Chapter 66

66.0413 Annotation A constructive total loss occurs following the issuance of a raze order. However, there is no requirement on the city to prove that the property was a total loss prior to issuance of a raze order under an ordinance adopted under sub. (4). A&A Enterprises v. City of Milwaukee, 2008 WI App 43, 308 Wis. 2d 479, 747 N.W.2d 751, 07-0300.

66.0413 Annotation The phrase “out of repair” in sub. (1) (b) 1. is simple and capable of a common understanding. A building inspector’s interpretation of “out of repair” to mean that some aspect of the building required fixing or that the building was non-compliant with the relevant housing codes was a common-sense definition. A building can be “out of repair” for any of a number of reasons, including a sudden fire or rapid exposure to some other damaging condition or element. The phrase connotes no sense that the condition rendering the building “out of repair” has existed for any particular length of time. Auto-Owners Insurance Co. v. City of Appleton, 2017 WI App 62, 378 Wis. 2d 155, 902 N.W.2d 532, 16-1227.

66.0413 Annotation There is no basis in this section for a rule that smoke and water damage remediation are not part of the “cost of repair” of a fire. “Cost of repairs” under sub. (1) (c) is not defined, but logically it refers to the cost to remedy all conditions that render the building deficient under sub. (1) (b) 1., including not only those that render the building “out of repair,” but also those that affect the suitability of the building for human habitation. Auto-Owners Insurance Co. v. City of Appleton, 2017 WI App 62, 378 Wis. 2d 155, 902 N.W.2d 532, 16-1227.

66.0413 Annotation The exclusive remedy provision of sub. (1) (h) applies only to claims premised on the reasonableness of the order to raze. It does not apply to a challenge based on acts occurring during the subsequent repairs required under the order, and it does not bar a defense of equitable estoppel based on a city’s implementation of the order. 1033 North 7th Street v. City of Fond du Lac, 2021 WI App 38, 398 Wis. 2d 542, 961 N.W.2d 903, 20-0092.

66.0413 Annotation The “cost of repairs” under sub. (1) (c) is only those that are considered necessary to remove the public nuisance and protect the public interest. The cost of repairs must take into account the intended use of a building to limit abatement measures to the necessities of the case. In this case, any development proposals the owner of the buildings had were purely speculative such that they could not be considered the intended use of the buildings for purposes of determining the cost of repairs. The intended use of the buildings at the time the raze orders were issued was as vacant, unoccupied buildings that were not open to the public. Therefore, the proper costs to consider in determining whether the raze orders were reasonable were the costs of making each building safe for use as a vacant, unoccupied building that was closed to the public. U.S. Black Spruce Enterprise Group, Inc. v. City of Milwaukee, 2022 WI App 15, 401 Wis. 2d 421, 973 N.W.2d 804, 20-1113.

66.0413 Annotation The circuit court order granting summary judgment in favor of the city, permitting the city to raze the defendant’s building and awarding the cost of the razing to the city, was a final order under s. 808.03 (1). The order explicitly granted the city all of the relief the city requested, and all that remained was the execution of the order, namely the razing at the defendant’s expense and the calculation of the cost of the razing. City of New Lisbon v. Muller, 2023 WI App 65, 410 Wis. 2d 309, 1 N.W.3d 761, 22-1683.

66.0413 Annotation There was no constitutional “taking” when tenants were ordered to temporarily vacate their uninhabitable dwelling to permit repairs pursuant to the housing code. Devines v. Maier, 728 F.2d 876 (1984).

66.0414 66.0414 Small wireless facilities.

66.0414(1) (1) Definitions. In this section:

66.0414(1)(a) (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of wireless services.

66.0414(1)(b) (b) “Antenna equipment” or “wireless equipment” means equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.

66.0414(1)(c) (c) “Antenna facility” means an antenna and associated antenna equipment, including ground-mounted antenna equipment.

66.0414(1)(d) (d) “Applicable codes” means the state electrical wiring code, as defined in s. 101.80 (4), the state plumbing code promulgated under s. 145.02 (2) (a), the fire prevention code under ch. SPS 314, Wis. Adm. Code, the Wisconsin commercial building code under chs. SPS 361 to 366, Wis. Adm. Code, the Wisconsin uniform dwelling code under chs. SPS 320 to 325, Wis. Adm. Code, and local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons.

