United States Cellular Operating Company LLC v. Town of Fond du Lac

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.
February 12, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP85 Cir. Ct. No. 2023CV337

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN EX REL. UNITED STATES CELLULAR OPERATING
COMPANY LLC,

PETITIONER-APPELLANT,

V.

TOWN OF FOND DU LAC,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Fond du Lac County:
ANTHONY C. NEHLS, Judge. Reversed and cause remanded with directions.

Before Gundrum, P.J., Grogan and Lazar, JJ.
No. 2024AP85

¶1 GROGAN, J. WISCONSIN STAT. § 66.0404 (2021-22),1 Wisconsin’s
mobile tower siting law, governs a political subdivision’s authority to regulate
mobile tower siting and construction. Pursuant to this statute, political
subdivisions are authorized to enact zoning ordinances to regulate certain activities
including “[t]he siting and construction of … new mobile service support
structure[s] and facilities[,]” and where a political subdivision has chosen to do so,
a party must seek approval prior to constructing such a structure.
Sec. 66.0404(2)(a)1, (2)(b).

¶2 United States Cellular Operating Company LLC (US Cellular)
wished to construct a new mobile tower in Fond du Lac County so that it would no
longer need to lease space on another company’s tower, and it sought a conditional
use permit (CUP) from the Town of Fond du Lac (the Town) to do so. After the
Town Board denied US Cellular’s application following a verbal vote, US Cellular
sought declaratory judgment that its application was nevertheless deemed granted
by operation of law because the Town failed to provide it with a written
notification of the denial that detailed the reasons for the denial within WIS. STAT.
§ 66.0404(2)(d)’s ninety-day deadline for doing so. The circuit court denied
US Cellular’s request based on its conclusion that § 66.0404(2)(d) requires only
substantial compliance and that the Town had, in fact, substantially complied.
Because we conclude that § 66.0404(2)(d) requires actual compliance and that the
Town failed to actually comply with its requirements within the ninety-day
deadline, the court erred in denying US Cellular’s request for judgment on the

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2024AP85

pleadings and in dismissing US Cellular’s claim for declaratory judgment.2
Accordingly, US Cellular is entitled to approval of its CUP application by
operation of law based on § 66.0404(2)(d)’s plain language. We reverse the order
and remand with directions to the circuit court to enter an order granting
US Cellular’s declaratory judgment.

I. BACKGROUND

¶3 US Cellular leased space on SBA Communications Corporation’s
(SBA) “monopole service support structure” in Fond du Lac County for many
years for the purpose of providing cellular services to customers in the
Fond du Lac area. In late 2021, as its long-term lease with SBA neared its
December 31, 2023 end, US Cellular began evaluating the economic feasibility of
renewing its lease with SBA versus constructing its own monopole service support
structure in the Fond du Lac area, and it ultimately determined it would be more
economically feasible to construct its own tower nearby. According to
US Cellular, constructing its own tower would save it approximately $2.4 million
over the course of a typical thirty-year lease.

¶4 As part of its evaluation, US Cellular identified what it believed to
be an appropriate location approximately one quarter of a mile from the SBA

2
US Cellular also sought certiorari review before the circuit court on the grounds that
the Town’s decision violated WIS. STAT. § 66.0404(2)(h). The court dismissed US Cellular’s
certiorari claim, and US Cellular asks that we address the merits of its certiorari claim on appeal
regardless of our ruling on US Cellular’s declaratory judgment claim. Because our conclusion
that US Cellular was entitled to declaratory judgment is dispositive, we decline to do so. See
State v. Lickes, 2021 WI 60, ¶33 n.10, 397 Wis. 2d 586, 960 N.W.2d 855 (“Issues that are not
dispositive need not be addressed.” (quoted source omitted)); see also Martinez v. Rullman, 2023
WI App 30, ¶5, 408 Wis. 2d 503, 992 N.W.2d 853 (we decide cases on the narrowest possible
grounds).

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No. 2024AP85

structure on which it had been leasing space.3 US Cellular entered into a lease
with the property owner of the identified location and thereafter filed an
application for a CUP with the Town of Fond du Lac pursuant to WIS. STAT.
§ 66.0404(2)(b) and the Town’s local mobile tower siting ordinances.4
US Cellular’s application included an affidavit asserting that it would be
“economically burdensome” for it to continue collocating on SBA’s tower in light
of the purported $2.4 million savings if allowed to construct its own tower. See
§ 66.0404(2)(b)6.

¶5 The Town notified US Cellular that its application was considered
complete as of April 20, 2023, which triggered WIS. STAT. § 66.0404(2)(d)’s
ninety-day deadline. Based on the application completion date, that deadline was
July 19, 2023.

¶6 The Town thereafter held three meetings to consider and discuss
US Cellular’s application—two meetings of the Town Planning Commission on
May 11, 2023, and June 1, 2023, and a final meeting of the Town Board on
June 28, 2023. At the May 11th and June 1st meetings, the Planning Commission
heard public comments, which included comments from US Cellular’s and SBA’s
representatives, reviewed US Cellular’s application, and reviewed the relevant
statutes and local zoning ordinance codes. The Town’s attorney also explained

3
US Cellular searched for locations within a specific “search ring,” which is defined as
“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).
4
See TOWN OF FOND DU LAC, WIS., ORDINANCES § 13-3-3, https://townoffdl.com/wp-
content/uploads/2024/02/Zoning-Ordinance-Revised.pdf. The Town’s ordinances generally
incorporate WIS. STAT. § 66.0404’s requirements.

