2024 WI App 43

COURT OF APPEALS

DECISION

DATED AND FILED

July 18, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2023AP78

2023AP1339

Cir. Ct. No. 2021CV162

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

BUDDY J. SAVICH AND JANEL M. SAVICH,

 PLAINTIFFS,

SBA STRUCTURES, LLC,

 PLAINTIFF-RESPONDENT,

 V.

COLUMBIA COUNTY BOARD OF ADJUSTMENT AND

COLUMBIA COUNTY PLANNING & ZONING DEPARTMENT,

 DEFENDANTS-APPELLANTS,

AT&T MOBILITY,

 DEFENDANT,

TILLMAN INFRASTRUCTURE LLC, CHRIS MCNICOL 

AND ROBIN MCNICOL,

 DEFENDANTS-CO-APPELLANTS.
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2

BUDDY J. SAVICH,

 PLAINTIFF-RESPONDENT-CROSS-APPELLANT,

SBA STRUCTURES, LLC,

 PLAINTIFF-RESPONDENT,

JANEL M. SAVICH,

 PLAINTIFF,

 V.

COLUMBIA COUNTY BOARD OF ADJUSTMENT AND 

COLUMBIA COUNTY PLANNING & ZONING DEPARTMENT,

 DEFENDANTS-CO-APPELLANTS-CROSS-RESPONDENTS,

TILLMAN INFRASTRUCTURE LLC, AT&T MOBILITY,

CHRIS MCNICOL AND ROBIN MCNICOL,

 DEFENDANTS-APPELLANTS-CROSS-RESPONDENTS.

APPEALS and CROSS-APPEAL from orders of the circuit court for 

Columbia County: TODD J. HEPLER, Judge. On appeals, final orders reversed

and cause remanded with directions; on cross-appeal, non-final orders affirmed. 

Before Kloppenburg, P.J., Blanchard, and Graham, JJ.

¶1 BLANCHARD, J. The Columbia County zoning administrator

granted an administrative permit for the construction of a new telecommunications

tower. Opponents of the proposed tower site appealed to the Columbia County 

Board of Adjustment (“the BOA”), arguing in part that the permit violates a 
Nos. 2023AP78

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3

county ordinance providing that new towers cannot be closer than one-half mile to 

existing telecommunications towers. The BOA affirmed the permit. This was

based in part on the determination that the county’s tower-separation ordinance

does not stand in the way of the permit because the ordinance is preempted by a 

state statute that limits how political subdivisions may regulate the siting and 

construction of telecommunication towers. See WIS. STAT. § 66.0404 (2021-22).

1

¶2 On certiorari review, the circuit court reversed the BOA’s permit 

decision. The court ruled that the BOA lacked authority to treat the county’s 

tower-separation ordinance as unenforceable based on preemption. Instead, the 

court ruled, because the ordinance was duly enacted by the Columbia County 

Board of Supervisors, the BOA was obligated to enforce it. See Ledger v. City of 

Waupaca Bd. of Appeals, 146 Wis. 2d 256, 430 N.W.2d 370 (1988) (reaffirming 

general rule that zoning boards of appeals may not declare duly enacted 

ordinances unenforceable). 

¶3 We reverse the circuit court’s ruling, based primarily on two 

conclusions. First, the rule reaffirmed in Ledger did not bar the BOA from 

applying the preemption doctrine to the tower-separation ordinance. This is

because a separate Columbia County ordinance, which the BOA was also required 

to consider, establishes that all of the county’s ordinances are unenforceable to the 

extent that they conflict with state statutes. Second, the BOA correctly determined 

that the county tower-separation ordinance is preempted by the state sitingregulations statute. Preemption applies because the tower-separation ordinance

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
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4

logically conflicts with one requirement in the statute, which is that political 

subdivisions may not enact ordinances “prohibiting the placement of” towers “in 

particular locations within the political subdivision.” See WIS. STAT.

§ 66.0404(4)(c).

¶4 There is a cross-appeal filed solely by Buddy Savich, pro se, who 

resides on property near the proposed tower site. In the cross-appeal, we interpret 

Savich to primarily argue that, in the event that we reverse the circuit court ruling 

overturning the BOA’s permit decision (as we do in this opinion), we should 

remand for further proceedings. This is because, Savich contends, the circuit court 

improperly declined to address motions that he made in the circuit court to allow 

discovery and expand the certiorari record. We affirm the circuit court orders that 

Savich challenges in the cross-appeal because he fails to support his argument that 

additional discovery should be permitted and that the record should be expanded 

so that he can pursue additional grounds to reverse the BOA’s permit decision on 

remand.

¶5 We also reject arguments by SBA and Savich to the effect that, 

separate from the preemption issue, there was not substantial evidence to support 

the BOA’s decision to affirm the permit.

¶6 Based on these conclusions, the permit challenges fail. We reverse

the circuit court decision to reverse the BOA’s decision affirming the permit

issued by the zoning administrator, and we remand with directions to affirm the 

BOA’s decision.
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BACKGROUND

¶7 Tillman Infrastructure, LLC, joined by mobile service provider 

AT&T Mobility, applied to the Columbia County Planning and Zoning 

Department (“the Department”) for a permit to construct a new tower at an 

identified site.2 The Tillman tower would house telecommunications equipment

owned and operated by AT&T. Standing 260 feet tall, it would be located on land 

zoned for agricultural uses in an unincorporated part of the county, specifically on 

land leased from Chris McNicol and Robin McNicol. See WIS. STAT.

