Chapter 66

66.0403 Annotation The owner of an energy system does not need a permit under this section. Barring enforceable municipal restrictions, an owner may construct a system without prior municipal approval. This section benefits and protects the owner of the system by restricting the use of nearby property to prevent an interference with the system. State ex rel. Numrich v. City of Mequon Board of Zoning Appeals, 2001 WI App 88, 242 Wis. 2d 677, 626 N.W.2d 366, 00-1643.

66.0403 Annotation Wisconsin Recognizes the Power of the Sun: Prah v. Maretti and the Solar Access Act. Grunow. 1983 WLR 1263.

66.0404 66.0404 Mobile tower siting regulations.

66.0404(1) (1) Definitions. In this section:

66.0404(1)(a) (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of mobile services.

66.0404(1)(b) (b) “Application” means an application for a permit under this section to engage in an activity specified in sub. (2) (a) or a class 2 collocation.

66.0404(1)(c) (c) “Building permit” means a permit issued by a political subdivision that authorizes an applicant to conduct construction activity that is consistent with the political subdivision’s building code.

66.0404(1)(d) (d) “Class 1 collocation” means the placement of a new mobile service facility on an existing support structure such that the owner of the facility does not need to construct a free standing support structure for the facility but does need to engage in substantial modification.

66.0404(1)(e) (e) “Class 2 collocation” means the placement of a new mobile service facility on an existing support structure such that the owner of the facility does not need to construct a free standing support structure for the facility or engage in substantial modification.

66.0404(1)(f) (f) “Collocation” means class 1 or class 2 collocation or both.

66.0404(1)(g) (g) “Distributed antenna system” means a network of spatially separated antenna nodes that is connected to a common source via a transport medium and that provides mobile service within a geographic area or structure.

66.0404(1)(h) (h) “Equipment compound” means an area surrounding or adjacent to the base of an existing support structure within which is located mobile service facilities.

66.0404(1)(i) (i) “Existing structure” means a support structure that exists at the time a request for permission to place mobile service facilities on a support structure is filed with a political subdivision.

66.0404(1)(j) (j) “Fall zone” means the area over which a mobile support structure is designed to collapse.

66.0404(1)(k) (k) “Mobile service” has the meaning given in 47 USC 153 (33).

66.0404(1)(L) (L) “Mobile service facility” means the set of equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and associated equipment, that is necessary to provide mobile service to a discrete geographic area, but does not include the underlying support structure.

66.0404(1)(m) (m) “Mobile service provider” means a person who provides mobile service.

66.0404(1)(n) (n) “Mobile service support structure” means a freestanding structure that is designed to support a mobile service facility.

66.0404(1)(o) (o) “Permit” means a permit, other than a building permit, or approval issued by a political subdivision which authorizes any of the following activities by an applicant:

66.0404(1)(o)1. 1. A class 1 collocation.

66.0404(1)(o)2. 2. A class 2 collocation.

66.0404(1)(o)3. 3. The construction of a mobile service support structure.

66.0404(1)(p) (p) “Political subdivision” means a city, village, town, or county.

66.0404(1)(q) (q) “Public utility” has the meaning given in s. 196.01 (5).

66.0404(1)(r) (r) “Search ring” means 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.

66.0404(1)(s) (s) “Substantial modification” means the modification of a mobile service support structure, including the mounting of an antenna on such a structure, that does any of the following:

66.0404(1)(s)1. 1. For structures with an overall height of 200 feet or less, increases the overall height of the structure by more than 20 feet.

66.0404(1)(s)2. 2. For structures with an overall height of more than 200 feet, increases the overall height of the structure by 10 percent or more.

66.0404(1)(s)3. 3. Measured at the level of the appurtenance added to the structure as a result of the modification, increases the width of the support structure by 20 feet or more, unless a larger area is necessary for collocation.

66.0404(1)(s)4. 4. Increases the square footage of an existing equipment compound to a total area of more than 2,500 square feet.

66.0404(1)(t) (t) “Support structure” means an existing or new structure that supports or can support a mobile service facility, including a mobile service support structure, utility pole, water tower, building, or other structure.

66.0404(1)(u) (u) “Utility pole” means a structure owned or operated by an alternative telecommunications utility, as defined in s. 196.01 (1d); public utility, as defined in s. 196.01 (5); telecommunications utility, as defined in s. 196.01 (10); political subdivision; or cooperative association organized under ch. 185; and that is designed specifically for and used to carry lines, cables, or wires for telecommunications service, as defined in s. 182.017 (1g) (cq); for video service, as defined in s. 66.0420 (2) (y); for electricity; or to provide light.

