Scenic Ridge of Big Bend Homeowner's Association, Inc. v. Village of Vernon

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.
September 14, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2021AP1390 Cir. Ct. No. 2020CV1233

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

SCENIC RIDGE OF BIG BEND HOMEOWNER'S ASSOCIATION, INC.,

PLAINTIFF-APPELLANT,

V.

VILLAGE OF VERNON,

DEFENDANT-RESPONDENT,

CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS,
DIAMOND COMMUNICATIONS, LLC, AND
NEW CINGULAR WIRELESS, LLC,

INTERVENORS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Waukesha County:
LLOYD V. CARTER, Judge. Reversed and cause remanded with directions

Before Gundrum, P.J., Neubauer and Grogan, JJ.
No. 2021AP1390

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. This case involves the siting of a cell tower in a
rural residential area in the Village of Vernon (the Village). Scenic Ridge of Big
Bend Homeowner’s Association (Scenic Ridge), which opposes the tower, appeals
from a judgment of the circuit court upholding the Village’s approval of the
application for a conditional use permit (CUP) for the tower. Because the Village
approved the application based on an incorrect theory of law—namely, that state
law prevented the Village from considering evidence that the tower would
diminish nearby property values—we reverse and remand this matter to the circuit
court.

BACKGROUND

¶2 On May 12, 2020, Cellco Partnership, d/b/a Verizon Wireless,
Diamond Communications, LLC, and New Cingular Wireless, LLC (collectively
Diamond) applied for a CUP from the Village of Vernon to allow construction of a
165-foot-high cell tower on residential property owned by the Hansen Family
Revocable Trust (Hansen Property). The proposed location for the new tower is
directly adjacent to several residential homes and properties owned by members of
Scenic Ridge.

¶3 The Village plan commission (plan commission) and the Village
board1 held five meetings in June and July 2020 to consider Diamond’s
application. Area residents objected to the proposed tower on several grounds,

1
This opinion refers to the Village board either by that name or simply as the “board.”

2
No. 2021AP1390

including that it would be incompatible with the surrounding rural residential area
and would negatively impact property values. Diamond submitted competing
information explaining the rationale for the proposed location and responding to
questions and concerns raised by residents. After hearing testimony and receiving
various submissions, the Village board voted to approve the CUP by a vote of 3-2,
with the Village President voting in favor. Scenic Ridge sought certiorari review
and the circuit court upheld the Village’s decision. Scenic Ridge appeals.

STANDARD OF REVIEW

¶4 “Our appellate certiorari review looks only at the [Village]’s
decision, not the” decision of the circuit court. Eco-Site, LLC v. Town of
Cedarburg, 2019 WI App 42, ¶9, 388 Wis. 2d 375, 933 N.W.2d 179; see also
State ex rel. Peter Ogden Fam. Tr. of 2008 v. Board of Rev., 2019 WI 23, ¶23,
385 Wis. 2d 676, 923 N.W.2d 837. Our review is limited to the record made
before the Village. Eco-Site, 388 Wis. 2d 375, ¶9. In examining the record, we
consider only whether (1) the Village “kept within its jurisdiction”; (2) the Village
“acted according to law”; (3) the Village’s decision was “arbitrary, oppressive, or
unreasonable, and represented its will, and not its judgment”; and (4) the Village
“might reasonably make the order or determination in question” based on the
evidence before it. Id.; see also Ogden Fam. Tr., 385 Wis. 2d 676, ¶23. Whether
the Village acted according to law is a question of law that we review de novo.
Eco-Site, 388 Wis. 2d 375, ¶9; Ogden Fam. Tr., 385 Wis. 2d 676, ¶24.