66.0414(1)(e) (e) “Applicant” means a wireless provider that submits an application.

66.0414(1)(f) (f) “Application” means an application for a permit under this section to collocate a small wireless facility or to install, modify, or replace a utility pole.

66.0414(1)(g) (g) “Collocate,” “collocate on,” or “collocation” means the placement, mounting, replacement, modification, operation, or maintenance of a small wireless facility on, or of ground-mounted antenna equipment adjacent to, a structure.

66.0414(1)(h) (h) “Communications facilities” means the set of equipment and network components, including wires and cables and associated facilities, used by a communications service provider to provide communications service.

66.0414(1)(i) (i) “Communications network” means a network used to provide a communications service.

66.0414(1)(j) (j) “Communications service” means cable service, as defined in 47 USC 522 (6), telecommunications service, as defined in 47 USC 153 (53), information service, as defined in 47 USC 153 (24), or wireless service.

66.0414(1)(k) (k) “Communications service provider” means a person that provides communications service.

66.0414(1)(L) (L) “Facility” means an antenna facility or a structure.

66.0414(1)(m) (m) “Fee” means a one-time charge.

66.0414(1)(n) (n) “Governmental pole” means a utility pole that is owned or operated by the state or by a political subdivision in a right-of-way.

66.0414(1)(o) (o) “Investor-owned electric utility” means a public utility whose purpose is the generation, transmission, delivery, or furnishing of electric power but does not include a public utility owned and operated wholly by a municipality or a cooperative association organized under ch. 185.

66.0414(1)(p) (p) “Micro wireless facility” means a small wireless facility that does not exceed 24 inches in length, 15 inches in width, and 12 inches in height and that has no exterior antenna longer than 11 inches.

66.0414(1)(q) (q) “Permit” means written authorization required by the state or a political subdivision to perform an action, or initiate, continue, or complete a project.

66.0414(1)(r) (r) “Political subdivision” means any city, village, town, or county.

66.0414(1)(s) (s) “Rate” means a recurring charge.

66.0414(1)(t) (t) “Right-of-way” means the area on, below, or above a highway, as defined in s. 340.01 (22), other than a federal interstate highway; sidewalk; utility easement, other than a utility easement for a cooperative association organized under ch. 185 for purposes of providing or furnishing heat, light, power, or water to its members only; or other similar property, including property owned or controlled by the department of transportation.

66.0414(1)(u) (u) “Small wireless facility” means a wireless facility to which all of the following apply:

66.0414(1)(u)1. 1. The wireless facility satisfies any of the following:

66.0414(1)(u)1.a. a. The wireless facility is mounted on a structure 50 feet or less in height including any antenna.

66.0414(1)(u)1.b. b. The wireless facility is mounted on a structure no more than 10 percent taller than any other adjacent structure.

66.0414(1)(u)1.c. c. The wireless facility does not increase the height of an existing structure on which the wireless facility is located to a height of more than 50 feet or by 10 percent, whichever is greater.

66.0414(1)(u)2. 2. Each antenna associated with the deployment of the wireless facility, excluding associated antenna equipment, is no more than 3 cubic feet in volume.

66.0414(1)(u)3. 3. All other wireless equipment associated with the wireless facility specified in subd. 1., including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than 28 cubic feet in volume.

66.0414(1)(u)4. 4. The wireless facility does not require registration as an antenna structure under 47 CFR part 17.

66.0414(1)(u)5. 5. The wireless facility is not located on tribal land, as defined in 36 CFR 800.16 (x).

66.0414(1)(u)6. 6. The wireless facility does not result in human exposure to radio frequency in excess of the applicable safety standards specified in 47 CFR 1.1307.

66.0414(1)(v) (v) Except in par. (zp), “structure” means a utility pole or wireless support structure, whether or not it has an existing antenna facility.

66.0414(1)(w) (w) “Technically feasible” means that by virtue of engineering or spectrum usage the proposed placement for a small wireless facility, or its design, concealment measures, or site location can be implemented without a reduction in the functionality of the small wireless facility.

66.0414(1)(x) (x) “Utility pole” means a pole that is used in whole or in part by a communications service provider; used for electric distribution, lighting, traffic control, signage, or a similar function; or used for the collocation of small wireless facilities. “Utility pole” does not include a wireless support structure or electric transmission structure.

