PUBLISHED OPINION
Case No.: 95-2097
Complete Title
of Case:
WESTEL - MILWAUKEE COMPANY, INC.,
d/b/a CELLULAR ONE,
Plaintiff-Appellant,
v.
WALWORTH COUNTY, a municipal
corporation, WALWORTH COUNTY
PARK AND PLANNING COMMISSION,
FRANCIS H. DOBBS, Director of
Walworth County Department of
Planning, Zoning and Sanitation,
Defendants-Respondents.
Submitted on Briefs: July 29, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: September 4, 1996
Opinion Filed: September 4, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Walworth
(If "Special", JUDGE: John R. Race
so indicate)
JUDGES: Anderson,
P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the plaintiff-appellant, the cause was submitted on the briefs of William
P. O'Connor of Wheeler, Van Sickle & Anderson, S.C. of Madison.
Respondent
ATTORNEYSOn
behalf of the defendants-respondents, the cause was submitted on the briefs of Russell
W. Devitt of Soffa & Devitt of Whitewater.
COURT OF APPEALS DECISION DATED AND RELEASED September 4, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2097
STATE
OF WISCONSIN IN COURT OF
APPEALS
WESTEL - MILWAUKEE
COMPANY, INC.,
d/b/a CELLULAR ONE,
Plaintiff-Appellant,
v.
WALWORTH COUNTY, a
municipal
corporation, WALWORTH
COUNTY
PARK AND PLANNING
COMMISSION,
FRANCIS H. DOBBS,
Director of
Walworth County
Department of
Planning, Zoning and
Sanitation,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Walworth County:
JOHN R. RACE, Judge. Reversed
and cause remanded with directions.
Before Anderson, P.J.,
Brown and Snyder, JJ.
BROWN, J. The
Telecommunications Act of 1996 contains provisions which limit the power of
local authorities to make zoning decisions involving the placement of cellular
phone towers and related equipment.
Below we discuss how this new law affects the Walworth County Park and
Planning Commission's decision to deny Cellular One a permit to construct a
tower. We conclude that this new law
should apply to Cellular One's application and direct the County to reconsider
this matter.
Cellular One wants to
build a 200-foot telecommunications tower in northeast Walworth County. In March 1994, it applied for a conditional
use permit and the County held appropriate hearings.
Local residents voiced
opposition to the proposed tower. They
believed that the tower's electromagnetic emissions might create human and
animal health hazards. In addition, the
residents were concerned that the tower would depreciate the value of the
surrounding property. The residents
also objected to the negative aesthetics of having a tower in the midst of
scenic farmland.
In response, Cellular
One brought an expert on health physics from the University of California who
testified that the tower presented no health hazard. It also claimed that there was no evidence that these towers lowered
area property values. Cellular One also
explained that it would design the tower to be as unobtrusive as possible. For example, the tower would not have strobe
warning lights.
In August 1994, after
seeking further information from Cellular One, the County denied its petition
for a conditional use permit. Its
decision sets out the following reasoning:
[The
petition] has been denied based on the reason that neighbors (Mr. and
Mrs. William B. Dopke) feel the location of this tower would reduce the value
of their property and that it is too close to the Dopke property and their
residence.
In November 1994,
Cellular One sought certiorari review of the County's decision in circuit
court. Cellular One also requested that
the court enlarge the record and consider evidence that the County had
previously approved similarly situated towers.
Cellular One hoped to show that the County had acted in a
“discriminatory manner.”
The circuit court ruled
that it did not have authority to take additional evidence in common law certiorari
proceedings and refused to supplement the record. Then, turning to the information actually before the County, the
court ruled that the existing record contained sufficient evidence to support a
decision to deny the permit. Cellular
One now renews its request for judicial relief.
Before we turn to the
merits of Cellular One's complaint, we will address the Telecommunications Act
of 1996 and how its provisions directed at the “Preservation of local zoning
authority” affect this case. See
47 U.S.C.A. § 332(c)(7) (West. Supp. 1996). This Act was signed after the parties filed this appeal and we
accordingly asked for supplemental briefing on this question.
We were able to identify
only one decision which considered these provisions concerning local zoning
authority. That decision addressed the
very narrow question of whether local authorities retained the authority to
enact moratoriums on issuing permits for wireless communication facilities. See Sprint Spectrum, L.P. v. City of
Medina, 924 F. Supp. 1036, 1037 (W.D. Wash. 1996). The district court concluded that the Act
had no effect on this power. Id.
at 1040.
Nonetheless, when we
interpret a statute, our best guide is the language of the statute. See Meredith v. Bowen,
833 F.2d 650, 654 (7th Cir. 1987). The
lack of interpretative case law, or other authority, does not impede our
analysis.
The provisions of the
Act relating to local zoning set out five rules. See 47 U.S.C.A. § 332(c)(7)(B). Aside from these rules, however, the Act places no other limits
on “the authority of a State or local government or instrumentality thereof
over decisions regarding the placement, construction, and modification of
personal wireless service facilities.” Id. § 332(c)(7)(A).
The first set of provisions
prohibits local authorities from using the zoning process to “unreasonably
discriminate” against competing service providers. Id.
§ 332(c)(7)(B)(i)(I). At the
margin, we have set out the full text of this subsection and each of the other
subsections we describe.[1] A related subsection likewise prohibits
local authorities from enforcing their zoning laws in a manner which has the
“effect” of banishing wireless service from a local area. Id.
§ 332(c)(7)(B)(i)(II). Congress's
command that local authorities “shall not” discriminate indicates that it wants
local decision makers to consider how their zoning decisions affect the
marketplace for communication services.