§ 66.0404(5) (permitting counties to regulate towers and telecommunications 

equipment “only in the unincorporated parts of the county”).

¶8 An existing 199-foot tower owned by SBA Structures, LLC, is 

closer than one-half mile to the proposed Tillman tower site. AT&T has leased 

space on the SBA tower for AT&T telecommunications equipment since 2001. 

The Tillman-AT&T permit application took the position that AT&T should be 

allowed to relocate its telecommunications equipment from the SBA tower to the 

proposed Tillman Tower because that would save AT&T tower-leasing costs. 

¶9 The Columbia County zoning director issued an administrative 

permit to Tillman allowing construction of the tower at the proposed site. 

 

2

 For ease of reference, in place of the statutory phrase “mobile service facility,” we 

generally use the phrase “telecommunications equipment,” and in place of “mobile service 

support structure” we generally use the term “tower.” See WIS. STAT. § 66.0404(1)(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)(n) (“‘Mobile service support structure’ means a 

freestanding structure that is designed to support a mobile service facility.”). 
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¶10 SBA challenged that decision in an appeal to the BOA. Also filing 

an appeal to the BOA were Buddy Savich and Janel Savich, who would be 

neighbors to the new tower.

3

 

¶11 SBA and Savich both contended that the permit violated two

Columbia County ordinances: one that requires the separation of towers from 

each other by at least 2,640 feet (one-half mile), COLUMBIA COUNTY ORD. 16-

125-220(H)(6) (April 2019) (“the tower-separation ordinance”); and another that 

requires applicants to submit sworn statements demonstrating justification for the 

construction of new towers with telecommunications equipment, ORD. 16-125-

220(D)(1)6. (April 2019); see also WIS. STAT. § 66.0404(2)(b)6. (also requiring 

sworn statements of need).4 Savich alone argued that the permit violated a third 

ordinance that establishes a balancing test for the issuance of permits in this 

context. See ORD. 16-125-220(A)(1). 

¶12 The BOA received extensive submissions from the parties and held a 

public hearing. At the hearing, the BOA received additional evidence, heard 

arguments, and deliberated. The evidence included testimony by a Department 

employee that the proposed Tillman tower would be about 2,530 feet from the 

existing SBA tower—110 feet short of one-half mile—and that it was not feasible 

to site the Tillman tower 110 feet further away, because this would put it “in the 

middle of the wetland directly [to the] south.” 

 

3

 For ease of reference, we use “Savich” to refer both to Buddy and Janel in the countylevel proceedings and also to Buddy at all stages of the proceedings.

4

 Columbia County amended and renumbered its ordinances in 2021. For all references 

to the ordinances, we follow the parties in citing to the ordinances adopted in May 2014, and 

amended in April 2019, which were in effect in August 2020 when the Tillman-AT&T 

application for a zoning use permit was filed. 
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¶13 The BOA affirmed the permit in a written set of findings of fact and 

conclusions of law. This was an exercise of the BOA’s authority under WIS.

STAT. § 59.694(8), which applies when a county board of adjustment considers an 

appeal of a decision of a county officer, such as the zoning administrator. Under 

§ 59.694(8), the BOA “shall have all the powers of the officer” to reverse, affirm, 

or in any manner change or replace the officer’s decision. 

¶14 On the preemption issue, the BOA agreed with Tillman that the 

county tower-separation ordinance is preempted by WIS. STAT. § 66.0404. On that 

basis the BOA declined to enforce the tower-separation ordinance. Regarding the 

adequacy of the statement of need, the BOA decided that an affidavit of AT&T’s 

director of network planning, together with oral testimony given to the BOA by an 

AT&T real estate manager, were “sufficient to meet the requirements set forth in 

[COLUMBIA COUNTY ORD.] 16-125-220(D)(1)6. and § 66.0404(2)(b)6.” 

Resolving Savich’s balancing-test argument, the BOA determined that the zoning 

administrator “properly weighed the factors set forth in [ORD.] 16-125-

220(A)(1),” and on that basis the BOA accepted “as its own” the administrator’s 

“determination relating to such factors.” 

¶15 In the Columbia County Circuit Court, SBA filed a joint complaint 

for declaratory relief based on WIS. STAT. §§ 806.04 and 66.0404(2)(f) and for 

certiorari review based on WIS. STAT. § 59.694(10). The complaint named the 

BOA, the Department, and Tillman as defendants, and the McNicols as “interested 

persons.” The next day Savich filed a complaint and petition in the circuit court 

naming all those parties as defendants. The cases were consolidated. The circuit 

court dismissed SBA’s claim for declaratory relief, and this court ruled that the 

only relief that Savich could seek would be on certiorari review, as opposed to 

declaratory relief. Savich v. Columbia Cnty. Bd. of Adjustment, 
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No. 2022AP1348, unpublished slip op. (WI App May 11, 2023). The result, not 

disputed on appeal, is that the circuit court ruling at issue here is exclusively the 

product of certiorari review.

¶16 On June 22, 2022, the circuit court granted Tillman’s motion to 

dismiss Savich’s complaint on the ground that it was filed untimely. Savich 

appealed that ruling. Id. In May 2023, this court reversed the dismissal of 

Savich’s complaint. Id.

¶17 While Savich’s appeal of the dismissal of his complaint was 

pending, the circuit court proceeded to address the merits of SBA’s challenge to 

the permit. On November 30, 2022, the court issued an order reversing the BOA’s 

decision affirming the permit. Citing Ledger, the court ruled that the BOA “acted 

outside of its jurisdiction[,] contrary to law,” because the BOA improperly 

“substituted its judgment and interpretation of the law” for that of the county 

board of supervisors in enacting the tower-separation ordinance. 