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No. 2024AP85

WIS. STAT. § 66.0404’s requirements to the Planning Commission, emphasized the
ninety-day deadline, explained the statutory limitations for denying US Cellular’s
application, and described the relevant ordinance for “special exceptions”
applicable to US Cellular’s request. See TOWN OF FOND DU LAC, WIS.,
ORDINANCES § 13-1-9(f)(2), https://townoffdl.com/wp-
content/uploads/2024/02/Zoning-Ordinance-Revised.pdf. Section 13-1-9(f)(2)
provides that:

Special exceptions may be authorized by the Board when it
appears:

a. That it is reasonably necessary for the public
convenience at that location.

b. That it is so designed, located, and proposed as to be
operated so that it will not be injurious to the district in
which it shall be located or otherwise detrimental to the
public welfare.

c. That it conforms to the applicable regulations and
standards of and preserves the essential character of the
district in which it shall be located.

¶7 During the June 1st meeting, the Planning Commission discussed the
three requirements for granting a special exception, focusing primarily on whether
US Cellular’s proposed mobile tower was “reasonably necessary for the public
convenience at that location.” See id. In that regard, various Planning
Commission members voiced concerns such as:

 There being only a minimal benefit to the public because
US Cellular’s coverage would not necessarily be “greater” but
rather only “different.”

 That a new tower would not “offer up a benefit to the -- to the
town -- or the town’s citizens by having another tower[.]”

 That US Cellular had not presented any information establishing
that construction of a new tower was “really … necessary[.]”

5
No. 2024AP85

 There was no “public benefit” to granting US Cellular’s
application.

 US Cellular’s tower being only approximately one quarter of a
mile from SBA’s tower would not offer any significant benefit in
coverage.

In summarizing the discussion and commentary, the Town’s attorney indicated
that while there did not appear to be any concern that US Cellular had satisfied
§ 13-1-9(f)(2)b or § 13-1-9(f)(2)c, US Cellular had nevertheless failed to establish
that the new tower was “reasonably necessary for the public convenience at that
location” as required by § 13-1-9(f)(2)a. Specifically, the Town’s attorney stated:

I think what I’m hearing is A is not met, and that’s the
criteria that says that the project is reasonably necessary for
the public convenience at that location. And again, I think
I say that because you’re -- your views that you’ve
expressed is the combination of doubling the number of
towers with not improving actual service to the public is
not reasonably necessary for the public convenience. So, I
think that what you are saying is that A is a no.

Various Planning Commission members confirmed this was accurate, and the
Planning Commission ultimately voted to recommend that the Town Board deny
US Cellular’s application on the basis that the tower was not reasonably necessary
at the location US Cellular identified. The approved June 1st meeting minutes,
which reflect the Planning Commission’s recommendation and position that
§ 13-1-9(f)(2)a “was not met because doubling the number of towers in the area
without improving coverage to the public isn’t reasonably necessary[,]” were
posted to the Town’s website on June 29, 2023.

¶8 The Town Board thereafter considered US Cellular’s application and
the Planning Commission’s recommendation at its June 28, 2023 meeting. As he
had at the Planning Commission meetings, the Town’s attorney advised the Board

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No. 2024AP85

of WIS. STAT. § 66.0404(2)(d)’s requirements, including the ninety-day deadline,
referenced the relevant zoning ordinances, and explained the criteria the Board
could not consider in deciding whether to approve or deny US Cellular’s
application. During the hearing, the Board heard public comments, including
statements from US Cellular’s and SBA’s representatives, many of which were
generally similar to the information provided at the two Town Planning
Commission meetings. After explaining to the Board that it could not “disapprove
an application based on [its] assessment of the suitability of other locations[,]” the
Town’s attorney indicated that he did not believe that the Planning Commission
had done so and that what the Planning Commission had instead concluded was
that “we don’t care where you [US Cellular] go, you just can’t be here” and that
US Cellular could apply for a CUP for a different location.

¶9 Ultimately, on a three-to-two vote, the Town Board accepted the
Planning Commission’s recommendation and denied US Cellular’s application
based on its conclusion that US Cellular failed to establish its proposed tower was
“reasonably necessary for the public convenience” at its desired location. See
§ 13-1-9(f)(2)a. In doing so, the Board adopted the Planning Commission’s
findings, and the minutes from the Town Board’s June 28th meeting reflect that it
“adopted the Planning Commission’s finding that the application does not meet
the requirement for being reasonably necessary for the public convenience at this
location.” It is not clear when, if ever, either the unapproved draft or approved
minutes from the Board’s June 28th hearing were posted on the Town’s website.
However, it is clear from the Record that the minutes from that meeting were not
submitted for approval until well after the July 19th deadline.

¶10 On July 5, 2023, US Cellular’s attorney notified the Town’s attorney
via email that she had “been authorized to file a certiorari action for judicial

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No. 2024AP85

review of the Town Board’s denial” of US Cellular’s CUP application, requested
that the Town’s attorney “provide … a copy of the Board’s written decision,” and
asked to be made aware “when the [Town Board meeting] minutes are filed with
the clerk” “[i]f the only record of the Board’s decision is as reflected in the
minutes[.]” The Town’s attorney acknowledged receipt of US Cellular’s request
two days later and indicated that he would “check … about the status of the
meeting minutes and get back to [her] soon.”

¶11 On July 27, 2023, eight days after the July 19th deadline for the
Town to notify US Cellular of its decision in writing pursuant to WIS. STAT.
§ 66.0404(2)(d), US Cellular’s attorney notified the Town’s attorney via email that
as of that date, US Cellular had not “received any written decision” regarding its
application and that “the minutes of the June 28th … Town Board” meeting had
not yet “been posted on the Town’s website.” The email further informed the
Town’s attorney that pursuant to § 66.0404(2)(d), it was US Cellular’s position
that the Town’s failure to provide it with a written decision “result[ed] in default
approval of the application” and requested that the Town’s attorney reach out “to
discuss the procedure by which a CUP will be issued and proposed conditions.”

