would diminish property values.
The court also found that the town did not violate state law prohibiting towns from denying cell towers solely for aesthetic reasons. Though the board’s comments on the application contained many aesthetic complaints, the court held that the aesthetic impact was distinct from the economic impact of lower property values from the cell tower. The law (Wis. Stat. 66.0404(5) only prohibits denial based solely on aesthetic concerns. Because the town based its decision on the economic impact and incompatibility with the town’s ordinances, the town’s decision was valid, according to the Justice Council.
In a concurring opinion, Judge Paul Reilly agreed with the town’s permit denial but with different reasoning than the court. The concurring opinion argues that Eco-Site lacked evidence it needed a new tower at that specific site. Eco-Site explained that the new tower would accommodate more carriers. However, the concurring opinion found no evidence the town needed a new tower and additional carriers to meet its communications needs.
August 19, 2019
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