Eco-Site, LLC v. Town of Cedarburg

2019 WI APP 42
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP580

Complete Title of Case:

ECO-SITE, LLC F/K/A ECO-SITE, INC., SCOTT R. AKERLUND AND
PATRICIA A. AKERLUND,

PLAINTIFFS-APPELLANTS,

V.

TOWN OF CEDARBURG,

DEFENDANT-RESPONDENT.

Opinion Filed: July 24, 2019
Oral Argument: July 8, 2019

JUDGES: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
Concurred: Reilly, P.J.
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiffs-appellants, the cause was submitted on the
briefs of J. Michael Long, Lisa M. Lawless, and James C. Remington of
Husch Blackwell LLP, Milwaukee. There was oral argument by Lisa M.
Lawless and J. Michael Long.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Remzy D. Bitar and Luke A. Martell of Municipal Law &
Litigation Group, S.C., Waukesha. There was oral argument by Remzy
D. Bitar.
2019 WI App 42

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 24, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP580 Cir. Ct. No. 2017CV209

STATE OF WISCONSIN IN COURT OF APPEALS

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:
SANDY A. WILLIAMS, Judge. Affirmed.

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

¶1 NEUBAUER, C.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
No. 2018AP580

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

1
A-1 Agricultural Districts are zoned for the principal uses of apiculture, dairying,
floriculture, forestry, general farming, grazing, greenhouses, hatcheries, horticulture, livestock
raising, nurseries, orchards, paddocks, pasturage, poultry raising, stables, truck farming, and
viticulture. TOWN OF CEDARBURG, WIS., CODE § 320-25A. (2018).

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No. 2018AP580

¶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

2
All references to the Wisconsin Statutes are to the 2017-18 version.

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No. 2018AP580

¶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.

3
The Akerlunds filed for certiorari with Eco-Site. For ease of reference, we will usually
refer to Eco-Site.

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No. 2018AP580

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.

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No. 2018AP580

….

(g) Disapprove an application to conduct an activity
described under [WIS. STAT. § 66.0404(2)(a)] based solely
on aesthetic concerns.

Sec. 66.0404(4).

¶13 The statute also lays out a process for both the municipality and the
applicant. When the construction of an entirely new structure is being proposed,
as here, the applicant must explain why it chose the location and why it did not
choose collocation, with a sworn statement from a responsible individual
confirming that collocation within the “search ring” would lessen functionality,
coverage, or capacity, or was technically infeasible, or was economically
burdensome.4 WIS. STAT. § 66.0404(2)(b)6. If an applicant refuses to do so, the
municipality may reject the application. Sec. 66.0404(2)(e).

¶14 Through its ordinances, the Town has its standards for approval of
conditional uses. The ordinance states no conditional use shall be granted unless
all six of the ordinance’s conditions are met, to include the following three relied
upon by the Town:

(1) Welfare. The establishment, maintenance or
operation of the conditional use will not be
detrimental to or endanger the public health, safety,
morals, comfort or general welfare.

(2) Compatible with adjacent land. The uses, values and
enjoyment of other Town property in the
neighborhood for purposes already permitted shall be

4
A “search ring” is “a shape drawn on a map to indicate the general area within which a
mobile service support structure should be located to meet radio frequency engineering
requirements, taking into account other factors including topography and the demographics of the
service area.” WIS. STAT. § 66.0404(1)(r).

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No. 2018AP580

in no foreseeable manner substantially impaired or
diminished by the establishment, maintenance or
operation of the conditional use.

(3) Not impede surrounding property development and
improvement. The establishment of the conditional
use will not impede the normal and orderly
development and improvement of the surrounding
Town property for uses permitted in the district.

TOWN OF CEDARBURG, WIS., CODE § 320-51A (2018).

DISCUSSION

¶15 Eco-Site generally asserts that the Town proceeded on an incorrect
theory of law in two different ways: it misapplied its own zoning ordinances—
determining that the tower would be incompatible with the adjacent land—and it
based its decision on a statutorily prohibited factor—solely aesthetic concerns.
We reject each in turn.