¶12 The Town’s attorney responded via email on July 31, 2023, and
stated he would “send … the minutes and audio asap” and that he “believe[d] that
between those things, U.S. Cellular’s in person attendance at all of the relevant
meetings, and [the attorneys’] discussions about the specific grounds for the
Town’s denial, the Town still substantially complied with the notice

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No. 2024AP85

requirements.”5 Counsel concluded the email by stating that he would “get
[US Cellular] written materials as well.” On August 8, 2023, the Town’s attorney
again contacted US Cellular’s attorney by email, and that email attached the
minutes from the Town Board’s June 28th meeting. Counsel further noted that the
minutes would “be formally approved by the Board at its meeting on Monday”
and that the Board would be “discuss[ing] this matter[.]”6

¶13 US Cellular ultimately filed a Summons and Complaint in
August 2023, asserting claims for declaratory judgment, see WIS. STAT. § 806.04,
and for certiorari review. As to its declaratory judgment action, US Cellular
alleged it was “entitled to judgment declaring that its application for a CUP … is
approved because” the Town had failed to comply with WIS. STAT.
§ 66.0404(2)(d)’s ninety-day deadline for providing it with written notification of
the Town’s decision and asked that judgment be entered declaring that its CUP
application was “approved by operation of law[.]” As to its certiorari claim,
US Cellular alleged that “[t]he Town Board exceeded its jurisdiction by
attempting to regulate the permitting of a mobile service support structure in

5
Attorneys for US Cellular and the Town had previously exchanged emails in June 2023
regarding US Cellular’s belief that the Town’s “reasonably necessary for the public convenience
at that location” requirement violated WIS. STAT. § 66.0404(2)(h). Those emails also referenced
US Cellular’s “understand[ing] that the ground for recommending denial of the CUP was a
finding” based upon § 13-1-9(f)(2)a of the Town Zoning Ordinance.
6
The emails between US Cellular’s attorney and the Town’s attorney reveal that the
Town’s attorney was in the midst of addressing a serious health issue during the ninety-day time
period during which WIS. STAT. § 66.0404(2)(d) required the Town to provide US Cellular with
written notification of its final decision. The Town highlights its attorney’s health issues in its
brief and seems to imply that its attorney’s health issues may have contributed to its failure to
provide US Cellular with the requisite written notification. We note that the Town’s attorney
during the relevant 2023 time period is not the attorney of record at this time. While we are
sympathetic to counsel’s health and personal circumstances, those circumstances do not relieve
the Town of its obligations under § 66.0404(2)(d).

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No. 2024AP85

excess of the authority granted to a political subdivision in WIS. STAT. § 66.0404”
and that the Board had also “proceeded under incorrect theories of law in denying
[US Cellular’s] application for a CUP.” The Town denied the allegations.

¶14 US Cellular subsequently sought judgment on the pleadings pursuant
to WIS. STAT. § 802.06(3). According to US Cellular, judgment on the pleadings
was appropriate because the Town, despite denying that it had failed to comply
with WIS. STAT. § 66.0404(2)(d), had nevertheless failed to provide any evidence
that it actually had complied.7

¶15 In response to US Cellular’s declaratory judgment argument, the
Town countered by first asserting that US Cellular failed to comply with WIS.
STAT. § 893.80(1d), the notice of claim statute, and that even if it had complied
with § 893.80(1d), the Town either had complied with WIS. STAT. § 66.0404(2)(d)
or, if it had not actually complied, that it had nevertheless substantially complied.
The Town also asserted that even if it did not comply with § 66.0404(2)(d),
US Cellular was not entitled to a CUP “as a matter of law” based on “separation of
powers principles” and that the proper remedy would, instead, be a “remand[]
back to the Town Board for the purpose of issuing a conditional use permit that
contains restrictions and conditions.” As to its assertion that it had complied with
§ 66.0404(2)(d), either in actuality or substantially, the Town argued that
US Cellular had received the statutorily required notice “in various ways[,]”
including “on the Town’s website, the written correspondence between the Town

7
US Cellular filed a separate brief in the circuit court regarding its certiorari claim and
argued that the circuit court should reverse the Town’s decision because the Town had violated
WIS. STAT. § 66.0404. However, because we need not address US Cellular’s certiorari
arguments, see supra note 2, we do not include a recitation of the certiorari arguments the parties
raised before the circuit court.

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No. 2024AP85

Attorney and Plaintiff’s Attorney, and by way of Plaintiff’s appearance at all
relevant meetings wherein they learned the results of the Town’s review and
decision on the application.”

¶16 The circuit court held a hearing in December 2023 and issued an oral
ruling, based on the pleadings and the parties’ submissions, denying US Cellular’s
motion for judgment on the pleadings and dismissing US Cellular’s declaratory
judgment action.8 In reaching this conclusion, the circuit court determined,
inter alia, that:

 The Town appeared to have “acknowledge[d] that it did not
provide a written decision per se, but contends that [it]
substantially complied with the statute because [US Cellular] was
present for all of the hearings.”

 US Cellular’s attorney and the Town’s attorney had exchanged
emails “detailing the denial from the zoning commission or the
planning commission” and the Commission’s reasons for
recommending the denial.

 US Cellular was “clearly … noticed that [the Town] denied [its]
application for the conditional use permit and the rationale
behind the denial at the June 28th board meeting because [it] sent
a timely appeal on that decision, which included the subject line,
Appeal of Town of Fond du Lac’s Denial of U.S. Cellular
Conditional Use Permit.”