THE LAW

¶5 In 2013, the Wisconsin Legislature created WIS. STAT. § 66.0404,
which requires municipalities to use statewide standards for the siting and
construction of mobile service support structures. 2013 Wis. Act 20, § 1269I.
3
No. 2021AP1390

Although the statute preempts many municipal regulations, it does not preempt all
local control because it allows municipalities to enact zoning ordinances “to
regulate any … siting and construction of a new mobile service support structure
and facilities,” subject to the statute’s “provisions and limitations.”
Sec. 66.0404(2)(a)1. (2019-20).2

¶6 This case involves the approval of a CUP. Conditional use permits
are for those particular uses that a community recognizes as desirable or necessary
but which the community will sanction only in a controlled manner. State ex rel.
Skelly Oil Co. v. Common Council of Delafield, 58 Wis. 2d 695, 701, 207
N.W.2d 585 (1973). In Eco-Site, we held that local control of siting of cellular
towers remains within the power of municipalities despite the parameters
established by the legislature in WIS. STAT. § 66.0404. Eco-Site, 388 Wis. 2d 375,
¶¶15-23. A municipality can deny approval for a tower under local ordinances
addressing conditional uses if, for example, substantial evidence shows that a
tower is incompatible with the surrounding area or on the basis of decreased
property values. Id. Such conditional use determinations are not preempted by
§ 66.0404(4)(c), which provides that a municipality may not prohibit the
placement of a mobile support structure within a particular location, or by
§ 66.0404(4)(g), which provides that a municipality may not deny a cell tower
“based solely on aesthetic concerns.”3 Eco-Site, 388 Wis. 2d 375, ¶¶15-23.

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
In Eco-Site, the Town relied upon by the following ordinance setting forth multiple
conditions that had to be met in order to grant a conditional use permit:

(1) Welfare. The establishment, maintenance or operation of
the conditional use will not be detrimental to or endanger
(continued)

4
No. 2021AP1390

DISCUSSION

¶7 Scenic Ridge contends that the Village board’s approval of the CUP
was based on an erroneous view that it was precluded from considering the
tower’s negative impact on the area, including diminution of property values.
Scenic Ridge points to VERNON, WIS., ORDINANCES ch. 300, § 300-15(C) (2016),4
which provides, in relevant part, that “[n]o building or structure shall be erected …
in a manner which shall be of such character as to adversely affect the nearby
properties or general desirability of the neighborhood.”5 Scenic Ridge asserts that

the public health, safety, morals, comfort or general
welfare.

(2) Compatible with adjacent land. The uses, values and
enjoyment of other Town property in the neighborhood for
purposes already permitted shall be in no foreseeable
manner substantially impaired or diminished by the
establishment, maintenance or operation of the conditional
use.

(3) Not impede surrounding property development and
improvement. The establishment of the conditional use
will not impede the normal and orderly development and
improvement of the surrounding Town property for uses
permitted in the district.

Eco-Site, LLC v. Town of Cedarburg, 2019 WI App 42, ¶14, 388 Wis. 2d 375, 933
N.W.2d 179 (citing TOWN OF CEDARBURG, WIS., CODE § 320-51A (2018)).
4
The Village’s ordinances are available at https://ecode360.com/VE2182 (last visited
Sept. 2, 2022).
5
VERNON, WIS., ORDINANCES ch. 300, § 300-15(C) provides in its entirety as
follows:

No undesirable structures. No building or structure shall be
erected, structurally altered, or relocated in a manner which shall
be of such character as to adversely affect the nearby properties
or general desirability of the neighborhood.

(continued)

5
No. 2021AP1390

the Village proceeded on an incorrect theory of law by determining that the
Village was preempted from denying the CUP application on these grounds. We
agree.

¶8 A letter from the President of the Village of Big Bend to the Village
of Vernon Board exemplifies the concerns expressed by many neighbors at the
hearings that the tower would be incompatible with the rural, residential character
of the properties that surround it and would diminish the value of those properties.
The President pointed out that the Hansen Property was zoned rural residential,
with a five-acre minimum lot size. He noted that the tower would have a
substantial impact on the property values of the homes in the vicinity, including
the single family residential properties in the adjacent portion of the Village of Big
Bend, which were intended to be semirural in nature. He stated that the cell tower
“will destroy the property values, ruin the enjoyment of residents[’] own rural
yards, and may pose a safety hazard to the immediately adjacent people and their
homes.” Several others who testified at the hearings also set forth information

(1) If a question arises about a building or structure, the issue
shall be submitted by the Town Building Inspector to the
Town Plan Commission for its review.