The Tower Is Incompatible With The Adjacent Land

¶16 The Town denied the application because the tower was not
“[c]ompatible with adjacent land” and it would substantially impair or diminish
the “uses, values and enjoyment of other Town property in the neighborhood.”
See TOWN OF CEDARBURG, WIS., CODE § 320-51A(2). We see no error by the
Town in denying the application on this point. The Town zoned the area
agricultural and the neighboring area residential, all in an effort to keep this area

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No. 2018AP580

rustic, rural, and populated.5 This intended use and lifestyle are clearly at odds
with, and would be thwarted by, the introduction of a 120-foot tall
telecommunications tower with its substantial related structure and fencing. The
Town proceeded on a correct theory of law by relying on the applicable ordinance
and applying it properly. Edward Kraemer & Sons, Inc. v. Sauk Cty. Bd. of
Adjustment, 183 Wis. 2d 1, 8-9, 515 N.W.2d 256 (1994).

¶17 Moreover, there were concerns expressed, by more than one citizen,
about how such a discordant and large structure will diminish property values,
which was a reason noted by Wickert.6 That concern fairly relates to the
compatibility of the tower and the residents’ “uses, values and enjoyment” of their
land.7 Eco-Site does not challenge the substantial diminishment in property values
as a valid ground for denial, but instead characterizes decreased property values

5
WEBSTER’S defines “rustic” as “relating to the country” and “having or exhibiting
qualities held to be characteristic of rural people,” and it defines “rural” as “living in country
areas : engaged in agricultural pursuits” and “characterized by simplicity : lacking
sophistication.” Rustic and rural, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993).
As the definitions indicate, “rustic” and “rural” are descriptive of function, manner, and use of the
land, not exclusively visuals.
6
At the public hearings, many residents expressed serious concerns about property
values, personally believing that there would be a negative impact. As a specific example,
Larry Lechner, a resident and developer, stated he lost a potential sale when the buyer learned of
the tower, and he knows of another lot owner who said he would not have purchased the lot had
he known about the tower. Another resident, Dana Carter, cited to a study published in The
Appraisal Journal that “buyers would pay as much as 20 percent less for a property near a cell
tower” and cited another study from Realtor Magazine indicating that “94% of home buyers and
renters surveyed … say they are less interested and would pay less for a property located near a
cell tower.” Eco-Site does not offer any evidence to the contrary.
7
Although public hearings on CUPs are not subject to the rules of evidence, we note
that, even under those stricter rules, a witness may give his or her opinion as to value of property
the witness owns. See Wilberscheid v. Wilberscheid, 77 Wis. 2d 40, 48, 252 N.W.2d 76 (1977)
(an owner is competent to give opinion evidence on value); see also WIS. STAT. § 907.01.

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No. 2018AP580

and lost sales as a solely aesthetic concern, which is prohibited and which we
discuss further below.

¶18 Eco-Site argues the denial for incompatibility is invalid because the
statute prohibits a municipality from banning such a structure from a “particular”
location. See WIS. STAT. § 66.0404(4)(c) (the municipality may not “[e]nact an
ordinance prohibiting the placement of a mobile service support structure in
particular locations”). We disagree that the statute was violated. The ordinance
does not identify any specific spot or area within the Town where such structures
are prohibited. Rather, the ordinance turns on whether the structure is compatible
with the adjacent land and its current uses, and Eco-Site fails to show how this
language targeted this particular location to preclude a tower.

