Chapter 66

66.0403(5)(a)2. 2. No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that she or he has applied for a building permit prior to receipt of a notice under sub. (3) (b), has expended at least $500 on planning or designing such a structure or by submitting any other credible evidence that she or he has made substantial progress toward planning or constructing a structure that would create an impermissible interference; and

66.0403(5)(a)3. 3. The benefits to the applicant and the public will exceed any burdens.

66.0403(5)(b) (b) An agency may grant a permit subject to any condition or exemption the agency deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include but are not limited to restrictions on the location of the solar collector or wind energy system and requirements for the compensation of persons affected by the granting of the permit.

66.0403(6) (6) Record of permit. If an agency grants a permit:

66.0403(6)(a) (a) The agency shall specify the property restricted by the permit under sub. (7) and shall prepare notice of the granting of the permit. The notice shall include the identification required under s. 706.05 (2) (c) for the owner and the property upon which the solar collector or wind energy system is or will be located and for any owner and property restricted by the permit under sub. (7), and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the solar collector or wind energy system which is the subject of the permit unless the permit affecting the property is terminated under sub. (9) or unless an agreement affecting the property is filed under sub. (10).

66.0403(6)(b) (b) The applicant shall record with the register of deeds of the county in which the property is located the notice under par. (a) for each property specified under par. (a) and for the property upon which the solar collector or wind energy system is or will be located.

66.0403(7) (7) Remedies for impermissible interference.

66.0403(7)(a) (a) Any person who uses property which he or she owns or permits any other person to use the property in a way which creates an impermissible interference under a permit which has been granted or which is the subject of an application shall be liable to the permit holder or applicant for damages, except as provided under par. (b), for any loss due to the impermissible interference, court costs and reasonable attorney fees unless:

66.0403(7)(a)1. 1. The building permit was applied for prior to receipt of a notice under sub. (3) (b) or the agency determines not to grant a permit after a hearing under sub. (4).

66.0403(7)(a)2. 2. A permit affecting the property is terminated under sub. (9).

66.0403(7)(a)3. 3. An agreement affecting the property is filed under sub. (10).

66.0403(7)(b) (b) A permit holder is entitled to an injunction to require the trimming of any vegetation which creates or would create an impermissible interference as defined under sub. (1) (f). If the court finds on behalf of the permit holder, the permit holder shall be entitled to a permanent injunction, damages, court costs and reasonable attorney fees.

66.0403(8) (8) Appeals. Any person aggrieved by a determination by a municipality under this section may appeal the determination to the circuit court for a review.

66.0403(9) (9) Termination of solar or wind access rights.

66.0403(9)(a) (a) Any right protected by a permit under this section shall terminate if the agency determines that the solar collector or wind energy system which is the subject of the permit is:

66.0403(9)(a)1. 1. Permanently removed or is not used for 2 consecutive years, excluding time spent on repairs or improvements.

66.0403(9)(a)2. 2. Not installed and functioning within 2 years after the date of issuance of the permit.

66.0403(9)(b) (b) The agency shall give the permit holder written notice and an opportunity for a hearing on a proposed termination under par. (a).

66.0403(9)(c) (c) If the agency terminates a permit, the agency may charge the permit holder for the cost of recording and record a notice of termination with the register of deeds, who shall record the notice with the notice recorded under sub. (6) (b) or indicate on any notice recorded under sub. (6) (b) that the permit has been terminated.

66.0403(10) (10) Waiver. A permit holder by written agreement may waive all or part of any right protected by a permit. A copy of such agreement shall be recorded with the register of deeds, who shall record such copy with the notice recorded under sub. (6) (b).

66.0403(11) (11) Preservation of rights. The transfer of title to any property shall not change the rights and duties under this section or under an ordinance adopted under sub. (2).

66.0403(12) (12) Construction.

66.0403(12)(a) (a) This section may not be construed to require that an owner obtain a permit prior to installing a solar collector or wind energy system.

66.0403(12)(b) (b) This section may not be construed to mean that acquisition of a renewable energy resource easement under s. 700.35 is in any way contingent upon the granting of a permit under this section.

66.0403 History History: 1981 c. 354; 1983 a. 189 s. 329 (14); 1983 a. 532 s. 36; 1993 a. 414; 1995 a. 201; 1999 a. 150 s. 82; Stats. 1999 s. 66.0403; 2007 a. 97; 2009 a. 40.

66.0403 Annotation Discussing the common law right to solar access. Prah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982).

66.0403 Annotation The owner of an energy system does not need a permit under this section. Barring enforceable municipal restrictions, an owner may construct a system without prior municipal approval. This section benefits and protects the owner of the system by restricting the use of nearby property to prevent an interference with the system. State ex rel. Numrich v. City of Mequon Board of Zoning Appeals, 2001 WI App 88, 242 Wis. 2d 677, 626 N.W.2d 366, 00-1643.