¶18 The proponents of the Tillman tower appealed the circuit court 

order, and this court stayed the appeal pending the outcome of Savich’s appeal. 

Following our reversal of the circuit court’s dismissal of Savich’s complaint, on 

July 24, 2023, the circuit court entered an order stating that “the rights and 

remedies adjudicated” in its earlier November 30, 2022 order “apply in full to all 

remaining parties in this case: Buddy J. Savich, SBA Structures LLC, and all 

Defendants.” The Tillman tower proponents filed a second appeal. 

¶19 This court consolidated the two appeals for briefing and disposition 

by an order dated August 2, 2023. See WIS. STAT. RULE 809.10(3). Before us 

now are the following: (1) arguments in the consolidated appeals by Tillman, 

AT&T, and the McNicols (collectively, “Tillman”), the parties with a shared 
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9

interest in construction of the proposed tower, challenging the circuit court’s 

ruling reversing the BOA’s permit decision; (2) arguments in the consolidated 

appeals by the Department and the BOA (collectively, “the county parties”), in 

part paralleling the arguments made by Tillman; and (3) a cross-appeal by Savich, 

which we construe to be defensive, in the sense that we need to address the crossappeal only if, in the appeal, we reverse the circuit court ruling reversing the 

BOA’s permit decision. That is, only if we reverse the circuit court ruling in the 

appeal does Savich seek in the cross-appeal a remand for further proceedings in 

which the circuit court would address, for a second time, whether substantial 

evidence supported the BOA’s permit decision. Tower opponents SBA and 

Savich have filed separate briefs in support of the circuit court’s reversal of the 

BOA’s permit decision.

DISCUSSION

¶20 There is no dispute about the following. If the BOA was required to 

enforce the tower-separation ordinance, then the permit is invalid because the 

Tillman tower would be closer than one-half mile to the existing SBA tower. We 

first address the issues raised in the appeals regarding whether the BOA was 

required to enforce the tower-separation ordinance: whether the BOA kept within 

its jurisdiction, under the rule reaffirmed in Ledger that recognizes one limitation

on the authority of zoning boards of appeals; and, assuming that the BOA kept 

within its jurisdiction, whether the siting-regulations statute preempts the towerseparation ordinance. Then, having explained our determinations that the BOA 

kept within its jurisdiction and that the statute preempts the ordinance, we turn to 

Savich’s cross-appeal. After explaining why we reject the cross-appeal, we 
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address whether there was substantial evidence for the BOA’s permit decision 

based on the record as it stands.

5

¶21 We engage in the interpretation of statutes and county ordinances. 

This “‘begins with the language of the statute. If the meaning of the statute is 

plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane 

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source 

omitted); see also Milwaukee District 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.”). “[S]tatutory 

language is interpreted in the context in which it is used; not in isolation but as 

part of a whole; in relation to the language of surrounding or closely-related 

statutes; and reasonably, to avoid absurd or unreasonable results.” Kalal, 271 

Wis. 2d 633, ¶46. “‘If this process of analysis yields a plain, clear statutory 

meaning, then there is no ambiguity, and the statute is applied according to this 

ascertainment of its meaning.’” Id. (quoted source omitted). If, instead, statutory 

language is ambiguous, then courts may examine legislative history to resolve the 

ambiguity. See id., ¶¶50-51. 

 

5

 We now briefly explain why we do not address Tillman’s argument that SBA lacked 

standing to seek certiorari review of the BOA’s decision in the circuit court. SBA responds in 

pertinent part that whether it has standing is “moot” and that we should not address this issue. 

SBA points out that: Savich is a current party on appeal; Savich is aligned with SBA on the

issues; SBA and Savich raised the same issues before the BOA and in the circuit court; and SBA 

and Savich obtained the same relief from the circuit court, which was the only relief they sought. 

Tillman’s reply to these arguments is conclusory. Tillman fails to develop supported arguments 

that SBA and Savich have taken substantially different material positions, that Savich’s positions 

on appeal are not adequately developed, or that SBA’s standing, which would not resolve the 

substantive issues on appeal, nevertheless merits resolution. Accordingly we decline to address 

the issue of standing. 
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¶22 As noted, all of the issues that we address involve certiorari review 

of the BOA’s permit decision. “A person aggrieved by any decision of” a county

board of adjustment may timely “commence an action seeking the remedy 

available by certiorari.” WIS. STAT. § 59.694(10).

When conducting certiorari review, a court reviews the 

record compiled by the local governmental body, and 

generally does not take any additional evidence on the 

merits of the decision. Additionally, the court affords a 

presumption of correctness and validity to the local 

governmental body’s decision. On appeal of a circuit court 

certiorari decision, we review the decision of the local 

governmental body, not the decision of the circuit court.

Miller v. Zoning Bd. of Appeals of Lyndon Station, 2022 WI App 51, ¶18, 404

Wis. 2d 539, 980 N.W.2d 295 (cited authority omitted).

¶23 In the contexts here, we review issues of law de novo, independently 

from the legal determinations rendered by the BOA or the circuit court. See

Ottman v. Town of Primrose, 2011 WI 18, ¶54, 332 Wis. 2d 3, 796 N.W.2d 411. 

¶24 Certiorari review here is limited to whether the BOA: “‘(1) kept 

within its jurisdiction; (2) proceeded on a correct theory of law; (3) did not act in 

an arbitrary, oppressive, or unreasonable manner that represented its will and not 

its judgment; and (4) might reasonably take this action based on the evidence.’” 

See Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶41, 362 

Wis. 2d 290, 865 N.W.2d 162 (quoted source omitted). 

I. WHETHER THE BOA KEPT WITHIN ITS JURISDICITON 

¶25 Tillman and the county parties argue that the circuit court erred in 

ruling that the BOA did not keep within its jurisdiction when the BOA decided

that the tower-separation ordinance is preempted by the state siting-regulations 
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statute. In the challenged ruling, the court ruled that the BOA should have, but did 

not, in the words of Ledger, “accept” the tower-separation ordinance “as written.” 

See Ledger, 146 Wis. 2d at 263 (citing 3 Rathkopf, THE LAW OF ZONING &

PLANNING, § 37.02(8) at 37-37 (1988)). According to Tillman and the county 

parties, the court erred in failing to take into account another ordinance, separate 

from the tower-separation ordinance. The other ordinance is a rule of use and 

construction for all county ordinances that forbids enforcement of any ordinance

to the extent that it conflicts with a state statute. We agree with Tillman and the 

county parties. 

¶26 Specifically, Tillman and the county parties direct us to COLUMBIA 

COUNTY ORD. 1-1-7, which we consider to be dispositive on this issue.

6

 We call 

this “the county preemption ordinance.”

¶27 The county preemption ordinance is found in the chapter of the 

county’s code of ordinances that establishes rules for the “[u]se and 

[c]onstruction” of all county ordinances. It states, “To the extent that the 

provisions of this Code of Ordinances conflict with the Wisconsin Statutes or 

federal regulations, said statutes and regulations shall control.” COLUMBIA 

COUNTY ORD. 1-1-7(c).

7

 The zoning administrator emphasized in testimony to the 

 

6

 Tillman and the county parties also highlight another provision in the county’s zoning 

code, which may support their argument but which is less obviously on point. See COLUMBIA 

COUNTY ORD. 16-101-050(B) (“In addition to the requirements of this Columbia County Zoning 

Code, all land uses and development activities must comply with all other applicable town, 

county, state, and federal regulations.”). We do not discuss this provision further. 

7

 For context we note that the county preemption ordinance is one of three conflictrelated provisions that are grouped together in one subpart of the rules governing use and 

construction of Columbia County ordinances. Each of the three provisions addresses a specific 

category of conflict. The other two provisions state:

(continued)
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BOA that “the County board supervisors put in place [an ordinance] that say[s] if 

there’s a conflict, statutes rule.” 

¶28 We conclude that the county preemption ordinance establishes the 

following as a categorical rule, directed to anyone using or construing a Columbia 

County ordinance, including the BOA: conflicting state statutes govern in the 

event of a conflict with the ordinance that is being used or construed.

8

 

¶29 Notably, the county preemption ordinance dictates a rule of use and 

construction that appears to be mandatory: it “shall control.” Further, the 

ordinance is on its face self-executing. It does not reserve for the county board of 

supervisors, the courts, or any other person or entity the exclusive role of 

determining whether there is a conflict or, if there is, whether the conflicting 

 

(a) If the provisions of different chapters [of the code] conflict 

with each other, the provisions of each individual chapter 

shall control all issues arising out of the events and persons 

intended to be governed by that chapter.

(b) If the provisions of different sections of the same chapter [of 

the code] conflict with each other, the provision which is 

more specific in its application to the events or persons 

raising the conflict shall control over the more general 

provision.

COLUMBIA COUNTY ORD. 1-1-7 (a), (b).

Separately, we observe that the county preemption ordinance explicitly identifies state 

statutes (but not state regulations) and federal regulations (but not federal statutes). Yet whatever 

potential significance these omissions might have in other contexts, it does not matter here 

because the siting-regulations statute is a state statute.

8

 The circuit court did not rely on the county preemption ordinance. Without elaborating 

on its reasoning, the court characterized it as a “general catch-all provision.” We recognize that it 

may be a catch-all provision in the sense that it broadly applies to all county ordinances and all 

conflicting state statutes. But the court did not explain why its broad potential effects renders it 

inapplicable in this context and we cannot discern a reason.
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ordinance is unenforceable. Indeed, in granting the permit, the zoning 

administrator operated under his authority under the county ordinances to act as 

“the administrative and enforcement officer for the provisions of [the chapter of 

the ordinances governing zoning], per the general authorization under Wisconsin 

Statutes,” with a “general duty” “to interpret and administer” the county’s relevant 

ordinances. See COLUMBIA COUNTY ORD. 16-150-020(A), (B). 

¶30 Turning to the preemptive aspect of the county preemption 

ordinance, we agree with Tillman and the county parties that the only reasonable 

interpretation of the phrase “conflict with” is that it contemplates application of 

the well-established preemption doctrine in Wisconsin. See Town of Delafield v. 

Central Transp. Kriewaldt, 2020 WI 61, ¶5, 392 Wis. 2d 427, 944 N.W.2d 819 

(“state law that conflicts with federal law is ‘without effect’” (emphasis added)

(quoted source omitted)); Associated Builders & Contractors of Wis. Inc. v. City 

of Madison, 2023 WI App 59, ¶¶11-13, 409 Wis. 2d 660, 998 N.W.2d 549

(preemption is established when: “(1) the legislature has expressly withdrawn the 

local government’s authority to act; (2) the local ordinance logically conflicts with

the state legislation; (3) [the ordinance] ‘defeats the purpose of the state 

legislation’; or (4) [the ordinance] ‘violates the spirit of state legislation’”

(emphasis added) (quoted authority omitted)). This point is not disputed on 

appeal. Both SBA and Savich implicitly acknowledge that the county preemption 

ordinance calls for the application of the preemption doctrine established in 

Wisconsin law. 