(2) A determination by the Town Board, upon recommendation
of the Town Plan Commission, shall be made and stated in
writing, including the reason for denying a permit or
conditions of approval for a permit, and may be based upon
considerations that the design or appearance is of such an
unorthodox or abnormal character as to have an adverse
effect on the nearby properties or general desirability of the
neighborhood.

During the meetings held by the Village board concerning Diamond’s application, two
residents near the Hansen Property referenced this ordinance in their remarks opposing approval
of the CUP.

6
No. 2021AP1390

regarding the impact the tower would have on the area, including decreased
property values.6 Residents expressed concerns regarding the uses, value, and
enjoyment of their land.

¶9 In the board’s deliberations, the Village President began by stating
that he believed the tower was incompatible with the residential area and would
reduce local property values. Two trustees then agreed with this assessment. This
included Trustee Swanee, who voted to deny the CUP and stated that there was
substantial evidence that the proposed tower would decrease property values:

TRUSTEE SWANEE: I could read this page on this
particular condition. I feel that it violates our code or land
use plan. It’s a residential area. In my mind it does not
belong in an area where there are literally hundreds of other
locations that would be better suited to the residents.[7]
(Inaudible) for the tower folks. (Inaudible) to put your
tower, and I concur with all your comments about the
property value. A tower in your backyard does reduce
property values.

I read and have recorded four different surveys of study
that say exactly that by professionals in the industry. But
from the––and a number of others. They all say the same

6
In addition to several studies provided to the Village board, many residents expressed
serious concerns at the hearings about property values, personally believing that there would be a
negative impact. Although public hearings on CUPs are not subject to the rules of evidence, we
note that, even under those stricter rules, a witness may give his or her opinion as to value of
property the witness owns. See Eco-Site, 388 Wis. 2d 375, ¶17 (citing Wilberscheid v.
Wilberscheid, 77 Wis. 2d 40, 48, 252 N.W.2d 76 (1977) (an owner is competent to give opinion
evidence on value)); see also WIS. STAT. § 907.01.

7
WISCONSIN STAT. § 66.0404(4)(p) prohibits denial of an application to build a cell
tower “based on an assessment by the political subdivision of the suitability of other locations for
conducting the activity.” Trustee Swanee’s comment about other suitable locations arguably falls
within this provision, but no party argues that it undermines his comments regarding diminished
property values and, in any event, no violation of the statute occurred because the Village board
approved Diamond’s application.

7
No. 2021AP1390

thing. You don’t want to pay that much for your house that
has a tower right there. That’s an issue. (Inaudible).

So, you know, to me it also is not––it’s contrary to the
public health and safety, you know. I think we’ve spent
enough on that subject, but that aside (inaudible) deny the
application.

And then, of course, it was harmful and noxious,
offensive is the one that I kind of key out because if you
have no reason in my mind to vote against it, but also I felt
that it is not a reason to deny the application. So on this
particular one I would vote that it’s––yeah, it’s condition
applicable. Has there been substantial evidence provided
by petitioner. I would say no, there’s no evidence other
than (inaudible). It’s okay.

Then substantial evidence to the contrary, I’ve got yes in
that we’ve got all these studies that say (inaudible). And
does it meet our standards for that area, residential area. So
can the condition be met? No.

¶10 Another Trustee agreed that the cell tower would cause a “drop” in
property values and would not be compatible with the neighborhood:

SPEAKER: I appreciate all the comments and all the
information. We received a lot of information. It was
really––we needed to go through this significantly, and I
believe we did, and I can only adhere to what President
Portner and Trustee Swanee said in regard to some of the
points that they made.

