Fox Point approves cell tower on village property

Oct. 14, 2015

Fox Point —Despite protests from residents and some reluctance by village officials, a cell tower will be going up on Fox Point village property.

Following a public hearing on Tuesday, Oct. 13, the village board at the unanimous recommendation of the plan commission approved revisions to village code and a proposed conditional-use request from PI Telecom Infrastructure T, LLC, representing T-Mobile, to erect a 100-foot telecommunications tower at the Department of Public Works Yard, 7200 N. Santa Monica Blvd.

The tower, along with cabinets housing other necessary equipment, is proposed to be located on a fenced-in, 45-foot by 45-foot square parcel that straddles the southeast corner of the DPW yard and northeast corner of the pool parking lot.

Village Attorney Eric Larson explained that state laws adopted in July 2013 significantly limit local municipalities' authority over regulating telecommunications towers. Although the village's existing code would not have allowed a telecommunications company to locate a cell tower at the proposed site, T-Mobile argued that the local code could not be enforced because of the state-imposed preemptions.

According to Wisconsin Statutes Section 66.0404 – the intent of which, Larson said, is to allow for continued growth of telecommunications technology – a political subdivision, or local municipality, may not prohibit the placement of cell phone towers at particular locations within the political subdivision, and is restricted from enforcing local zoning codes that are not consistent with the state law, as well as from regulating such towers in several other ways.

Larson reluctantly recommended modifying village code to comply with state legislation and allow the tower, rather than face the possibility of litigation or a request to locate the tower in a less desirable location.

"What we can do is we can try to confine what they're doing to be the least intrusive to the village of Fox Point," Larson said. "That frankly is one reason for having it on village property, because it allows us to have more control over them."

However, several residents urged the board to stand its ground to come up with a solution that would be more agreeable to the village, with some suggesting that the village could partner with other municipalities and private residents to resist or at least seek more control over the request.

"There are ways of doing this that basically meet the vendor's needs but also meet our needs, and this is not one of them," said resident David Petering, who lives three blocks from the proposed cell tower location.

Petering suggested the village consider requiring the applicant to use small cell technology, which is designed to provide coverage in underserved residential areas, as a less intrusive alternative to a cellular tower.

However, Larson said the state legislation prevents the village from making such a request. Further, Derek McGrew, a representative for Parallel Infrastructure and T-Mobile on behalf of PI Telecom Infrastructure T, LLC, said that although small cells are good at filling in coverage gaps created when other signals are overloaded, the technology would not provide the company's desired level of coverage for the area.

The tower would provide a coverage radius of about one half to three-quarters of a mile from the proposed site, which was targeted most likely as a result of coverage complaints in the area, McGrew explained.

Resident Julie Caulfield also expressed concerns about the appearance of the tower, including whether it would require aviation lights, as well as the potential for negative health effects. Caulfield, who recently relocated to Fox Point in part for the community's beautiful surroundings, said she would not have made that decision had she known a cell tower would being going up near her home.

In response to those and other concerns voiced by area neighbors, McGrew said the tower would not require any aviation lights and is designed to be self-collapsible, as well as to allow up to three future collocations by other telecommunications providers.

Changes made to the village ordinances to accommodate T-Mobile's request, and other such cell tower requests, include reducing minimum setbacks from residential dwellings or schools from 500 feet to 100 feet for towers that are up to 100 feet tall and proposed to be located on sites that have existing public utility or village government structures, and eliminating the need for any additional procedural reviews or approvals other than conditional-use approval procedures. Any future requests for new cell towers or collocation on the T-mobile tower would require separate zoning and conditional-use approvals, Larson said.

Trustee Liz Sumner voted against the zoning changes. Both Sumner and Trustee Marty Tirado voted against the conditional-use order for the request.

Although the trustees voting in favor of the tower were sympathetic to residents' concerns, they explained that state legislation gave them little power to stop the proposal from coming to fruition.

"The state has been heavy-handed here and our powers are removed. It's my judgment that resistance to it is futile, and litigation is futile," Trustee Douglas Frazer said.

"But the fact is, I believe it's legal and we just have to, for the time being, accept it," Frazer added.

As part of the approval process, T-Mobile will also be required to enter into a ground license agreement with the village, which would include any payment to be made to the village by T-Mobile. Larson said the village has been working with T-Mobile over the course of the past year to negotiate the terms of that agreement, which is expected to come before the board within the next month.

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