66.0404(2) (2) New construction or substantial modification of facilities and support structures.

66.0404(2)(a) (a) Subject to the provisions and limitations of this section, a political subdivision may enact a zoning ordinance under s. 59.69, 60.61, or 62.23 to regulate any of the following activities:

66.0404(2)(a)1. 1. The siting and construction of a new mobile service support structure and facilities.

66.0404(2)(a)2. 2. With regard to a class 1 collocation, the substantial modification of an existing support structure and mobile service facilities.

66.0404(2)(b) (b) If a political subdivision regulates an activity described under par. (a), the regulation shall prescribe the application process which a person must complete to engage in the siting, construction, or modification activities described in par. (a). The application shall be in writing and shall contain all of the following information:

66.0404(2)(b)1. 1. The name and business address of, and the contact individual for, the applicant.

66.0404(2)(b)2. 2. The location of the proposed or affected support structure.

66.0404(2)(b)3. 3. The location of the proposed mobile service facility.

66.0404(2)(b)4. 4. If the application is to substantially modify an existing support structure, a construction plan which describes the proposed modifications to the support structure and the equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment associated with the proposed modifications.

66.0404(2)(b)5. 5. If the application is to construct a new mobile service support structure, a construction plan which describes the proposed mobile service support structure and the equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment to be placed on or around the new mobile service support structure.

66.0404(2)(b)6. 6. If an application is to construct a new mobile service support structure, an explanation as to why the applicant chose the proposed location and why the applicant did not choose collocation, including a sworn statement from an individual who has responsibility over the placement of the mobile service support structure attesting that collocation within the applicant’s search ring would not result in the same mobile service functionality, coverage, and capacity; is technically infeasible; or is economically burdensome to the mobile service provider.

66.0404(2)(c) (c) If an applicant submits to a political subdivision an application for a permit to engage in an activity described under par. (a), which contains all of the information required under par. (b), the political subdivision shall consider the application complete. If the political subdivision does not believe that the application is complete, the political subdivision shall notify the applicant in writing, within 10 days of receiving the application, that the application is not complete. The written notification shall specify in detail the required information that was incomplete. An applicant may resubmit an application as often as necessary until it is complete.

66.0404(2)(d) (d) Within 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, except that the applicant and the political subdivision may agree in writing to an extension of the 90 day period:

66.0404(2)(d)1. 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.

66.0404(2)(d)2. 2. Make a final decision whether to approve or disapprove the application.

66.0404(2)(d)3. 3. Notify the applicant, in writing, of its final decision.

66.0404(2)(d)4. 4. If the decision is to disapprove the application, include with the written notification substantial evidence which supports the decision.

66.0404(2)(e) (e) A political subdivision may disapprove an application if an applicant refuses to evaluate the feasibility of collocation within the applicant’s search ring and provide the sworn statement described under par. (b) 6.

66.0404(2)(f) (f) A party who is aggrieved by the final decision of a political subdivision under par. (d) 2. may bring an action in the circuit court of the county in which the proposed activity, which is the subject of the application, is to be located.

66.0404(2)(g) (g) If an applicant provides a political subdivision with an engineering certification showing that a mobile service support structure, or an existing structure, is designed to collapse within a smaller area than the setback or fall zone area required in a zoning ordinance, that zoning ordinance does not apply to such a structure unless the political subdivision provides the applicant with substantial evidence that the engineering certification is flawed.

66.0404(2)(h) (h) A political subdivision may regulate the activities described under par. (a) only as provided in this section.

66.0404(2)(i) (i) If a political subdivision has in effect on July 2, 2013, an ordinance that applies to the activities described under par. (a) and the ordinance is inconsistent with this section, the ordinance does not apply to, and may not be enforced against, the activity.

66.0404(3) (3) Collocation on existing support structures.

66.0404(3)(a) (a)

66.0404(3)(a)1. 1. A class 2 collocation is a permitted use under ss. 59.69, 60.61, and 62.23.

66.0404(3)(a)2. 2. If a political subdivision has in effect on July 2, 2013, an ordinance that applies to a class 2 collocation and the ordinance is inconsistent with this section, the ordinance does not apply to, and may not be enforced against, the class 2 collocation.

66.0404(3)(a)3. 3. A political subdivision may regulate a class 2 collocation only as provided in this section.