The circuit court then applied what it believed to be WIS. STAT. § 66.0404’s
purpose—ensuring “that applicants are timely noticed of the acceptance or denial
of their applications for conditional use permits”—to those facts and denied
US Cellular’s request because it believed that if it granted US Cellular’s request, it
“would be taking away the right of the parties to have their bona fide issues or

8
The circuit court also dismissed the certiorari action.

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No. 2024AP85

substantive issues resolved by the Court.” The circuit court also explained that it
was denying declaratory judgment because US Cellular was “aware” of the Town
Board’s decision and that US Cellular had “substantial evidence provided to [it], at
least from the [Town’s] point of view supporting that decision.”9

¶17 As to the Town’s argument that US Cellular’s claims must be
dismissed because US Cellular failed to satisfy the notice of claim statute, the
circuit court “f[ound] that argument unpersuasive” and noted that “[t]he statute
and the ordinance clearly set up the available avenues of recourse for” an
aggrieved party and that it “spells out the certiorari avenue … and … declaratory
judgment would be available.” The circuit court also rejected the Town’s
argument that the doctrine of separation of powers prevented it from granting
US Cellular’s declaratory judgment action, stating that “checks and balances”
afforded it “oversight to review town board’s and other political subdivision’s
decisions and give the aggrieved party recourse against such decisions” and that it
clearly “has the authority to remand the case back to the Town to impose -- to
approve the conditional use permit and to impose certain conditions to that.”

¶18 The circuit court subsequently filed a written order confirming its
oral ruling, and US Cellular now appeals.

9
It is unclear why the circuit court focused on—and seemingly at least partially based its
decision on—the Town’s apparent belief that it had provided substantial evidence. The question
is not whether a political subdivision thinks it identified substantial evidence—the question is
whether a political subdivision actually did so as required by WIS. STAT. § 66.0404(2)(d)4.

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No. 2024AP85

II. STANDARD OF REVIEW

¶19 “A judgment on the pleadings is essentially a summary judgment
decision without affidavits and other supporting documents.” Southport
Commons, LLC v. DOT, 2021 WI 52, ¶18, 397 Wis. 2d 362, 960 N.W.2d 17. In
reviewing a request for judgment on the pleadings, “‘[w]e first examine the
complaint to determine whether a claim has been stated[,]’” and “‘[i]f so, we then
look to the responsive pleading to ascertain whether a material factual issue
exists.’” DeBraska v. Quad Graphics, Inc., 2009 WI App 23, ¶12, 316 Wis. 2d
386, 763 N.W.2d 219 (citation omitted). “Judgment on the pleadings is proper
only if there are no genuine issues of material fact.” Southport Commons, LLC,
397 Wis. 2d 362, ¶18; WIS. STAT. § 802.06(3). Whether a party is entitled to
judgment on the pleadings is a question of law we review de novo. Southport
Commons, LLC, 397 Wis. 2d 362, ¶18.

¶20 “‘A decision to grant or deny declaratory relief falls within the
discretion of the circuit court[,]’” and we will not disturb the circuit court’s ruling
unless it “‘erroneously exercised its discretion.’” Putnam v. Time Warner Cable
of Se. Wis., Ltd. P’ship, 2002 WI 108, ¶40, 255 Wis. 2d 447, 649 N.W.2d 626
(quoting Milwaukee Dist. Council 48 v. Milwaukee County, 2001 WI 65, ¶36,
244 Wis. 2d 333, 627 N.W.2d 866); Olson v. Town of Cottage Grove, 2008 WI
51, ¶35, 309 Wis. 2d 365, 749 N.W.2d 211. We will uphold a circuit court’s
discretionary act so long as it “examined the relevant facts, applied a proper
standard of law, and, using a demonstrated rational process, reached a conclusion
that a reasonable judge could reach.” Milwaukee Dist. Council 48, 244 Wis. 2d
333, ¶36 (quoted source omitted); Olson, 309 Wis. 2d 365, ¶35.

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No. 2024AP85

III. DISCUSSION

¶21 Our review of the circuit court’s order denying US Cellular’s motion
for judgment on the pleadings and dismissing its claim for declaratory judgment
requires that we construe WIS. STAT. § 66.0404(2)(d) and whether the Town
complied with that statute’s requirements.10 Pursuant to what is by now a
well-known framework, we review questions of statutory interpretation de novo,
State v. Lickes, 2020 WI App 59, ¶16, 394 Wis. 2d 161, 949 N.W.2d 623, and we
interpret statutes using the well-established methodology articulated in State ex
rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681
N.W.2d 110. When reviewing statutory language, we “ascertain and apply the
plain meaning of the statutes as adopted by the legislature.” White v. City of
Watertown, 2019 WI 9, ¶10, 385 Wis. 2d 320, 922 N.W.2d 61. “[S]tatutory
interpretation ‘begins with the language of the statute[,]’” and the “language is

10
The Town argues in its Response brief that US Cellular’s declaratory judgment action
fails at the outset based on its assertion that US Cellular failed to comply with WIS. STAT.
§ 893.80(1d), the notice of claim statute. The circuit court summarily rejected this argument,
explaining that “[t]he statute and the ordinance clearly set up the available avenues of recourse
for a party aggrieved by this political subdivision … and actually, declaratory judgment would be
available.” The Town does not address the circuit court’s specific basis for rejecting its notice-of-
claim defense. Instead, it argues that even if US Cellular could demonstrate the Town had actual
notice of its claim, it was prejudiced because it was forced into “costly litigation” instead of
having an opportunity to negotiate a resolution. As the party asserting that the circuit court erred,
the Town carried the burden of demonstrating that the circuit court’s decision summarily
rejecting its notice-of-claim defense was erroneous. See Gaethke v. Pozder, 2017 WI App 38,
¶36, 376 Wis. 2d 448, 899 N.W.2d 381. The Town failed to meet that burden. It does not present
any argument as to why the circuit court’s specific grounds for denying its notice-of-claim
defense were in error. Further, we are not convinced that the Town, which knew it had missed
the statutory ninety-day deadline, could have engaged in negotiations with US Cellular regarding
the CUP after the Town missed the deadline given the statutory language explicitly stating that
after the deadline, the CUP is deemed approved. The Record also demonstrates that based on the
attorneys’ email exchanges, the Town had actual notice of US Cellular’s intent to file suit.
Therefore, we decline to address this issue further. See State v. Gracia, 2013 WI 15, ¶28 n.13,
345 Wis. 2d 488, 826 N.W.2d 87 (explaining that we do not have to address underdeveloped
arguments).