¶31 We conclude that the BOA acted within its jurisdiction by applying 

the county ordinances—including the county preemption ordinance—when it 

addressed whether the state siting-regulations statute preempts the county towerseparation ordinance. We next explain why we conclude that the reasoning in 
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Ledger does not undermine the BOA’s decision to consider the preemption

doctrine, and that Ledger actually supports the BOA decision. 

¶32 Ledger reaffirms the long-standing Wisconsin rule that local zoning 

boards of appeals lack authority to ignore or invalidate ordinances that have been 

duly enacted by local lawmakers. See Ledger, 146 Wis. 2d at 262-66. In 

discussing this rule, the Ledger court drew from discussion in State ex rel. Tingley 

v. Gurda, 209 Wis. 63, 67-68, 243 N.W. 317 (1932), and Kmiec v. Town of Spider 

Lake, 60 Wis. 2d 640, 645-46, 211 N.W.2d 471 (1973). In Tingley, our supreme 

court determined that a mandamus petition was a proper vehicle to challenge the 

enforcement of a zoning ordinance, because challenging the rule through an appeal 

to the zoning board of appeals would have been unavailing, given that the board of 

appeals was not authorized to address a claim that a zoning rule was 

unconstitutional. Tingley, 209 Wis. at 67-68. The legislature did not “intend[] to 

clothe” a “mere administrative agency [of a city] with the power to repeal the 

legislative acts of the city council.” Id. Similarly, in Kmiec, the supreme court 

determined that an action for declaratory judgment was a proper vehicle to 

challenge the constitutionality of a town zoning ordinance. Kmiec, 60 Wis. 2d at

645-46. The supreme court explained that the plaintiff in Kmiec was not required 

to exhaust administrative remedies because a town zoning review board “is 

clothed with no right to repeal or declare unconstitutional zoning ordinances 

enacted by the legislative body from which it derives its existence.” Id. In 

Ledger, after reviewing these points from Tingley and Kmiec, we concluded that a 

city board of appeals lacked the authority to decline to enforce an ordinance 

“based on [the] determination that [it] was vague and arbitrary, and thus invalid.” 

Ledger, 146 Wis. 2d at 258, 266 (applying the reasoning in Tingley and Kmiec to 
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the Ledger facts, which involved the local board identifying arbitrariness as the 

ordinance defect, not “specific constitutional issues”).

¶33 Under this precedent, zoning boards of appeals are in the nature of 

local administrative agencies and therefore their authority is limited by the state 

statutes that create and define their authority. The limitation most pertinent here is 

that these boards are not generally permitted to treat ordinances enacted by county 

boards as unenforceable. See Tingley, 209 Wis. at 67-68 (“[G]enerally,” the 

“powers of review” possessed by boards of review “are limited to practical 

difficulties, or unnecessary hardship, in the way of carrying out the strict letter of 

the law.”). As summarized above, Ledger, Tingley, and Kmiec, unlike this case, 

did not involve a claim that a zoning board should treat an ordinance as invalid 

based on statutory preemption, as opposed to a challenge based on such grounds as

unconstitutionality or arbitrariness. But we assume without deciding that the 

reasoning of these cases applies equally when—in the absence of an ordinance that 

has the effect of the county preemption ordinance here—a zoning board deems a 

zoning ordinance unenforceable due to preemption by state or federal statutes.9

 

9

 Related to this assumption we make, we need not and do not reach the parties’ 

arguments on a broader issue, which current Wisconsin case law does not address. The broader 

issue would be whether Ledger generally prohibits zoning boards from declining to enforce an 

ordinance when the issue is the ordinance’s potential preemption by state or federal statutes and 

the political subdivision has not enacted an ordinance that has the effect of the county preemption 

ordinance here. For example, SBA asserts that it would open a “Pandora’s box of legal 

interpretation and disputes” “if local zoning administrators and zoning boards were permitted to 

simply apply their own interpretation of State law” to local ordinances. As explained in the text, 

we conclude that here it is sufficient that the Columbia County board of supervisors has enacted 

the preemption ordinance, and we need not address the hypothetical scenario in which it had not. 

Absent unusual circumstances, we aim to resolve appeals on “the narrowest possible grounds.” 

See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997).
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¶34 Here, the BOA did not act as if it were “clothed with” authority to 

repeal or disregard a county ordinance. Instead, the BOA was directed by the 

county preemption ordinance that it could not enforce the tower-separation 

ordinance to the extent that it conflicts with the state siting-regulations statute. 

That is, the BOA was not permitted to “‘nullify’” the county preemption 

ordinance. See Ledger, 146 Wis. 2d at 265 (favorably quoting Bearce v. Zoning 

Bd. of Appeals of Brockton, 219 N.E.2d 15, 17 (Mass. 1966), for the proposition 

that a local zoning board of appeals lacks authority to “nullify acts of the local 

legislative body which is charged ... with the adoption and amendment of zoning 

ordinances”). While none of the precedent cited by the parties addresses the 

specific factual and procedural posture here, we conclude that the BOA acted 

within its jurisdiction, which was consistent with the reasoning in Ledger.

¶35 Savich contends that Ledger “provides no qualification, no 

contingency, no exception” that would permit the BOA not to “follow an 

ordinance as written.” But we have just explained why the county preemption 

ordinance required the BOA to treat the tower-separation ordinance as

unenforceable to the extent that it conflicts with a state statute. 