¶19 Eco-Site next argues that denying the application based on
incompatibility contradicts the Town’s own zoning ordinance, which specifically
allows for the placement of mobile towers in an A-1 zoning district as a
conditional use. See TOWN OF CEDARBURG, WIS., CODE §§ 320-25C.(5), 320-107.
This is an overreach. Simply because mobile towers can be considered in A-1
zoning districts does not of course mean each one passes muster for compatibility
or otherwise. In Wisconsin, a conditional use is “one that has been legislatively
determined to be compatible in a particular area, not a use that is always
compatible at a specific site within that area.” AllEnergy Corp. v. Trempealeau
Cty. Env’t & Land Use Comm., 2017 WI 52, ¶54, 375 Wis. 2d 329, 895 N.W.2d
368. Thus, there is no presumption that a “conditional use is ipso facto consistent
with the public interest or that a conditional use is a use as of right at a particular

9
No. 2018AP580

site within an area zoned to permit that conditional use.” Id., ¶55. The ordinance
permits towers, if the conditions are met, but it does not rubber stamp them. See
CODE § 320-51.8

The Town Did Not Deny The Application Because Of Aesthetic Concerns Solely

¶20 Eco-Site asserts 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, equates to a denial based on
aesthetic concerns, which as noted is prohibited by statute if it is the sole reason.
See WIS. STAT. § 66.0404(4)(g). Eco-Site points out the following comments
from the Town’s letter, which it believes show that aesthetics were the only reason
for the denial (emphasis added):

[T]here would be considerable and foreseeable property
value loss to residents in the vicinity of the tower site, and
particularly big impact on the property values because of
the rural and rustic nature of the unique piece of
property…. [C]onstructing a large metal monopole steel
structure with an unsightly metal platform comprised of lots
of exposed metal in the middle of utopia will have a great
impact on property values ....

[T]he tower is [not] compatible with the surrounding area
... and is just about as incompatible as he could imagine....
Supervisor Wickert[’s] ... comments ... will be focused on
incompatibility of the tower in an area they are struggling
to keep rural and rustic, and preserve it as such.

8
Eco-Site also takes the Town to task for not proposing certain conditions that would
mitigate the Town’s concerns about incompatibility, without citing to any case or authority that
suggests a Town has such an obligation. Our supreme court has held otherwise. A board of
adjustment does not have the burden of formulating conditions enabling an applicant to obtain a
CUP. Edward Kraemer & Sons, Inc. v. Sauk Cty. Bd. of Adjustment, 183 Wis. 2d 1, 16, 515
N.W.2d 256 (1994). Such uses are permitted uses only when the standards prescribed by the
ordinance are met. Id. The applicant has the burden of showing that these standards are met. Id.
at 16-17.

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No. 2018AP580

Third, the granting of the permit would be detrimental to
the public health, safety, morals, comfort or general
welfare. Taking a beautiful and scenic area and dropping
a metal tower in the middle of it is detrimental to the
general welfare of the public.

(Emphasis added.) Eco-Site also notes that, at the May 3 hearing, Wickert stated
that the tower was “the equivalent of a giant erector set” that would be a “very real
assault” on “a very beautiful part of our town.”

¶21 There can be no doubt that there were comments on the aesthetic
impact—that the tower would be a visual blight and unattractive. 9 However, the
incompatibility conclusion is far more than a denial based on aesthetic, or visual,
“concerns.” The visual impact of the tower is different than the broader impact of
the tower on the uses and the lifestyle for which the neighborhood is zoned. The
visual impact of the tower is also different than the economic impact on the
property values—a concrete impact on the neighbors’ pocketbooks and the
Town’s property tax revenue. The impacts of these different “concerns” are not
one and the same. An unsightly tower could certainly be placed in a location that
would be compatible with the neighborhood uses and values due to the particular
site, and vice versa, as the Town determined here.

¶22 In sum, as noted, the zoning ordinance for CUPs has six
requirements and at least one of them is missing (the compatibility requirement),
such that the Town’s denial of the application was justified. Because the
incompatibility standard is a valid basis to deny the application, it simply does not
matter that aesthetic comments were made. The statute regarding aesthetics is in

9
The statute refers to “aesthetic concerns.” WIS. STAT. § 66.0404(4)(g). “Aesthetic”
means relating to or dealing with “the beautiful … ARTISTIC … pleasing in appearance:
ATTRACTIVE.” Aesthetic, MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1997).