66.0414(1)(y) (y) “Utility pole for designated services” means a utility pole owned or operated in a right-of-way by the state, a political subdivision, or a utility district that is designed to, or used to, carry electric distribution lines, or cables or wires for telecommunications, cable, or electric service.

66.0414(1)(z) (z)

66.0414(1)(z)1. 1. “Wireless facility” means an antenna facility at a fixed location that enables wireless services between user equipment and a communications network, and includes all of the following:

66.0414(1)(z)1.a. a. Equipment associated with wireless services.

66.0414(1)(z)1.b. b. Radio transceivers, antennas, or coaxial, metallic, or fiber-optic cable located on, in, under, or otherwise adjacent to a utility pole or wireless support structure.

66.0414(1)(z)1.c. c. Regular and backup power supplies.

66.0414(1)(z)1.d. d. Equipment that is comparable to equipment specified in this subdivision regardless of technical configuration.

66.0414(1)(z)2. 2. “Wireless facility” does not include any of the following:

66.0414(1)(z)2.a. a. The structure or improvements on, under, or within which equipment specified in subd. 1. is collocated.

66.0414(1)(z)2.b. b. Wireline backhaul facilities.

66.0414(1)(z)2.c. c. Coaxial, metallic, or fiber-optic cable that is between utility poles or wireless support structures or that is not adjacent to a particular antenna.

66.0414(1)(za) (za) “Wireless infrastructure provider” means any person, other than a wireless services provider, that builds or installs wireless communication transmission equipment, antenna equipment, or wireless support structures.

66.0414(1)(zc) (zc) “Wireless provider” means a wireless infrastructure provider or a wireless services provider.

66.0414(1)(zg) (zg) “Wireless services” means any service using licensed or unlicensed wireless spectrum, including the use of a Wi-Fi network, whether at a fixed location or by means of a mobile device.

66.0414(1)(zL) (zL) “Wireless services provider” means any person who provides wireless services.

66.0414(1)(zp) (zp) “Wireless support structure” means an existing freestanding structure that is capable of supporting small wireless facilities, except that “wireless support structure” does not include any of the following:

66.0414(1)(zp)1. 1. A utility pole.

66.0414(1)(zp)2. 2. A structure designed solely for the collocation of small wireless facilities.

66.0414(1)(zt) (zt) “Wireline backhaul facility” means a facility for providing wireline backhaul service.

66.0414(1)(zx) (zx) “Wireline backhaul service” means the transport of communications services by wire from small wireless facilities to a communications network.

66.0414(2) (2) Rights-of-way.

66.0414(2)(a) (a) Applicability. This subsection applies only to the activities of a wireless provider within a right-of-way.

66.0414(2)(b) (b) Exclusive use prohibited. Neither the state nor a political subdivision may enter into an exclusive arrangement with any person for the use of a right-of-way for the construction, operation, marketing, maintenance, or collocation of small wireless facilities or wireless support structures.

66.0414(2)(c) (c) Rates and fees. Subject to sub. (3) (e) 3., the state or a political subdivision may charge a wireless provider a nondiscriminatory rate or fee for the use of a right-of-way with respect to the collocation of a small wireless facility or the installation, modification, or replacement of a utility pole in the right-of-way only if the state or political subdivision charges other entities for the use of the right-of-way. If the state or a political subdivision charges a wireless provider a rate or fee as described in this paragraph, all of the following apply:

66.0414(2)(c)1. 1. Subject to subd. 5., the fee or rate must be limited to no more than the direct and actual cost of managing the right-of-way.

66.0414(2)(c)2. 2. Except as provided in par. (d), the fee or rate must be competitively neutral with regard to other users of the right-of-way.

66.0414(2)(c)3. 3. The fee or rate may not result in a double recovery by the state or political subdivision if existing fees, rates, or taxes imposed by a political subdivision on the wireless provider already recover the direct and actual cost of managing the right-of-way.

66.0414(2)(c)4. 4. The fee or rate may not be in the form of a franchise or other fee based on revenue or customer counts.

66.0414(2)(c)5. 5. The fee or rate may not exceed an annual amount equal to $20 multiplied by the number of small wireless facilities in the right-of-way in the state’s or political subdivision’s geographic jurisdiction.

66.0414(2)(c)6. 6. Beginning on July 12, 2019, the state or a political subdivision may adjust a rate or fee allowed under this paragraph by 10 percent every 5 years, rounded to the nearest dollar. During each 5-year period, the adjustment may be applied incrementally or as a single adjustment.