¶36 SBA and Savich both suggest that, short of a declaration by a court 

that an ordinance is preempted, only the county board of supervisors could limit 

the reach of the tower-separation ordinance, by revising or withdrawing it. Stated 

in terms of certiorari review analysis, the argument would be that, regardless of 

the county preemption ordinance, the BOA did not keep within its jurisdiction 

because the BOA could not entertain Tillman’s preemption argument in the 

absence of a prior court declaration of preemption. In a related vein, Savich 

argues at length that a declaratory judgment action would have been a better 
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vehicle than this certiorari review action to determine whether the towerseparation ordinance is unenforceable based on preemption. 

¶37 SBA and Savich attempt to support these arguments by making two 

sets of related assertions. One is that the county and the county board of 

supervisors would necessarily have been parties to an action for declaratory relief. 

See WIS. STAT. § 806.04(11) (stating in pertinent part that, in an action for 

declaratory relief, “all persons shall be made parties who have or claim any 

interest which would be affected by the declaration” sought). Savich also takes 

the position that discovery would have been conducted in a declaratory judgment 

action. But assuming without deciding that in a declaratory judgment action the 

county and its board of supervisors would have been parties and also that 

discovery would have been permitted, this addresses only aspects of what would 

have happened in such an action. SBA and Savich do not provide a satisfactory 

answer to the following question: Why, on the facts here, were the Tillman tower 

proponents required to obtain a declaration of preemption by a court before the 

BOA could apply the county preemption ordinance to deem the tower-separation 

ordinance unenforceable? They merely suggest an alternative route to litigate this 

permit dispute, but they do not show that this was the required route. 

¶38 The other related assertion made by SBA and Savich is that 

participation by the county and the county board of supervisors in an action for 

declaratory relief would help inform proper decisions on the preemption issue by 

the circuit court and any appellate court. Again, this simply evokes an alternative 

litigation route, without explaining why it was obligatory here. In addition, SBA 

and Savich do not suggest what type of evidence or argument that the county or 

the county board uniquely had to offer that could have made a difference to a court 

in reaching the correct result on preemption, which presents a legal issue. Savich 
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argues that the one-half mile distance established in the tower-separation 

ordinance might have a sound basis in science or public policy, but such 

arguments are beside the point in preemption analysis. The merits of the 

ordinance are not at issue, only whether it is preempted by state statute.

¶39 In making these arguments, SBA and Savich rely heavily on HearstArgyle Stations, Inc. v. Board of Zoning Appeals of Milwaukee, 2003 WI App 

48, 260 Wis. 2d 494, 659 N.W.2d 424. As we now explain, we conclude that the 

discussion in Hearst-Argyle Stations that they cite does not apply here, because 

that opinion does not address a situation in which the local legislature has enacted 

a provision like the county preemption ordinance. 

¶40 In a brief reference, this court in Hearst-Argyle Stations determined 

that a party challenging a city board of zoning appeals decision in a certiorari 

review action could not argue in that action that city zoning ordinances were 

preempted by a federal agency directive, but instead the party had to present the 

preemption argument to a court in an action for declaratory relief. See id., ¶32

(citing Kaiser v. City of Mauston, 99 Wis. 2d 345, 355, 299 N.W.2d 259 (Ct. App. 

1980), overruled on other grounds, DNR v. City of Waukesha, 184 Wis. 2d 178, 

191, 515 N.W.2d 888 (1994)).

10

 Unlike in the Ledger-Tingley-Kmiec line of 

 

10

 While it does not matter to our analysis for reasons stated in the text, we observe that 

there may be reasons to question this statement in Hearst-Argyle Stations, Inc. v. Board of 

Zoning Appeals of Milwaukee, 2003 WI App 48, 260 Wis. 2d 494, 659 N.W.2d 424. See Kaiser 

v. City of Mauston, 99 Wis. 2d 345, 354-55 & n.15, 299 N.W.2d 259 (Ct. App. 1980) (rejecting 

argument that certiorari was “the exclusive method of reviewing the ordinances or resolutions of 

a local legislative body” and stating that a “declaratory judgment has long been held to be a

proper method of challenging the validity of an ordinance” (emphasis added)), overruled on other 

grounds by DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994); State ex 

rel. Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, ¶¶12-14, 36-40, 269 Wis. 2d 

549, 676 N.W.2d 401 (analyzing, on certiorari review, whether county ordinance standard for 

zoning variances “logically conflict[ed]” with statutory grant of discretion to local boards of 

adjustment).
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opinions, in Hearst-Argyle Stations the issue was invalidation of an ordinance 

based on preemption. But notably for current purposes, this court in HearstArgyle Stations did not indicate whether the city in Hearst-Argyle Stations had an 

ordinance equivalent to the county preemption ordinance here. We assume 

without deciding that Hearst-Argyle Stations should be interpreted to stand for a 

general rule—seemingly in line with Ledger’s recognition of the limited authority 

of local boards of zoning appeals—that, in the absence of a provision resembling 

the county preemption ordinance, such boards are limited to addressing claims that 

local ordinances are preempted by state or federal laws only after there has been a 

ruling by a court in a declaratory action. With that assumption, it remains that no 

statement in Hearst-Argyle Stations contradicts the proposition that in the 

circumstances here, given the county preemption ordinance, there was no need for 

the tower permit applicants, the zoning administrator in Columbia County, or the 

BOA to await the results of a declaratory judgment action before addressing the 

preemption issue.