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No. 2024AP85

given its common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or special definitional
meaning.” Kalal, 271 Wis. 2d 633, ¶¶45-46 (citation omitted) (“Context is
important to meaning. So, too, is the structure of the statute in which the operative
language appears. Therefore, statutory language is interpreted in the context in
which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.”).

¶22 A statute is unambiguous if the interpretative process set forth above
“‘yields a plain, clear statutory meaning[.]’” Id., ¶46 (citation omitted). If a
statute “is unambiguous, there is no need to consult extrinsic sources of
interpretation, such as legislative history.” Id. “[A] statute is ambiguous if it is
capable of being understood by reasonably well-informed persons in two or more
senses.” Id., ¶47. “[D]isagreement about the statutory meaning” “is not enough”
to render a statute ambiguous. Id. Rather, “the test for ambiguity examines the”
statutory language “to determine whether ‘well-informed persons should have
become confused,’ that is, whether the statutory … language reasonably gives rise
to different meanings.” Id. (quoted source; omission in original).

A. Interpreting the text of WIS. STAT. § 66.0404

¶23 The text of WIS. STAT. § 66.0404(2)(d), which sets forth certain
actions a political subdivision must take in addressing an application submitted
under the mobile tower siting law, is straightforward and, frankly, unremarkable.

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No. 2024AP85

It begins by setting forth a ninety-day deadline11 for actions a political subdivision
such as the Town “shall” complete to avoid the consequence of the applicant being
allowed to “consider the application approved”—in other words, being deemed
approved by operation of law. See id. Specifically, after a political subdivision
confirms an application is complete, see § 66.0404(2)(c), the political subdivision
must:

1. Review the application to determine whether it
complies with all applicable aspects of the political
subdivision’s building code and, subject to the
limitations in this section, zoning ordinances.

2. Make a final decision whether to approve or disapprove
the application.

3. Notify the applicant, in writing, of its final decision.

4. If the decision is to disapprove the application, include
with the written notification substantial evidence which
supports the decision.

Section 66.0404(2)(d)1-4. The statute also provides that if the political
subdivision does not complete each of the four enumerated actions before that
ninety-day deadline, “the applicant may consider the application approved” unless
the applicant and political subdivision agree, in writing, to extend the deadline.
Section 66.0404(2)(d).

¶24 Simply put, there is nothing overtly complicated or confusing about
this language—it explains in four simple steps that a political subdivision must
review the application, make a decision, notify the applicant of the decision in

11
WISCONSIN STAT. § 66.0404(2)(d) allows parties to agree to extend the ninety-day
deadline; however, it is undisputed that US Cellular declined to agree to such an extension here
despite the Town’s request that it do so.

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No. 2024AP85

writing, and identify the substantial evidence relied upon if the application is
disapproved.12 Despite the seeming clarity of this statutory language, in order to
resolve the issue currently before us, we must determine what constitutes a
“notif[ication to] the applicant, in writing” as well as what qualifies as “substantial
evidence which supports the decision.” See id. We must also determine whether a
political subdivision is required to actually comply with the enumerated actions or
whether substantial compliance will suffice, which is at the core of the current
dispute.

¶25 We begin with the requirement that a political subdivision must
“[n]otify” “the applicant[.]” WIS. STAT. § 66.0404(2)(d)3. “Notify” is not
statutorily defined; however, it is commonly understood to mean “to give formal
notice to” or “to give notice of[.]” See Notify, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/notify (last visited Jan. 16, 2025);
see also Notify, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE, https://ahdictionary.com/word/search.html?q=notify (last visited
Jan. 16, 2025) (“To give notice to; inform”). Each of these definitions suggests
that the party undertaking to “notify” someone or something engages in an
affirmative action, and based on § 66.0404(2)(d)3, that action must be directed
toward “the applicant”—in other words, the person who or entity that filed the
application at issue. It therefore follows that the requirement that a political
subdivision must “notify” “the applicant” can mean only one thing: The political
subdivision must actively and formally inform the applicant of something.

12
The parties do not dispute that the Town complied with the first two requirements
within ninety days of US Cellular’s application having been deemed complete. See WIS. STAT.
§ 66.0404(2)(d). Accordingly, this opinion primarily focuses only on the meaning of
§ 66.0404(2)(d)3 and (d)4.

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No. 2024AP85

¶26 As for specifically what the political subdivision must formally
inform the applicant of, the text of the statute is similarly straightforward. The
political subdivision must formally inform the applicant of its “final decision”
regarding the application. See WIS. STAT. § 66.0404(2)(d)3. The statute also
plainly sets forth how the political subdivision is to do this.
Section 66.0404(2)(d)3 provides the political subdivision must do so “in
writing[.]” See id. A notification by any other means—verbally at a meeting or
during a phone call or other type of conversation—will not satisfy the plain
meaning of the statute.

¶27 WISCONSIN STAT. § 66.0404(2)(d)4 also tells the political
subdivision that “the written notification” must “include” specific information—
“substantial evidence which supports the decision”—if it disapproves the
application. See id. “Include” is readily understood to mean something
“contain[ed] between or within[.]” See Include, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/include (last visited
Jan. 16, 2025) (second definition). Thus, when a political subdivision’s final
decision is to “disapprove the application,” it must “include”—in other words
make part of the written notification—the substantial evidence relied upon. See
§ 66.0404(2)(d)4.

