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Can you hear me now? Good. Not in writing? Not good enough. The Wisconsin Court of Appeals, District II (“Appeals Court”) relayed this sentiment in a recent decision[1] to overturn the Town of Fond du Lac’s (“Town”) rejection of a conditional use permit (“CUP”) for a new mobile service tower because the Town failed to issue its final decision to the applicant in writing. This decision by the Appeals Court provides even greater deference to mobile service tower developers and property owners who wish to erect these towers on their property, which ordinarily involve lease arrangements spanning 20 to 40 years and annual rent payments to landowners in the tens of thousands of dollars.  More broadly, this decision may also impact landowner rights in other development projects.

Mobile service towers are now ubiquitous with our skylines, whether in a metropolis where generally found atop building roofs, or in the countryside where they often sit in farm fields along highways. Consumers’ want for constant connectivity, new demand for electronic data (e.g., streaming and AI), and the rise of 5G technology propel new tower sitings throughout Wisconsin. The state legislature recognized the need and importance of mobile service towers, evidenced in its 2013 enactment of Wisconsin Statute § 66.0404 (the “Siting Statute”). The Siting Statute namely sets forth guidelines and processes that “political subdivisions” (being a city, village, town, or county)[2] must follow in exercising its zoning authority when reviewing applications for new mobile service towers in their jurisdictions.

One key component of the Siting Statute provides that a political subdivision has ninety (90) days after its receipt of a complete application for a new mobile service tower to perform the following, or the applicant may consider its application approved:[3]

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 Wis. Stat. § 66.0404, 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.

The Siting Statute, in part, sets forth certain requirements that an applicant must meet, and sets limits on a political subdivision’s authority to reject applications, which authority must otherwise be grounded in a political subdivision’s local codes. Effectively, political subdivisions maintain discretion to approve or deny applications for mobile service towers but that discretion is not unfettered.

In U.S. Cell Co., the Town Board denied the applicant’s CUP on a potentially substantively valid basis, but never delivered its decision to the applicant in a written notification (with substantial evidence which supports the decision) within the 90-day timeline as required by the Siting Statute. The Town Board also did not deliver written meeting minutes to the applicant within this 90-day period. Interestingly, the applicant did not deny it knew of and understood the Town’s rejection.

The applicant filed for certiorari to appeal the Town’s decision alleging that the Siting Statute now entitled it to the CUP as a procedural matter because the Town failed to timely and fully comply with the Siting Statute’s notification requirements. The Town centered its defense on the applicant receiving notice of the decision via the Town’s website, correspondence between the parties’ attorneys, and by way of the applicant’s appearance at all relevant meetings where it learned the results of the Town’s review and decision. The Town posited that it substantially complied with the Siting Statute. The Fond du Lac County Circuit Court (“Circuit Court”) ruled in favor of the Town, and determined the Town met its obligations under the Siting Statute. The Circuit Court also highlighted that the Siting Statute provides aggrieved parties the right to certiorari if dissatisfied with a political subdivision’s decision on mobile tower siting, meaning the applicant could instead appeal the Town’s rejection on a substantive basis.[4]

The Appeals Court characterized the response obligations for a political subdivision under the Siting Statute as “straightforward”.[5] It further stated, “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 writing, and identify the substantial evidence relied upon if the application is disapproved”. [6] The Appeals Court then analyzed whether (1) the Town delivered written notification to the applicant, (2) whether the Town also provided substantial evidence supporting its decision, and (3) whether substantial compliance sufficed.

1. Written Notification – The Appeals Court determined the Siting Statute requires a political subdivision to deliver active and formal notice of its decision to the applicant in writing, and that a notification by other means – verbally or at a meeting or via a phone call – does not satisfy the Siting Statute.[7] Further, merely posting minutes on the Town’s website also fails to suffice. The Town erred in this regard.

2. Substantial Evidence – The Appeals Court determined a political subdivision’s notice of rejection must include substantial evidence identifying specific information it relied on in reaching its decision.[8] The Town erred in this regard.

3. Substantial Compliance – The Appeals Court noted the Siting Statute does not expressly provide substantial compliance is adequate, unlike other statutes. Statutes must be interpreted through their plain meaning and with the language selected by the legislature.[9] Further, the Siting Statute uses the word “shall” relative to a political subdivision’s obligation to deliver written notification, and the Appeals Court presumes use of such word means any attendant action is thereby mandatory and required.[10] Mandatory or required action necessitates actual, rather than substantial compliance.[11] Additionally, the Siting Statute’s imposition of a penalty (here being that an applicant may consider its application approved where no written notification of rejection is delivered within 90 days), evidenced the need for a political subdivision’s actual compliance over substantial compliance.[12]

Although the Appeals Court determined the notification obligation in the Siting Statute is clear and unequivocal, the Appeals Court also importantly highlights that the purpose of the statutory process is to enable an applicant to understand the basis of a rejection, and to facilitate timely and competent judicial review should the applicant appeal the decision.[13] The Town’s failure to issue written notification as required by the Siting Statute frustrated these purposes.

Lastly, the Appeals Court determined that the consequence of the Town’s failure to comply with the notification requirements under the Siting Statute entitles the applicant to proceed with construction of its tower as if the Town approved the CUP application, without further action from the Town.[14] This befalls a fortunate result for the applicant because even if the Town maintained a valid substantive basis for its rejection, the mobile service tower may now nevertheless proceed.

We at Michael Best have significant experience representing both mobile service tower developers seeking approvals from political subdivisions, as well as private landowners who enter into lease and/or easement arrangements with such developers or communication carriers as a way to leverage their properties for new revenue streams. Contact us today if you require assistance with any such projects or other developments.