¶41 In sum on this issue, we conclude that SBA and Savich fail to show 

that the BOA did not keep within its jurisdiction when it addressed the preemption 

issue under the Ledger rule and in the absence of a court’s declaration that 

preemption applies.

11

 

 

11

 Given this conclusion, we need not and do not reach the alternative arguments by 

Tillman and the county parties that it would have been impractical, or perhaps even impossible, 

for the Department or the BOA to seek declaratory relief before or after the BOA was called on to 

address the validity of the permit in the appeals brought by SBA and Savich. 
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II. WHETHER THE BOA CORRECTLY APPLIED 

PREEMPTION 

¶42 The parties dispute whether the BOA proceeded on a correct theory 

of law when it determined that the state siting-regulations statute preempts the 

county tower-separation ordinance. Preemption presents an issue of law that we 

review de novo. Central Transp. Kriewaldt, 392 Wis. 2d 427, ¶4. We first

summarize basic features of the statute and the county ordinances and then explain 

why we conclude that one provision in the state statute preempts the county towerseparation ordinance.

A. State siting-regulations statute pertinent to preemption

¶43 In 2013 the state legislature “created WIS. STAT. § 66.0404, which 

requires [political subdivisions] to use statewide standards for the siting and 

construction of” towers. Eco-Site, LLC v. Town of Cedarburg, 2019 WI App 42, 

¶11, 388 Wis. 2d 375, 933 N.W.2d 179; 2013 Wis. Act 20, § 1269I. The state 

siting-regulations statute preempts some, but not all, local control in this area, by 

providing that, “subject to the statute,” counties, towns, and villages “may enact 

zoning ordinances ‘to regulate any ... siting and construction’” of new towers and 

telecommunications equipment. Eco-Site, 388 Wis. 2d 375, ¶11 (quoting 

§ 66.0404(2)(a)1.). If a political subdivision enacts such an ordinance after July 2, 

2013, as Columbia County did here, the ordinance is “[s]ubject to the provisions 

and limitations” of the state siting-regulations statute, § 66.0404(2)(a), and the 

county may regulate the “siting and construction of a new” tower and 

telecommunications equipment “only as provided in” the statute, § 66.0404(2)(h). 

¶44 The state siting-regulations statute distinguishes between those 

applications for permits to collocate telecommunications equipment on an existing 
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tower and those applications for permits to site and construct new towers. See, 

e.g., WIS. STAT. § 66.0404(1)(d)-(f), (L), (r); (2)(a). Most pertinent here are 

provisions in the statute addressing applications seeking permission to site and 

construct new towers.

¶45 The statute also dictates procedures that must be followed in 

connection with permit applications. If a political subdivision chooses to regulate 

tower siting and construction plans, “the regulation shall prescribe the application 

process which a person must complete” in that political subdivision, following the 

process set forth in the statute. WIS. STAT. § 66.0404(2)(b).

¶46 One key feature of the mandated process is the definition of a 

“complete application” and the direction that political subdivisions “shall consider 

the application complete” if it “contains all of [that] information.” See WIS. STAT.

§ 66.0404(2)(b)-(c). Information that must be included in an application to

construct a new tower includes “a construction plan” and justifications for the 

project, to which we now turn. See id.

¶47 The justification aspect of a “complete application” involves the use 

of a “[s]earch ring,” which the statute defines as follows:

[A] shape drawn on a map to indicate the general area 

within which a [tower] should be located to meet radio 

frequency engineering requirements, taking into account 

other factors including topography and the demographics of 

the service area.

WIS. STAT. § 66.0404(1)(r). In other words, as part of the mandated process to 

complete an application, the applicant must draw on a map a wireless service 

coverage area that calls for a new tower which would be located inside the ring, 
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given relevant considerations of technology, features of the physical environment,

and cellular service uses and needs. 

¶48 The search ring is central to the required statement of justification 

for the project: 

If an application is to construct a new [tower], [the 

application “shall contain”] 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 [tower] 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.

WIS. STAT. § 66.0404(2)(b)6.; see also § 66.0404(2)(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 para. (b)6.”). Thus, the applicant must explain generally why the 

applicant proposes a particular site for a new tower and then supplement that 

general explanation with a sworn statement specifically addressing why 

“collocation within the applicant’s search ring”: (1) “would not result in the same 

mobile service functionality, coverage, and capacity”; (2) “is technically 

infeasible;” or (3) “is economically burdensome to the mobile service provider.” 

This set of requirements manifests a choice for collocation in lieu of tower 

construction, toward the policy goal of limiting unnecessary construction of new 

towers.

¶49 We pause to note that, while the application process dictated by the 

statute cannot be properly understood without a familiarity with the search ring

concept, there is no direct connection between a search ring and what we explain 
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below are the circles of prohibition created by the Columbia County towerseparation ordinance. The search ring is an area, of whatever shape, that must be 

defined in each application for a new tower. In contrast, a circle of prohibition is 

what we call the one-half mile radius that extends in all directions from every 

existing tower by operation of the tower-separation ordinance. 

¶50 Bearing in mind that clarification and the general nature of a

“complete application,” we turn to the directions in the state siting-regulations 

statute about how political subdivisions must address applications. A political 

subdivision must accomplish all of the following within 90 days of its receipt of a 

“complete application,” or else the application is deemed approved by operation of 

law: (1) “[r]eview the application to determine whether it complies with all 

applicable aspects of the political subdivision’s building code and, subject to the 

limitations in [the siting-regulations statute], zoning ordinances”;12 (2) make a 

final decision whether to approve or disapprove the application; (3) issue a written 

decision to the applicant; and (4) if the decision is to disapprove, include in the 

written decision “substantial evidence” in support of that decision. WIS. STAT.