66.0414(2)(d) (d) Rate or fee adjustment.

66.0414(2)(d)1. 1. Except as provided in subd. 2., by the later of October 1, 2019, or 3 months after receiving its first request for access to the right-of-way by a wireless provider, the state or a political subdivision shall implement rates, fees, and terms for such access that comply with this subsection.

66.0414(2)(d)2. 2. Agreements between a wireless provider and the state or a political subdivision that are in effect on July 12, 2019, and that relate to access to the right-of-way, remain in effect, subject to applicable termination provisions, except that by August 1, 2021, the state or political subdivision shall amend any such agreement to comply with the rates, fees, and terms required under this subsection.

66.0414(2)(e) (e) Right of access.

66.0414(2)(e)1. 1. Except as otherwise provided in this subsection and subs. (3) (c) 4. and 5. and (4), and notwithstanding ss. 182.017 and 196.58 and any zoning ordinance enacted by a political subdivision under s. 59.69, 60.61, 60.62, or 62.23, a wireless provider shall have the right to collocate small wireless facilities and construct, modify, maintain, and replace its own utility poles, or, with the permission of the owner, a 3rd party’s utility pole, that supports small wireless facilities along, across, upon, and under a right-of-way. Such small wireless facilities and utility poles, and activities related to the installation and maintenance of the small wireless facilities and utility poles, may not obstruct or hinder travel, drainage, maintenance, or the public health, safety, and general welfare on or around the right-of-way, or obstruct the legal use of the right-of-way for other communications providers, public utilities, cooperative associations organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to their members only, or pipes or pipelines transmitting liquid manure. A political subdivision may enact an ordinance consistent with this subdivision.

66.0414(2)(e)2. 2. Except as provided in subd. 4., the height of a utility pole installed, or modified, in a right-of-way may not exceed the greater of:

66.0414(2)(e)2.a. a. A height that is 10 percent taller than the tallest existing utility pole as of July 12, 2019, that is located within 500 feet of the new or modified utility pole in the same right-of-way.

66.0414(2)(e)2.b. b. Fifty feet above ground level.

66.0414(2)(e)3. 3. The height of a small wireless facility installed, or modified, in a right-of-way may not exceed the greater of:

66.0414(2)(e)3.a. a. A height that is 10 percent taller than the existing utility pole or wireless support structure on which the small wireless facility is located.

66.0414(2)(e)3.b. b. Fifty feet above ground level.

66.0414(2)(e)4. 4. A wireless provider may construct, modify, and maintain a utility pole, wireless support structure, or small wireless facility along, across, upon, and under a right-of-way that exceeds the height limits in this paragraph if the wireless provider complies with height limits under the zoning ordinances enacted by a political subdivision under s. 59.69, 60.61, 60.62, or 62.23.

66.0414(2)(e)5. 5. With regard to the rights of a wireless provider to construct or modify a utility pole as described in subd. 1., a political subdivision may propose an alternate location for collocation, which the wireless provider shall use if it has the right to use the alternate structure on reasonable terms and conditions and the alternate location is technically feasible and does not impose material additional costs.

66.0414(2)(f) (f) Damage and repair. The state or a political subdivision may require a wireless provider to repair all damage that is directly caused by the activities of the wireless provider in a right-of-way involving its small wireless facilities or structures, and to return the right-of-way to its former condition before it was so damaged. If the wireless provider fails to make the required repairs within a reasonable amount of time after receiving a written request to do so from the state or a political subdivision, the state or political subdivision may make the necessary repairs and charge the liable party for the cost of the repairs. This paragraph does not prohibit a political subdivision from recovering damages under s. 86.02.

66.0414(2)(g) (g) Nondiscrimination. The state and political subdivisions must administer and regulate a right-of-way in a competitively neutral manner with regard to all users of the right-of-way.

66.0414(3) (3) Permitting process.

66.0414(3)(a) (a) Applicability. This subsection applies to the permitting for the collocation of small wireless facilities by a wireless provider within and outside a right-of-way and to the permitting for the installation, modification, and replacement of associated utility poles by a wireless provider inside a right-of-way. Except as provided in this subsection and in subs. (2) and (4), neither the state nor a political subdivision may prohibit, regulate, or charge any person for the collocation of small wireless facilities.