Congress, however, has not placed competition above all local concerns
as the Act nonetheless strikes a balance between local zoning power and
promotion of free competition. The Act
prohibits such local discrimination only if it is “unreasonable.” See 47 U.S.C.A. § 332(c)(7)(B).
Next, with this Act,
Congress has tried to stop local authorities from keeping wireless providers
tied up in the hearing process. The Act
requires local authorities to make a decision on such matters within a
“reasonable period of time.” Id.
§ 332(c)(7)(B)(ii).[2] Still, the Federal District Court for the
Western District of Washington, the only other court to consider these
provisions, concluded that a city's decision to enforce a six-month moratorium
on these facilities did not violate this provision. See Sprint Spectrum, 924 F. Supp. at 1040. The district court reasoned that the Act
does not require local authorities to give preferential treatment to these
providers, but only requires that local governments consider such requests in
accordance with the generally applicable time frames for zoning-related
decision making. Id. We agree with that court's interpretation
and reasoning.
Third, the Act requires
local authorities to support their decisions with “substantial evidence” and
written findings. 47 U.S.C.A.
§ 332(c)(7)(B)(iii).[3]
This provision, however, does not change the methodology that local zoning
authorities should apply when making findings because their decisions are
already gauged under the “substantial evidence test.” See Clark v. Waupaca County Bd. of Adjustment, 186
Wis.2d 300, 304, 519 N.W.2d 782, 784 (Ct. App. 1994). In fact, the Conference Agreement accompanying the Act states
that the words “substantial evidence” were indeed selected to reflect the
standard currently applicable in jurisdictions across the nation. See H.R.
Conf. Rep. No. 458, 104th Cong., 2d Sess. § 704 (1996), microformed
on Sup. Docs. No. Y 1.1/8:104-458 (U.S. Gov't Printing Office). Accordingly, we conclude that the Act does
not require any change in the factfinding procedures that local zoning
authorities currently follow.
The Act also contains a
provision directed at the health concerns associated with the radio emissions
from wireless transmitters. The Act
plainly prohibits a local authority from considering the possible effects of
these emissions in their decision making.
47 U.S.C.A. § 332(c)(7)(B)(iv).[4] As long as the proposed facility meets
Federal Communications Commission standards, the local authority may not
consider any claim that authorizing a wireless communication facility might
cause local health problems. See id.
Finally, the Act
contains a jurisdictional provision allowing wireless providers to seek
judicial or administrative relief should a local authority not comply with the
four above standards. See id.
§ 332(c)(7)(B)(v).[5] This section, therefore, has no direct effect on how local zoning
authorities should conduct their hearing process.
This discussion illustrates that the new Act
makes some substantive changes to the local zoning process. The question that remains, however, is
whether this new law should be applied to Cellular One's application. Given the unique circumstances of this case,
we believe that it should, and therefore direct that the County reconsider this
matter.
First, our scan of the evidence
that Cellular One offered to the circuit court suggests that the company has
data which may be material to the open competition issues that are emphasized
in the new federal law. Indeed, such
concerns about nondiscriminatory placement of these transmission towers might
balance against the County's stated concerns about declining property
values.
As important, we believe
that remand will conserve administrative and judicial resources. If we choose to ignore the new Act and
measure the County's rejection under the previous standards, as the County
urges us to do in its supplemental briefs, the County (and possibly this court
in another certiorari proceeding) could likely face a new application from
Cellular One. Since the doctrine of
claims preclusion (res judicata) is sparingly applied in the zoning arena, see
generally E.C. Yokley, Zoning Law
and Practice § 25-10 (4th ed. 1979), we see nothing preventing
Cellular One from resubmitting its application and demanding that the County
apply the new federal law in a second attempt.
Lastly, we observe that
at least one other court has applied this same remedy to similar circumstances.
In L.I.M.A. Partners v. Borough
of Northvale, 530 A.2d 839 (N.J. Super. Ct. App. Div. 1987), the New
Jersey Superior Court faced a complaint by a commercial broadcaster which had
been denied a variance to install a new satellite dish. Id. at 841. The landowner convinced the trial court that
the municipality's restriction on dish antenna violated the First
Amendment. But like in this case,
during the pendency of the appeal the federal government, specifically the
Federal Communications Commission, adopted regulations which preempted local
zoning restrictions on dish antennas. See
id. at 843-44. The appellate
court thus concluded that determining how the new federal rules affected the
zoning decision required more factfinding and remanded the case to the trial
court for further consideration. Id.
at 841-42, 844.
Thus, given the unique
circumstances of this case, we conclude that the most appropriate remedy is to
remand the entire matter to the County with directions that it evaluate
Cellular One's application in light of the recently passed Telecommunications
Act. In State ex rel. Lomax v.
Leik, 154 Wis.2d 735, 740-41, 454 N.W.2d 18, 21 (Ct. App. 1990), this
court held that we may order remand in common law certiorari procedures when
the record is insufficient to address the issues raised. We conclude that this remedy should be used
in this instance. We accordingly direct
the County to examine the record de novo and permit Cellular One to introduce
its evidence regarding other tower approvals.
By the Court.—Judgment
reversed and cause remanded with directions.
[1]
47 U.S.C.A. § 332(c)(7)(B)(i) (West Supp. 1996) provides:
The regulation of the placement,
construction, and modification of personal wireless service facilities by any
State or local government or instrumentality thereof—
(I) shall not unreasonably
discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provisions of personal wireless services.
[2]
Section 332(c)(7)(B)(ii) provides:
A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
[3]
Section 332(c)(7)(B)(iii) provides:
Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.
[4]
Section 332(c)(7)(B)(iv) provides:
No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.
[5]
Section 332(c)(7)(B)(v) provides:
Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.