66.0404(3)(a)4. 4. A class 2 collocation is subject to the same requirements for the issuance of a building permit to which any other type of commercial development or land use development is subject.

66.0404(3)(b) (b) If an applicant submits to a political subdivision an application for a permit to engage in a class 2 collocation, the application shall contain all of the information required under sub. (2) (b) 1. to 3., in which case the political subdivision shall consider the application complete. If any of the required information is not in the application, the political subdivision shall notify the applicant in writing, within 5 days of receiving the application, that the application is not complete. The written notification shall specify in detail the required information that was incomplete. An applicant may resubmit an application as often as necessary until it is complete.

66.0404(3)(c) (c) Within 45 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, except that the applicant and the political subdivision may agree in writing to an extension of the 45 day period:

66.0404(3)(c)1. 1. Make a final decision whether to approve or disapprove the application.

66.0404(3)(c)2. 2. Notify the applicant, in writing, of its final decision.

66.0404(3)(c)3. 3. If the application is approved, issue the applicant the relevant permit.

66.0404(3)(c)4. 4. If the decision is to disapprove the application, include with the written notification substantial evidence which supports the decision.

66.0404(3)(d) (d) A party who is aggrieved by the final decision of a political subdivision under par. (c) 1. may bring an action in the circuit court of the county in which the proposed activity, which is the subject of the application, is to be located.

66.0404(4) (4) Limitations. With regard to an activity described in sub. (2) (a) or a class 2 collocation, a political subdivision may not do any of the following:

66.0404(4)(a) (a) Impose environmental testing, sampling, or monitoring requirements, or other compliance measures for radio frequency emissions, on mobile service facilities or mobile radio service providers.

66.0404(4)(b) (b) Enact an ordinance imposing a moratorium on the permitting, construction, or approval of any such activities.

66.0404(4)(c) (c) Enact an ordinance prohibiting the placement of a mobile service support structure in particular locations within the political subdivision.

66.0404(4)(d) (d) Charge a mobile radio service provider a fee in excess of one of the following amounts:

66.0404(4)(d)1. 1. For a permit for a class 2 collocation, the lesser of $500 or the amount charged by a political subdivision for a building permit for any other type of commercial development or land use development.

66.0404(4)(d)2. 2. For a permit for an activity described in sub. (2) (a), $3,000.

66.0404(4)(e) (e) Charge a mobile radio service provider any recurring fee for an activity described in sub. (2) (a) or a class 2 collocation.

66.0404(4)(f) (f) Permit 3rd party consultants to charge the applicant for any travel expenses incurred in the consultant’s review of mobile service permits or applications.

66.0404(4)(g) (g) Disapprove an application to conduct an activity described under sub. (2) (a) based solely on aesthetic concerns.

66.0404(4)(gm) (gm) Disapprove an application to conduct a class 2 collocation on aesthetic concerns.

66.0404(4)(h) (h) Enact or enforce an ordinance related to radio frequency signal strength or the adequacy of mobile service quality.

66.0404(4)(i) (i) Impose a surety requirement, unless the requirement is competitively neutral, nondiscriminatory, and commensurate with the historical record for surety requirements for other facilities and structures in the political subdivision which fall into disuse. There is a rebuttable presumption that a surety requirement of $20,000 or less complies with this paragraph.

66.0404(4)(j) (j) Prohibit the placement of emergency power systems.

66.0404(4)(k) (k) Require that a mobile service support structure be placed on property owned by the political subdivision.

66.0404(4)(L) (L) Disapprove an application based solely on the height of the mobile service support structure or on whether the structure requires lighting.

66.0404(4)(m) (m) Condition approval of such activities on the agreement of the structure or mobile service facility owner to provide space on or near the structure for the use of or by the political subdivision at less than the market rate, or to provide the political subdivision other services via the structure or facilities at less than the market rate.

66.0404(4)(n) (n) Limit the duration of any permit that is granted.

66.0404(4)(o) (o) Require an applicant to construct a distributed antenna system instead of either constructing a new mobile service support structure or engaging in collocation.

66.0404(4)(p) (p) Disapprove an application based on an assessment by the political subdivision of the suitability of other locations for conducting the activity.

66.0404(4)(q) (q) Require that a mobile service support structure, existing structure, or mobile service facilities have or be connected to backup battery power.

66.0404(4)(r) (r) Impose a setback or fall zone requirement for a mobile service support structure that is different from a requirement that is imposed on other types of commercial structures.