The particular one that sticks in my mind is the drop in
property values. A home that’s located near a cell tower is
going to be––lose the value and also be hard to sell, and
that’s proven by home values right now, and was drawn out
in testimony with one of the residents with regard to a
property by hers, a cell tower up there, and they indicated
the house has been for sale for approximately 380 some
days, and they dropped the price, and it’s next door to a cell
tower. So that’s the significant fact to me because property
values––we all have houses and we’re all directly affected
by something that happens in our neighborhood, whether
it’s a cell tower or a business that moves in close to us that
affects your property value one way or another. So at this
point I––that’s one of the main reasons that I have in
making a judgment call with regard to this application. So
I think besides being not really compatible with the

8
No. 2021AP1390

neighborhood, it’s not exactly significant to have
something like this in your backyard.

¶11 Village President Portner, in calling for a vote on the question,
agreed with the others that there was substantial evidence that the proposed tower
would negatively impact property values, but added that he believed that state law
prevented the trustees from considering that information or denying the
application on that basis:

Now, we’ve heard a lot of discussion and heard the village
board level made a motion to approve this, and again it’s a
very difficult decision, and you’ve heard my comments.
And although I’m personally opposed to this tower and I
wish we could deny it, I think the state statutes have tied
our hands too much with respect to what we can consider,
and unfortunately and very frustrating to me that the state
statute and the powers above us, the law has prevented us
locally, local governors from considering (inaudible).
And including whether there’s a diminution of property
values, which I agree that we found substantial evidence.
At the end it’s all about money, and Mr. Hans[e]n, by
entering into this lease, and I’m not necessarily laying the
blame on the cell tower company for this, but by entering
into this lease, he’s increased the value of his property at
the expense of others. And without clear guidance under
state law whether we can deny it on that basis, and also on
the basis of our land use plans, I’m reluctant to deny it, so I
second that motion [to approve].

(Emphases added.)

¶12 The Village board then voted 3-2 to approve the CUP.8 The
deciding vote was that of the Village President, who erroneously believed that the
Village could not consider whether the tower would adversely affect nearby
property values or the desirability of the neighborhood. Again, he stated that there
was substantial evidence that the tower would diminish property values,

8
The plan commission did not make a recommendation to approve or deny.

9
No. 2021AP1390

emphasizing that the Hansen Property benefitted at the expense of others. He
indicated that he would deny the CUP on “that basis,” but stated that state law
preempted, or prevented, that consideration.

¶13 A determination as to whether a local board acts according to law is
a determination of law. See, e.g., Ogden Fam. Tr., 385 Wis. 2d 676, ¶24; Eco-
Site, 388 Wis. 2d 375, ¶9; Osterhues v. Board of Adjustment for Washburn
Cnty., 2005 WI 92, ¶12, 282 Wis. 2d 228, 698 N.W.2d 701 (reviewing de novo
whether board acted based on an incorrect theory of law). Ogden Family Trust
provides guidance. In that case, the local board voted 2-2 on an assessor’s
decision to reclassify property from agricultural to residential for property tax
purposes, which sustained the residential assessment. Id., 385 Wis. 2d 676, ¶20.
The supreme court determined that this decision was based on the erroneous belief
that a business purpose was required in order for land to be classified as
agricultural land. Id., ¶25. This belief was an error of law. Id. The court
identified the erroneous belief by reviewing the assessor’s statements and those of
the board members prior to their votes as well as their votes. Id., ¶¶13-20.