¶28 Finally, WIS. STAT. § 66.0404(2)(d) informs a political subdivision
that it must complete these actions within a specific timeframe—ninety days after
deeming an application complete. Failure to do so, the statute explains, results in
the applicant being authorized to “consider [its] application approved[.]” Id.
Reading these statutory provisions together, § 66.0404(2)(d) clearly and
unambiguously requires that within ninety days of deeming an application
complete, a political subdivision must review the application, make a final

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No. 2024AP85

decision regarding approval, and formally inform the applicant of the decision in
writing, which, if the application is denied, must also include the identification of
the specific information relied upon in disapproving the application.

¶29 Having identified the clear steps a political subdivision must take to
comply with WIS. STAT. § 66.0404(2)(d), we must next determine whether
§ 66.0404(2)(d) requires actual compliance or whether, instead, substantial
compliance will satisfy the statutory commands.

B. Substantial Compliance

¶30 Whether a statute allows for substantial compliance is a question of
statutory interpretation we review de novo. Pritchard v. Mead, 155 Wis. 2d 431,
437, 455 N.W.2d 263 (Ct. App. 1990). We first look to the text of the statute to
determine whether substantial compliance will be satisfactory. The text of WIS.
STAT. § 66.0404(2)(d) tells us three things.

¶31 First, WIS. STAT. § 66.0404(2)(d) does not contain an express
statement allowing for substantial compliance as other statutes do. For example,
WIS. STAT. § 66.1333(11)(c) explicitly states that “[t]he provisions of this
subsection shall be construed liberally to effectuate its purposes and substantial
compliance is adequate.” Id. (emphasis added); see also WIS. STAT. § 111.07(12)
(“A substantial compliance with the procedure of this subchapter shall be
sufficient[.]” (emphasis added)). The legislature did not include the substantial
compliance option in this statute. Instead, it chose language specifically signaling
the need for actual compliance.

¶32 Second, WIS. STAT. § 66.0404(2)(d) uses the word “shall” in
identifying the specific actions a political subdivision must take to ensure it has a

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No. 2024AP85

say in whether to approve or disapprove an application, solidifying our conclusion
that substantial compliance is insufficient. When interpreting statutes, we will
generally “presume that the word ‘shall’ is mandatory”—in other words, that the
enumerated action is required. See Heritage Farms, Inc. v. Markel Ins. Co.,
2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465; see also State v. Brott, 2023
WI App 45, ¶19, 409 Wis. 2d 96, 996 N.W.2d 78, review denied 2024 WI 12, 6
N.W.3d 875; Village of Elm Grove v. Brefka, 2013 WI 54, ¶¶25-26, 348 Wis. 2d
282, 832 N.W.2d 121 (“The inclusion of a penalty for noncompliance suggests
that the term ‘shall’ is mandatory.”).

¶33 Mandatory language is a factor signaling the statute requires actual
rather than substantial compliance. See Midwest Mut. Ins. Co. v. Nicolazzi, 138
Wis. 2d 192, 198, 405 N.W.2d 732 (Ct. App. 1987) (“‘If the provision is essential
it is mandatory. A departure from it is fatal to any proceeding to execute the
statute or to obtain the benefit of it.’” (citation omitted)). Here, WIS. STAT.
§ 66.0404(2)(d) instructs that “[w]ithin 90 days of its receipt of a complete
application, a political subdivision shall complete all of the following or the
applicant may consider the application approved[.]” Id. (emphases added). The
“shall” in this statute identifies mandatory actions. The legislature’s use of the
word “shall” in conjunction with a penalty—rescinding the political subdivision’s
right to disapprove an application, which we address next—signals that actual
compliance is required.

¶34 Third, the legislature included a penalty in the text of WIS. STAT.
§ 66.0404(2)(d), which means the statute requires actual compliance. See
Pritchard, 155 Wis. 2d at 439. “[W]here a legislative provision is accompanied
by a penalty for failure to observe it, the provision is held to be mandatory and
substantial compliance will not suffice.” Id. Section 66.0404(2)(d) provides that

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No. 2024AP85

“a political subdivision shall” complete four enumerated actions to avoid the
consequence of an applicant being allowed to “consider [its] application
approved[.]” (Emphasis added.) This consequence is tantamount to a penalty in
that failure to comply with those actions negates the political subdivision’s
authority to deny an application.

¶35 In addition, when interpreting whether a statute may be satisfied
through substantial compliance, we keep in mind that “the purpose of statutory
interpretation is to determine what the statute means so that it may be given its
full, proper, and intended effect.” State v. Williams, 2014 WI 64, ¶20, 355
Wis. 2d 581, 852 N.W.2d 467 (quoted source omitted). The readily discernable
purpose of WIS. STAT. § 66.0404(2)(d) is to ensure that applicants for a CUP
related to mobile tower siting receive a specific type of notice (one that is written)
within a specified timeframe (ninety days after the application is complete) and
that it contains the substantial evidence the political subdivision relied on to
disapprove the application. The central objective of the statute discernable from
the text itself is that with mobile tower siting applications, the legislature
determined that if a political subdivision fails to comply with the statutory
requisites before the ninety-day deadline passes, the applicant “may consider the
application approved.”

¶36 Affording political subdivisions the option to substantially comply
with the statute’s terms would thwart the purpose of WIS. STAT. § 66.0404(2)(d)—
for applicants to receive a timely written notice containing the substantial evidence
and reasoning for the political subdivision’s rejection of the application. This
allows a disapproved applicant to determine whether the political subdivision’s
reason complied with the law rather than having to piece together the political
subdivision’s reason from the potentially numerous oral statements made by

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No. 2024AP85

various individuals during a meeting. It also facilitates timely and competent
judicial review by providing a single, clear, written explanation as to the reason
for disapproving the application. Without actual compliance, an applicant is left
guessing whether the political subdivision’s actions “substantially complied,” and
judicial review then becomes difficult. In the absence of an adequate written
notification, a court cannot review a political subdivision’s rationale, but is instead
forced to review the rationale by piecing together all of the individual comments
made during a meeting.