66.0403 Annotation Wisconsin Recognizes the Power of the Sun: Prah v. Maretti and the Solar Access Act. Grunow. 1983 WLR 1263.

66.0404 66.0404 Mobile tower siting regulations.

66.0404(1) (1) Definitions. In this section:

66.0404(1)(a) (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of mobile services.

66.0404(1)(b) (b) “Application” means an application for a permit under this section to engage in an activity specified in sub. (2) (a) or a class 2 collocation.

66.0404(1)(c) (c) “Building permit” means a permit issued by a political subdivision that authorizes an applicant to conduct construction activity that is consistent with the political subdivision’s building code.

66.0404(1)(d) (d) “Class 1 collocation” means the placement of a new mobile service facility on an existing support structure such that the owner of the facility does not need to construct a free standing support structure for the facility but does need to engage in substantial modification.

66.0404(1)(e) (e) “Class 2 collocation” means the placement of a new mobile service facility on an existing support structure such that the owner of the facility does not need to construct a free standing support structure for the facility or engage in substantial modification.

66.0404(1)(f) (f) “Collocation” means class 1 or class 2 collocation or both.

66.0404(1)(g) (g) “Distributed antenna system” means a network of spatially separated antenna nodes that is connected to a common source via a transport medium and that provides mobile service within a geographic area or structure.

66.0404(1)(h) (h) “Equipment compound” means an area surrounding or adjacent to the base of an existing support structure within which is located mobile service facilities.

66.0404(1)(i) (i) “Existing structure” means a support structure that exists at the time a request for permission to place mobile service facilities on a support structure is filed with a political subdivision.

66.0404(1)(j) (j) “Fall zone” means the area over which a mobile support structure is designed to collapse.

66.0404(1)(k) (k) “Mobile service” has the meaning given in 47 USC 153 (33).

66.0404(1)(L) (L) “Mobile service facility” means the set of equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and associated equipment, that is necessary to provide mobile service to a discrete geographic area, but does not include the underlying support structure.

66.0404(1)(m) (m) “Mobile service provider” means a person who provides mobile service.

66.0404(1)(n) (n) “Mobile service support structure” means a freestanding structure that is designed to support a mobile service facility.

66.0404(1)(o) (o) “Permit” means a permit, other than a building permit, or approval issued by a political subdivision which authorizes any of the following activities by an applicant:

66.0404(1)(o)1. 1. A class 1 collocation.

66.0404(1)(o)2. 2. A class 2 collocation.

66.0404(1)(o)3. 3. The construction of a mobile service support structure.

66.0404(1)(p) (p) “Political subdivision” means a city, village, town, or county.

66.0404(1)(q) (q) “Public utility” has the meaning given in s. 196.01 (5).

66.0404(1)(r) (r) “Search ring” means a shape drawn on a map to indicate the general area within which a mobile service support structure should be located to meet radio frequency engineering requirements, taking into account other factors including topography and the demographics of the service area.

66.0404(1)(s) (s) “Substantial modification” means the modification of a mobile service support structure, including the mounting of an antenna on such a structure, that does any of the following:

66.0404(1)(s)1. 1. For structures with an overall height of 200 feet or less, increases the overall height of the structure by more than 20 feet.

66.0404(1)(s)2. 2. For structures with an overall height of more than 200 feet, increases the overall height of the structure by 10 percent or more.

66.0404(1)(s)3. 3. Measured at the level of the appurtenance added to the structure as a result of the modification, increases the width of the support structure by 20 feet or more, unless a larger area is necessary for collocation.

66.0404(1)(s)4. 4. Increases the square footage of an existing equipment compound to a total area of more than 2,500 square feet.

66.0404(1)(t) (t) “Support structure” means an existing or new structure that supports or can support a mobile service facility, including a mobile service support structure, utility pole, water tower, building, or other structure.

66.0404(1)(u) (u) “Utility pole” means a structure owned or operated by an alternative telecommunications utility, as defined in s. 196.01 (1d); public utility, as defined in s. 196.01 (5); telecommunications utility, as defined in s. 196.01 (10); political subdivision; or cooperative association organized under ch. 185; and that is designed specifically for and used to carry lines, cables, or wires for telecommunications service, as defined in s. 182.017 (1g) (cq); for video service, as defined in s. 66.0420 (2) (y); for electricity; or to provide light.

66.0404(2) (2) New construction or substantial modification of facilities and support structures.

66.0404(2)(a) (a) Subject to the provisions and limitations of this section, a political subdivision may enact a zoning ordinance under s. 59.69, 60.61, or 62.23 to regulate any of the following activities:

66.0404(2)(a)1. 1. The siting and construction of a new mobile service support structure and facilities.

66.0404(2)(a)2. 2. With regard to a class 1 collocation, the substantial modification of an existing support structure and mobile service facilities.