¶14 Diamond and the Village do not develop any argument disputing the
central tenant of Eco-Site that WIS. STAT. § 66.0404 does not preempt local
ordinances that address considerations of compatibility and diminution in property
value. Nor do they make the case that these are inappropriate considerations.
Rather, Diamond and the Village postulate that the board felt constrained because
substantial evidence in the record showed that the cell tower would satisfy all of
the Village’s requirements, including not adversely impacting property values, and
thus, under WIS. STAT. § 62.23(7)(de)2.a., the board was required to approve the

10
No. 2021AP1390

CUP.9 That, however, is not what the trustees said. Indeed, it is directly contrary
to what the trustees said. Three trustees stated that substantial evidence showed
the tower would cause a diminution in property values. The Village President
underscored that this was a view held by the others, with his use of “we” when
stating “we found” that there was substantial evidence of diminution.10

¶15 Moreover, the Village President twice stated his belief that the state
law prevented them from considering decreased property values. These statements
squarely undermine Diamond’s postulation that WIS. STAT. § 62.23(7)(de)2.a. was
the state law referenced by the Village President as compelling approval. 11 That
leaves WIS. STAT. § 66.0404, the only other statute identified for the trustees, as
the state law the Village President erroneously believed preempted, or prevented,
the board from considering the adverse impact on the surrounding areas, including
a diminution of property values. The Village President’s statements set forth an
erroneous belief regarding the law, an error of law, not a statement of the trustees’

9
WISCONSIN STAT. § 62.23(7)(de)2.a. states in relevant part that “[i]f an applicant for a
[CUP] meets or agrees to meet all of the requirements and conditions specified in the city
ordinance or those imposed by the city zoning board, the city shall grant the [CUP].”
10
The parties agree that Diamond has the burden to provide substantial evidence that it
satisfies the requirements and conditions established by the local municipality. See WIS. STAT.
§ 62.23(7)(de)2.b. The trustees were advised that “‘[s]ubstantial evidence’ means facts and
information, other than merely personal preferences or speculation, directly pertaining to the
requirements and conditions an applicant must meet to obtain a conditional use permit and that
reasonable persons would accept in support of a conclusion.” “[S]ubstantial evidence is less than
a preponderance of the evidence, [but] it is ‘more than a mere scintilla of evidence and more than
conjecture and speculation.’” Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI
50, ¶44, 362 Wis. 2d 290, 865 N.W.2d 162 (citations omitted).
11
We note that Diamond and the Village fail to set forth key sentences from the Village
President’s statement in their brief. In any event, despite their repeated say so, the Village
President clearly did not state that the Village had to approve Diamond’s application because
substantial evidence showed that there would be no impact on property values.

11
No. 2021AP1390

“personal preference.” See § 62.23(7)(de)1.b. (substantial evidence does not
include “personal preferences”). The President’s remarks make clear that it was
only his mistaken belief that the Village could not, as a matter of law, consider
evidence of diminution that allowed the application to be approved.12

¶16 Diamond and the Village argue that VERNON, WIS., ORDINANCES ch.
300, § 300-15(C) does not apply to a cell tower. They contend that the
ordinance’s references to “undesirable buildings or structures” encompasses only
those which are akin to junk or that otherwise lack a useful purpose. This
argument does not carry the day for two reasons. First, Diamond and the Village
do not argue that the board could not consider the incompatibility of the cell tower
with the surrounding residential area or evidence that it would diminish nearby
property values in deciding whether to approve the CUP. Thus, regardless
whether those considerations fall within the terms of Section 300-15(C), the fact
remains that the Village President who cast the deciding vote to approve the CUP
did so because he believed the board could not consider them. That is an error of
law which infected the board’s decision-making process and which warrants
reversal.

¶17 Second, Diamond’s and the Village’s argument ignores the plain
language of the ordinance, which we may not do. We give statutory language its

12
A “Decision Worksheet,” filled in after the board’s vote, indicates that the board did
not find substantial evidence of diminution of property values. This is contrary to the Village
President’s remarks and, in any event, does not cure the error of law that infected his vote.