¶37 Although we have already confirmed that WIS. STAT.
§ 66.0404(2)(d) requires actual compliance, we note that the Town errs in relying
on cases such as Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI
50, ¶¶48-50, 362 Wis. 2d 290, 865 N.W.2d 162, and Lamar Central Outdoor, Inc.
v. Board of Zoning Appeals, 2005 WI 117, 284 Wis. 2d 1, 700 N.W.2d 87, in
support of its assertion that those cases set forth “well-established rules of local
government proceedings involving CUPs” and that substantial compliance with
§ 66.0404(2)(d) is sufficient because those cases do not “require more” in terms of
what is required of a municipality’s written decisions. Specifically, the Town
asserts that those cases stand for the proposition that a political subdivision is not
required to issue a formal written decision regarding CUP applications so long as
the political subdivision’s decision can be readily gleaned elsewhere. See Oneida
Seven Generations Corp., 362 Wis. 2d 290, ¶¶48-50 (“municipal administrative
decisions need not be in writing”; “a detailed or explicit explanation of the City’s
reasoning is not necessary”); Lamar Cent. Outdoor, Inc., 284 Wis. 2d 1, ¶31
(“[A] written decision is not required as long as a board’s reasoning is clear from
the transcript of its proceedings.”). Neither Oneida Seven Generations Corp. nor
Lamar Central Outdoor, Inc., however, involved a statute such as

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No. 2024AP85

§ 66.0404(2)(d), where the statutory text clearly requires that the political
subdivision provide the applicant with a written notification and that the written
notification also identifies the substantial evidence relied upon if the political
subdivision’s decision is to disapprove the application. The cases relied on by the
Town are clearly distinguishable and simply do not support the Town’s position
that substantial compliance with § 66.0404(2)(d) is sufficient.

C. The Town Did Not Actually Comply with WIS. STAT. § 66.0404(2)(d).

¶38 Having identified what WIS. STAT. § 66.0404(2)(d) requires of a
political subdivision and having determined that the political subdivision must
actually comply, we must next determine whether the Town complied with the
statute here. Based on our review of the Record, we conclude that it did not.

¶39 It is undisputed that the Town reviewed US Cellular’s application
and reached a final decision to disapprove the application at the Town Board
meeting, thereby satisfying WIS. STAT. § 66.0404(2)(d)1 and 2. However, the
Town Board’s decision at that meeting was rendered orally—not in writing—and
as the following discussion explains, at no point on or before the July 19, 2023
deadline did the Town formally notify US Cellular of that decision in writing.
And, having failed to provide written notification, the Town necessarily failed to
identify the substantial evidence it relied upon in voting to deny US Cellular’s
application. Consequently, the Town did not comply with § 66.0404(2)(d)3 and 4.

¶40 In reaching this conclusion, we reject the Town’s apparent argument
that posting the approved meeting notes from the Planning Commission’s
meetings—not the approved meeting notes from the Town Board’s later
meeting—prior to the July 19th deadline satisfied the written notification
requirement. First, simply making the notes from those meetings available to the

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No. 2024AP85

public on the Town’s website does not constitute a formal written notification to
US Cellular, and the statute makes clear that it is the Town that is required to take
action—it is not US Cellular that must undertake action and seek out a written
decision. In other words, it is not enough to post meeting notes on a website and
simply hope the applicant finds them. Rather, the plain text of the statute required
that the Town act to contact US Cellular directly. Second, even if posting meeting
notes was somehow sufficient to meet the written notification requirement, the
meeting notes posted here were from the Planning Commission’s meetings, and
the Planning Commission was only responsible for making a recommendation to
the Town Board—it was not responsible for rendering the final decision. The final
decision-making authority rested with the Town Board.

¶41 The Town likewise points to email correspondence between its
attorney and US Cellular’s attorney on June 8th, June 27th, and July 5th—all prior
to the July 19th deadline—as satisfying WIS. STAT. § 66.0404(2)(d) because “the
Town Attorney and [US Cellular’s] Attorney discuss[ed] the denial and evidence
relied upon[.]” We reject the Town’s contention.

¶42 First, the Town Board meeting did not occur until June 28th, which
was after the first two emails the Town points to in support of its position. The
suggestion that emails sent prior to the meeting at which the Town Board voted on
US Cellular’s application somehow satisfies WIS. STAT. § 66.0404(2)(d) is
nonsensical at best and is borderline frivolous. Second, US Cellular’s attorney—
not the Town’s attorney—sent the July 5th email. An email from US Cellular’s
attorney cannot satisfy the requirement that the Town notify US Cellular of its
final decision in writing. Additionally, in the July 5th email, US Cellular’s
attorney requested “a copy of the Board’s written decision and [asked that
counsel] advise when the decision is filed with the clerk.” This request suggests

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No. 2024AP85

that at least as of July 5th, which was still prior to the July 19th deadline,
US Cellular had not received any written notification from the Town regarding the
Board’s final decision, and the Town attorney’s follow-up email on July 7th
stating that he would “check with the Clerk about the status of the meeting
minutes” suggests that the Town indeed had yet to provide US Cellular with any
type of written notification. Finally, even if the July 5th email indicated that
US Cellular was aware of the final decision and the reason for the Town’s denial,
US Cellular’s knowledge does not establish that the Town complied with the
statute’s written notification requirement.