66.0404(2)(b) (b) If a political subdivision regulates an activity described under par. (a), the regulation shall prescribe the application process which a person must complete to engage in the siting, construction, or modification activities described in par. (a). The application shall be in writing and shall contain all of the following information:

66.0404(2)(b)1. 1. The name and business address of, and the contact individual for, the applicant.

66.0404(2)(b)2. 2. The location of the proposed or affected support structure.

66.0404(2)(b)3. 3. The location of the proposed mobile service facility.

66.0404(2)(b)4. 4. If the application is to substantially modify an existing support structure, a construction plan which describes the proposed modifications to the support structure and the equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment associated with the proposed modifications.

66.0404(2)(b)5. 5. If the application is to construct a new mobile service support structure, a construction plan which describes the proposed mobile service support structure and the equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment to be placed on or around the new mobile service support structure.

66.0404(2)(b)6. 6. If an application is to construct a new mobile service support structure, an explanation as to why the applicant chose the proposed location and why the applicant did not choose collocation, including a sworn statement from an individual who has responsibility over the placement of the mobile service support structure attesting that collocation within the applicant’s search ring would not result in the same mobile service functionality, coverage, and capacity; is technically infeasible; or is economically burdensome to the mobile service provider.

66.0404(2)(c) (c) If an applicant submits to a political subdivision an application for a permit to engage in an activity described under par. (a), which contains all of the information required under par. (b), the political subdivision shall consider the application complete. If the political subdivision does not believe that the application is complete, the political subdivision shall notify the applicant in writing, within 10 days of receiving the application, that the application is not complete. The written notification shall specify in detail the required information that was incomplete. An applicant may resubmit an application as often as necessary until it is complete.

66.0404(2)(d) (d) Within 90 days of its receipt of a complete application, a political subdivision shall complete all of the following or the applicant may consider the application approved, except that the applicant and the political subdivision may agree in writing to an extension of the 90 day period:

66.0404(2)(d)1. 1. Review the application to determine whether it complies with all applicable aspects of the political subdivision’s building code and, subject to the limitations in this section, zoning ordinances.

66.0404(2)(d)2. 2. Make a final decision whether to approve or disapprove the application.

66.0404(2)(d)3. 3. Notify the applicant, in writing, of its final decision.

66.0404(2)(d)4. 4. If the decision is to disapprove the application, include with the written notification substantial evidence which supports the decision.

66.0404(2)(e) (e) A political subdivision may disapprove an application if an applicant refuses to evaluate the feasibility of collocation within the applicant’s search ring and provide the sworn statement described under par. (b) 6.

66.0404(2)(f) (f) A party who is aggrieved by the final decision of a political subdivision under par. (d) 2. may bring an action in the circuit court of the county in which the proposed activity, which is the subject of the application, is to be located.

66.0404(2)(g) (g) If an applicant provides a political subdivision with an engineering certification showing that a mobile service support structure, or an existing structure, is designed to collapse within a smaller area than the setback or fall zone area required in a zoning ordinance, that zoning ordinance does not apply to such a structure unless the political subdivision provides the applicant with substantial evidence that the engineering certification is flawed.

66.0404(2)(h) (h) A political subdivision may regulate the activities described under par. (a) only as provided in this section.

66.0404(2)(i) (i) If a political subdivision has in effect on July 2, 2013, an ordinance that applies to the activities described under par. (a) and the ordinance is inconsistent with this section, the ordinance does not apply to, and may not be enforced against, the activity.

66.0404(3) (3) Collocation on existing support structures.

66.0404(3)(a) (a)

66.0404(3)(a)1. 1. A class 2 collocation is a permitted use under ss. 59.69, 60.61, and 62.23.

66.0404(3)(a)2. 2. If a political subdivision has in effect on July 2, 2013, an ordinance that applies to a class 2 collocation and the ordinance is inconsistent with this section, the ordinance does not apply to, and may not be enforced against, the class 2 collocation.

66.0404(3)(a)3. 3. A political subdivision may regulate a class 2 collocation only as provided in this section.

66.0404(3)(a)4. 4. A class 2 collocation is subject to the same requirements for the issuance of a building permit to which any other type of commercial development or land use development is subject.

66.0404(3)(b) (b) If an applicant submits to a political subdivision an application for a permit to engage in a class 2 collocation, the application shall contain all of the information required under sub. (2) (b) 1. to 3., in which case the political subdivision shall consider the application complete. If any of the required information is not in the application, the political subdivision shall notify the applicant in writing, within 5 days of receiving the application, that the application is not complete. The written notification shall specify in detail the required information that was incomplete. An applicant may resubmit an application as often as necessary until it is complete.

66.0404(3)(c) (c) Within 45 days of its receipt of a complete application, a political subdivision shall complete all of the following or the applicant may consider the application approved, except that the applicant and the political subdivision may agree in writing to an extension of the 45 day period:

66.0404(3)(c)1. 1. Make a final decision whether to approve or disapprove the application.