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No. 2018AP580

accord: it states that an application must not be disapproved “based solely on
aesthetic concerns.” WIS. STAT. § 66.0404(4)(g) (emphasis added).

¶23 We note that, if the legislature intended to eliminate broader
concerns than the visual, it could have done so by modifying the statutory
language. For example, the legislature could have stated that an application must
not be disapproved for reasons “arising out of” or “relating in any way to”
aesthetic concerns. By choosing the term “solely,” the legislature purposefully
used limiting language—only aesthetic concerns. We give statutory language its
“common, ordinary, and accepted meaning” and “reasonable effect to every
word.” State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶¶45-46,
271 Wis. 2d 633, 681 N.W.2d 110.10

Substantial Evidence Supported The Town’s Denial

¶24 Eco-Site argues that, even if valid reasons were given to support the
denial, those reasons were not supported by substantial evidence. On certiorari,
we are limited to ascertaining whether there is substantial evidence to support the
Town’s decision. Van Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17
(1978). Here, substantial evidentiary support is also a statutory requirement. WIS.
STAT. § 66.0404(2)(d)4. We conclude there was enough evidence.

10
Notably, the statute dispenses with the limiting language applicable to new towers—
solely—instead precluding disapproval of class 2 collocation applications “on aesthetic
concerns.” WIS. STAT. § 66.0404(4)(gm). A class 2 collocation means the placement of a new
mobile service facility on an existing tower without substantial modification. The different
language applicable to existing towers underscores our reading that, as it relates to new towers,
“solely aesthetic concerns” does not preclude the other grounds identified by the Town.

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No. 2018AP580

¶25 “Substantial evidence,” as is required to support a decision on an
application for a CUP, is evidence where reasonable persons could decide as the
Town did. Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50,
¶43, 362 Wis. 2d 290, 865 N.W.2d 162 (2015). We are not asked to weigh the
evidence, nor may we substitute our view of the evidence for that of the Town.
Van Ermen, 84 Wis. 2d at 64.

¶26 Substantial evidence is less than a preponderance of the evidence,
but it is more than a mere scintilla of evidence and more than conjecture and
speculation. Oneida, 362 Wis. 2d 290, ¶44. Overcoming the substantial evidence
test is difficult because it is deferential to the Town’s decision, and a “[c]ertiorari
review accords the decision of the local governmental entity a presumption of
‘correctness and validity.’” AllEnergy Corp., 375 Wis. 2d 329, ¶88 (citation
omitted).11

11
When we review whether there is substantial evidence, Eco-Site argues that we may
only consider the evidence contained within the Town’s May 3, 2017 three-page letter
disapproving the application. It cites WIS. STAT. § 66.0404(2)(d)4., which states that “[i]f the
decision is to disapprove the application, include with the written notification substantial
evidence which supports the decision.” (Emphasis added.) We note that per the federal statute,
upon which the state statute appears to be based, the decision must be supported by substantial
evidence contained within “a written record.” See 47 U.S.C. § 332(c)(7)(B)(iii); T-Mobile South,
LLC v. City of Roswell, 135 S. Ct. 808, 811-12, 814-15 (2015) (record should be viewed in its
entirety). The Town argues that the statute simply requires delineation of the reasons for denial
in the written notification, but contends that the statute places no other constraint on a review of
the entire record by a certiorari court for factual support.

