Agenda - Planning Commission - 12/04/2003

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Page 6 -- October 25, 2003 84 university had been unable to begin construction on the tower. The permit was not issued under the ordinance unti/the county board ap- peal process had run to completion. Because the university began construction within one year of the date of the county board's final decision, the conditional use permit was nor void under local law. Citation: Town Board of Montrose v.. Board of Regents of the Ut~iversity of. Wisconsin, Court of A'ppeals of Wisconsin, Dist. 4, No. 02-2729 (2003). see also: Board of Regenr, v. Dane CounU, Board of Adjustme~,rs, 6J8 N. W. 2d 537 (2000). Telecommunications -- City claims permit denial based on large setback requirement . Setback designed to protect residents from falling tower NEB1CKSIC4_ (08/28/03) -- USOC of Greater Iowa Inc. applied for a condi- tional use permit to build a telecommunications tower within the city of Bellevue. The tower was necessary to fill a gap in its wireless service. The Bellevue Planning Commission staff recommended the permit be granted. The matter then went to the Bel/evue City Council. AZ'ter.a public hear/rig that included the testimony of USOC and eight neigh- bors, the city, council denied the permit. USOC sued the city, arguing the permit denial violated the Telecommuni- cations Act by prohibiting the delivery of wireless services. DECISION: Judgment'in favor of USOC. The city's denial failed to meet the standards established by the Telecom- munications Act. ]Eight layperson residents spoke in opposition to the tower, expressing only generalized concerns about aesthetics and property values. Under the Tele- communications Act, "not in my backyard" concerns did not constitute sub- stantial evidence that would merit a permit denial. . The city stated the application was denied because it didn't meet applicable setback requirements. However, no ci.ty council member expressed concerns about noncompliance with setbacks prior to the permit denial. In fact, the plan- ning commission ,;vas aware the setback requirement to the north was not met, yet it still recommended the conditional use permit be ~anted. The unusually large, 150-foot setback was imposed to ensure that no resi- dents would be harmed by the fall of the tower. However, there was no testi~ mony by residents who could have been affected by such a fall. The owners of two properties near the tower mentioned setbacks when they testified before the city council, but those owners lived west of the site. Also, there was undis- puted evidence the northern parcel would not be used as a residence because it was crossed by transmission lines. .' Citation: USOC of Greater Iowa bw. v. City of'Bellevue, U.S. District Court ,?bt' the District of Nebraska, No. 4.'03CV3]97 (2003).