12
No. 2021AP1390

“common, ordinary, and accepted meaning” and “reasonable effect to every
word.” State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶45-46,
271 Wis. 2d 633, 681 N.W.2d 110; Milwaukee Dist. Council 48 v. Milwaukee
County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924 N.W.2d 153 (“In interpreting
municipal ordinances, we apply the same principles used in statutory
interpretation.”). VERNON, WIS., ORDINANCES ch. 300, § 300-15 regulates “[j]unk
or undesirable buildings or structures”; the use of “or” clearly distinguishes junk
as something other than undesirable buildings and structures. 13 Moreover,
subsection (C) contains no language which supports the “no useful purpose”
limitation that Diamond and the Village engraft upon it. Subsection (C) merely
states that “[n]o building or structure shall be erected, structurally altered, or
relocated in a manner which shall be of such character as to adversely affect the
nearby properties or general desirability of the neighborhood.” We see no basis to
construe this language as applying only to those structures that lack a useful
purpose.

13
Diamond and the Village also argue that the “Decision Worksheet” provided to the
trustees, which sets forth certain language that appears in WIS. STAT. § 62.23(7)(de), supports its
postulation that the trustees were compelled to approve the CUP because they found “substantial
evidence” that the permit application satisfied all of the Village’s requirements. This argument
fails to account for the fact that the trustees, so far as we can tell, were not informed that they
could deny the application if they found substantial evidence that it would adversely impact
surrounding property values. The worksheet merely cited a general ordinance, VERNON, WIS.,
ORDINANCES ch. 300, § 300-22(A), and informed the trustees that they could impose conditions
on their approval to ensure that the proposed use would not violate “this code.” The worksheet
did not cite § 300-15(C) or any other village ordinance relating to the impact of the tower on the
surrounding area. It did not inform the trustees that they could consider the adverse impact on the
neighborhood or diminution of property values. Given Diamond’s and the Village’s arguments
that the ordinance is not applicable or, in any event, that a denial because it is undesirable is
preempted, along with the lack of any reference in the Decision Worksheet, it is no surprise that
the Village President was seemingly unaware that the board could deny the application if it
determined that the conditional use would adversely impact property values or otherwise have an
adverse impact on the area.

13
No. 2021AP1390

¶18 Diamond and the Village do proclaim, without developing the
argument, that applying the ordinance because the cell tower is deemed
“undesirable” would be inconsistent with—and therefore precluded by—another
village ordinance that permits cell towers as a conditional use in areas that are
zoned rural residential. See VERNON, WIS., ORDINANCES ch. 300, § 300-33(E)
(referring to Exhibit A to ch. 300 identifying permitting uses in various zoning
districts). To the extent that this was the thinking behind consideration of the
CUP, this too would be an incorrect legal assumption. As we explained in Eco-
Site,

In Wisconsin, a conditional use is “one that has been
legislatively determined to be compatible in a particular
area, not a use that is always compatible at a specific site
within that area.” Thus, there is no presumption that a
“conditional use is ipso facto consistent with the public
interest or that a conditional use is a use as of right at a
particular site within an area zoned to permit that
conditional use.” The [Town of Cedarburg] ordinance
permits towers, if the conditions are met, but it does not
rubber stamp them.

Eco-Site, 388 Wis. 2d 375, ¶19 (citations omitted).

CONCLUSION

¶19 The Village board’s decision was based on an erroneous legal belief.
As such, the appropriate action is for the circuit court to remand this matter to the
Village to consider the CUP in a manner that is consistent with this decision. See
Osterhues, 282 Wis. 2d 228, ¶43; WIS. STAT. § 68.13(1) (“The court may affirm
or reverse the final determination, or remand to the decision maker for further
proceedings consistent with the court’s decision.”). Here, remand is appropriate
because the defect—proceeding on an incorrect legal basis—can be cured on

14
No. 2021AP1390

remand. See Hartland Sportsmen’s Club, Inc. v. City of Delafield, 2020 WI App
44, ¶¶14, 19, 393 Wis. 2d 496, 947 N.W.2d 214.

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

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

Sheila T. Reiff
Clerk of Court of Appeals

15