¶43 Relatedly, we also reject the Town’s assertion that US Cellular’s
attendance at the two Planning Commission meetings and the Town Board
meeting satisfied WIS. STAT. § 66.0404(2)(d)’s requirements. Again,
§ 66.0404(2)(d)3 specifically requires that the Town provide US Cellular with
written notification of its final decision, not an oral notification at the meeting.
Moreover, US Cellular’s presence at the Town Board meeting where it heard a
number of individuals expressing their own thoughts and reasons before the Town
Board’s oral vote is very different from the statutory requisite that the Town
provide US Cellular with a formal written notification identifying the substantial
evidence it relied upon in disapproving the CUP.

¶44 Accepting the Town’s position that US Cellular’s presence at the
three meetings satisfies the notice provision would also require us to rewrite the
statute and force us to ignore its express provisions. Construing WIS. STAT.
§ 66.0404(2)(d) as the Town requests would render the written notice provision
meaningless. We are not permitted to rewrite statutes or render an interpretation
that fails to give meaning to each word. See Kalal, 271 Wis. 2d 633, ¶46
(“Statutory language is read where possible to give reasonable effect to every

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No. 2024AP85

word, in order to avoid surplusage.”); Segregated Acct. of Ambac Assurance
Corp. v. Countrywide Home Loans, Inc., 2017 WI 71, ¶15, 376 Wis. 2d 528, 898
N.W.2d 70 (noting that our job is to interpret the statute, not rewrite it).

D. The text of the statute deems the CUP approved by operation of law.

¶45 Based on the foregoing, we conclude that the Town failed to comply
with WIS. STAT. § 66.0404. Having reached this conclusion, we must next address
the Town’s assertion that a political subdivision’s failure to comply with
§ 66.0404(2)(d) does not ultimately result in the application being approved by
operation of law. According to the Town, while § 66.0404(2)(d) plainly states that
“the applicant may consider [its] application approved” if a political subdivision
fails to comply with the ninety-day deadline, the statute, it says, is nevertheless
silent as “to whether the approving body has or must approve the application let
alone the conditions or terms the approving body may place on such approval” and
that “the plain language about what the application may consider – or, stated
differently, the applicant’s expectations – says nothing about the approving body’s
position on the matter.” Again, we disagree with the Town’s contention.

¶46 WISCONSIN STAT. § 66.0404(2)(d) provides, in no uncertain terms,
that US Cellular was entitled to consider its application approved due to the
Town’s failure to comply with the ninety-day deadline. This can only mean that
US Cellular was therefore entitled to proceed with the activity for which it sought
approval in its application. Construing this language as the Town suggests—that
US Cellular could believe that its application was approved while somehow still
allowing the Town to not approve it—would lead to an absurd result wherein
US Cellular would be left to wonder if it actually could move forward with its
plans or if it was instead required to play “wait and see” as to what step the Town

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No. 2024AP85

may or may not take next after the Town itself failed to comply with the statute.
We do not construe statutes in a manner that leads to “absurd or unreasonable
results.” See Kalal, 271 Wis. 2d 633, ¶46.

¶47 Accordingly, because the Town did not satisfy the requirement that
it notify US Cellular of its decision in writing by the July 19, 2023 deadline,
US Cellular was entitled to “consider [its] application approved[.]” See WIS.
STAT. § 66.0404(2)(d). In other words, because the Town failed to satisfy the
applicable statutory requirements by the deadline, US Cellular’s application was
deemed approved by operation of law. The Town’s failure to comply with the
statute does not mean it gets a do-over. The text of the statute is clear—the CUP
is deemed approved.

¶48 In reaching this conclusion, we do not, contrary to the Town’s claim,
violate the separation of powers principle. The interpretation of laws and the
application of facts to those laws are core responsibilities of the judicial branch,
and interpreting the law and applying that law to the facts presented is precisely
what we have done here. See, e.g., Operton v. LIRC, 2017 WI 46, ¶73, 375
Wis. 2d 1, 894 N.W.2d 426 (R. Grassl Bradley, J., concurring) (“the court’s duty
to say what the law is” is a “core judicial function”); see also Gabler v. Crime
Victims Rts. Bd., 2017 WI 67, ¶37, 376 Wis. 2d 147, 897 N.W.2d 384 (the judicial
branch declares what the law is; “the Wisconsin Constitution entrusts the judiciary
with the duty of interpreting and applying laws”).

¶49 The Town may not like the consequence the legislature chose for a
political subdivision’s failure to comply with the dictates of WIS. STAT.
§ 66.0404(2)(d), but it is our job to apply the plain meaning of the statute, not
override the legislature’s enacted laws. We also reject the Town’s claim that

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No. 2024AP85

applying the plain meaning of the statute somehow interferes with the Town’s
control over the CUP process. While approval of US Cellular’s application by
operation of law may be contrary to the Town’s oral vote at the Town Board
meeting, the Town’s failure to satisfy each of the four actions set forth in
§ 66.0404(2)(d)1-4 was itself a decision the Town chose to make. The Town’s
inaction, in effect, changed its decision from disapproval to approval. The Record
makes clear that the Town Board knew the consequences for failing to meet the
ninety-day deadline, and yet it still failed to act. The fact that it no longer controls
the CUP decision is a direct result of the Town’s failure to comply with the plain
text of the statute.

IV. CONCLUSION

¶50 WISCONSIN STAT. § 66.0404(2)(d) sets forth certain actions a
political subdivision must complete if it wishes to retain the ability to deny an
application for a CUP under the state’s mobile tower siting law, and actual
compliance with those actions is required. Here, the Town clearly failed to
comply with those requirements, and the circuit court erred as a matter of law in
concluding otherwise. Accordingly, US Cellular is entitled to approval of its CUP
application by operation of law based on § 66.0404(2)(d)’s plain language. We
reverse and remand to the circuit court with directions to enter an order granting
US Cellular’s declaratory judgment.

By the Court.—Order reversed and cause remanded with directions.

Recommended for publication in the official reports.

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