(continued)

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No. 2018AP580

¶27 We need only decide whether there is substantial evidence
supporting the Town’s decision on the compatibility ordinance. There is. The
simple undisputed facts are the Akerlund farm is surrounded by areas zoned
residential, and the Town has been trying to keep this area rustic and rural. We
earlier agreed that the Town’s application of the compatibility requirement was in
accord with the ordinance and reasonable, as the conflicting natures of a sky-high
cellular tower and the simple, agrarian and residential spread of land at this site
were noted. Likewise, although the tower itself will not be placed in the
residential areas, it will be very close by, and it was reasonable for the Town to
conclude that the tower was incompatible with many of the neighboring
homeowners’ residential lifestyle, and for some, the values of their homes would
be diminished by the ominous, shadow-casting tower. Several people at the
hearings spoke out on these terms. True, no one produced a large-scale, detailed
analysis of the financial effect of the tower. But that is not needed given our
standard of review. Whether such a tower is “as incompatible as [Supervisor
Wickert] could imagine” for the surrounding residential and rustic areas, the
evidence reasonably supports the Town’s decision.12

Accepting without deciding that the statute limits review to the written grounds, the
grounds identified in the May 3 letter suffice to support the denial. Beyond that, we see no reason
the legislature would have precluded a review of the record, limiting the analysis to a document
that is clearly intended to provide a summary of the reasons for the denial. This is particularly so,
given that the process often involves extensive written testimony and materials. Here, the letter
makes reference to the public hearings at which residents offered their views and information.
The substance of the letter, the fact that it was written after consideration of hundreds of
documents and public testimony, and its references to the other evidence and testimony are
enough to meet the requirements of WIS. STAT. § 66.0404(2)(d)4.
12
Because we conclude the Town’s denial of the CUP was supported with substantial
evidence and was not based on solely aesthetic concerns, we need not reach the Town’s other
arguments supporting its denial.

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By the Court.—Judgment affirmed.

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No. 2018AP580(C)

¶28 REILLY, P.J. (concurring). I concur but for a reason other than
those stated by the majority. Preemption laws, whether they be for
communication towers or landfills, are promulgated to address needs that benefit
the public but are subject to a “NIMBY” response—yes, we need cell towers, but
“not in my backyard.” Neither T-Mobile nor Eco-Site argues that the public’s
communication needs are not being met by the current towers in the Town. See 47
U.S.C. § 332(c)(7)(B)(i)(II) (2018). I would affirm on the Town’s fourth reason
for denial of the conditional use permit (CUP): (1) that Eco-Site did not explain
its efforts at collocation, i.e., Eco-Site did not explain why T-Mobile and others
could not utilize existing locations (the water tower that T-Mobile’s equipment is
on), and (2) that its “search ring” was “unnecessarily small.” See WIS. STAT.
§ 66.0404(2)(b)6.

¶29 T-Mobile has its antenna 1300 feet from the proposed site under
contract through 2031. While T-Mobile can save approximately $230,000 by
becoming the anchor tenant on Eco-Site’s tower and Eco-Site will profit by selling
the remaining locations on its tower to other communication companies, there has
been no showing that without Eco-Site’s tower the communication needs of the
Town would not be met.1 The fact that T-Mobile wants to save money and Eco-

1
T-Mobile paid the Village of Grafton $35,525.86 in 2017 for its lease. T-Mobile’s
savings would be approximately $230,000 if it moved to the Eco-Site tower. Eco-Site explained
that the proposed tower will “accommodate future collocation opportunities for other carriers.”
No. 2018AP580(C)

Site wants to make money is not a legitimate reason to override zoning
regulations.

¶30 Eco-Site argues that state and federal legislation bans the Town from
considering the views and opinions of the residents in close proximity to the
proposed tower (i.e., that the tower is ugly and the mere talk of a tower has
decreased property values). See WIS. STAT. § 66.0404(4)(g). Eco-Site’s concerns
might have merit if no communication service sites were available in the Town,
but when a governmental body has already provided areas for the infrastructure to
provide communication needs in the area,2 then communication companies are
rightfully required to abide by zoning laws and utilize the sites provided.

¶31 My fear is that by adopting either the argument of Eco-Site or the
reasoning of the majority, we end up with a conclusion that all property owners
have the right to put up a tower.

2
Eco-Site makes no argument that the Town is requiring that the communication
equipment may only be placed on property owned by the Town. See WIS. STAT. § 66.0404(4)(k).

2