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8/24/2016

Verizon sues Appleton over cell tower

Madeleine Behr, USA TODAY NETWORK-Wisconsin 4:43 p.m. CDT August 23, 2016

APPLETON - Verizon Wireless has sued the city after the Appleton Common Council rejected the company\'s bid for a cell tower permit in July.

\"The basis for the Common Council\'s denial of the Special Use Permit Application is both groundless and in direct conflict with Wisconsin law,\" Verizon Wireless and two other plantiffs argue in the civil complaint.

Aldermen voted 5-8 to reject a permit for a cell tower on the 2700 block of Kesting Court in north Appleton at its July 6 meeting, the second vote on the permit after it was first brought to council in June.

\"The city has been served with a lawsuit and we are preparing the answer,\" wrote Attorney Jim Walsh in an email to USA TODAY NETWORK-Wisconsin.

The city has 45 days to respond after the complaint was filed. The complaint was filed in Outagamie County Circuit Court on Aug. 1, so the city has until Sept. 15 to respond.

No outside counsel has been hired by the city, Walsh added.

State statutes adopted as part of the 2013 budget bill restrict how and when local municipalities can deny cell towers and donít account for height or aesthetics. Exceptions are made for public health or safety, but must be backed up with \"substantial written evidence.\"

Before the July vote, Walsh warned the council against rejecting the permit.

\"I can\'t in good conscience recommend you vote no because I have not heard anything I can go to court with besides, \'We don\'t like the law,\' and that\'s not going to fly,\" Walsh said.

Aldermen Jeff Jirschele, Curt Konetzke, Margret Mann, Kathleen Plank and Matthew Reed voted in favor of approving the permit. Aldermen Ed Baranowski, Patti Coenen, Chris Croatt, Joe Martin, Vered Meltzer, William Siebers, Cathy Spears and Christine Williams voted against it. Aldermen Greg Dannecker and Kyle Lobner were not in attendance.

In the complaint filed by Verizon Wireless, Central States Tower III LLC and Professional Associates, Walsh\'s warnings to the council and statements from aldermen during those meeting are included as evidence of the city\'s position conflicting with state law,

\"The Common Council\'s concern that Wisconsin state law which regulates the placement of wireless communications facilities is \'unjust\' and \'not a state issue\' is in direct conflict\" with state statutes, the plantiffs argue in the 12-page complaint.

The tower was proposed for the 2700 block of Kesting Court, just south of Northland Avenue, and would have been surrounded by residential homes to the east, south and west.

Last summer, the council voted to turn down a 105-foot cell tower on West Wisconsin Avenue, but reconsidered later that month and approved the project.

At that time, Walsh also advised the council that rejecting the permit would \"invite litigation.\"

The complaint regarding the planned Kesting Court tower asks for the court to reverse the city\'s decision as the decision was \"arbitrary, oppressive and unreasonable,\" and for the city to pay the plantiffs\' attorneys\' fees and court costs.