§ 66.0404(2)(d).

¶51 In addition to defining what a “complete application” consists of and 

how it is reviewed by political subdivisions generally, the state siting-regulations 

statute prohibits political subdivisions from taking specific actions in regulating 

towers and telecommunications equipment. See WIS. STAT. § 66.0404(4). The 

 

12

 No party draws our attention to any provision in the Columbia County building code 

that is pertinent here. 
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parties discuss three of the specific limitations in subpart (4), namely, those 

providing that political subdivisions “may not do any of the following”:

(c) Enact an ordinance prohibiting the placement of 

a [tower] in particular locations within the political 

subdivision.

....

(p) Disapprove an application based on an 

assessment by the political subdivision of the suitability of 

other locations for conducting the activity.

....

(r) Impose a setback or fall zone requirement for a 

[tower] that is different from a requirement that is imposed 

on other types of commercial structures.

Sec. 66.0404(4). As discussed in more detail below, we consider only one of these 

limitations to be dispositive, the first in order. That is, we conclude that subpart 

(4)(c) preempts the tower-separation ordinance.

B. Columbia County Ordinances Pertinent to Preemption

¶52 Chapter 16 of the Columbia County ordinances is the county’s 

zoning code. The county board incorporated into the zoning code COLUMBIA 

COUNTY ORD. 16-125-220, “Mobile and Radio Broadcast Services,” with the

general purpose to “regulate by zoning permit ... the siting and construction of 

any new” tower and telecommunications equipment. ORD. 16-125-220(A) 

(statement of purpose and intent).

13 Adopting this ordinance is consistent with one

 

13

 The ordinance also states that it is intended to accomplish objectives that include 

“[m]inimiz[ing] adverse effects of” towers and telecommunications equipment; and 

“[m]aintain[ing] and ensur[ing]” “a non-discriminatory, competitive[,] and broad range of mobile 

services and high quality mobile service infrastructure consistent with the Federal 

Telecommunications Act of 1996” that is supportive of first responder networks. COLUMBIA 

COUNTY ORD. 16-125-220(A) (statement of purpose and intent). 

(continued)
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requirement in the state siting-regulations statute that we have already referenced: 

political subdivisions electing to regulate new tower siting and construction must 

expressly create a process following the state-mandated procedures and standards. 

See WIS. STAT. § 66.0404(2)(b).

¶53 COLUMBIA COUNTY ORD. 16-125-220 tracks in many respects the 

state siting-regulations statute, including incorporating aspects of the statute. See, 

e.g., ORD. 16-125-220(B)(1) (incorporating “[a]ll definitions contained in WIS.

STAT. § 66.0404(1)”). Notably, the county ordinance includes a verbatim 

repetition of the sworn-justification provision in the statute. Compare ORD. 16-

125-220(D)(2)6. with § 66.0404(2)(b)6. 

¶54 In contrast, however, the state siting-regulations statute contains no 

analog to the county tower-separation ordinance. The tower-separation ordinance

states that, with two exceptions not pertinent to this case, towers “shall be 

separated [from one another] by a minimum of 2640 feet.” COLUMBIA COUNTY 

ORD. 16-125-220(H)(6). 

C. Preemption standards

¶55 It is a “bedrock principle” in Wisconsin “that political subdivisions 

retain their ability to govern in the absence of state legislation.” Adams v. State 

Livestock Facilities Siting Review Bd., 2012 WI 85, ¶29, 342 Wis. 2d 444, 820 

N.W.2d 404. “However, the legislature may, on issues of statewide concern, 

prohibit political subdivisions from enacting ordinances, or invalidate ordinances 

 

No party argues that the Federal Telecommunications Act is pertinent to any issue in 

these appeals and cross-appeal.
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already promulgated.” Id. When political subdivisions adopt ordinances that 

address local issues involving matters of statewide concern “‘concomitantly’” with 

the state, local authority “‘is limited to ordinances that complement rather than 

conflict with the state legislation.’” Id., ¶32 (quoted sources omitted). SBA and 

Savich do not dispute that the preemption issue here presents a topic of statewide 

concern. 

¶56 Thus, despite the broad grants of power to political subdivisions, 

state legislative enactments may limit the operation of local ordinances when there 

are overlapping state and local concerns, so long as any of the following applies: 

(1) the legislature expressly withdraws the political subdivision’s authority to act; 

(2) the local ordinance logically conflicts with the state legislation; (3) the 

ordinance “defeats the purpose of the state legislation”; or (4) the ordinance 

“violates the spirit of state legislation.” Associated Builders & Contractors, 409

Wis. 2d 660, ¶¶11-13. Our supreme court has referred to these as four “tests,” 

each of which can independently establish that the state has “withdraw[n] the 

power of the municipality to act.” Anchor Sav. & Loan Ass’n v. Equal 

Opportunities Comm’n, 120 Wis. 2d 391, 397, 355 N.W.2d 234 (1984).

D. Prohibition on enacting ordinances prohibiting tower placements

“in particular locations within the political subdivision”

¶57 We agree with Tillman and the county parties that the towerseparation ordinance, at a minimum, logically conflicts with WIS. STAT.

§ 66.0404(4)(c), which bars political subdivisions from enacting an ordinance that 

prohibits the placement of a tower in “particular locations within the political 

subdivision.” This application of the unambiguous terms of subpart (4)(c) is 

sufficient to resolve the preemption issue and we do not take up alternative 

arguments for preemption discussed by the parties. See State v. Castillo, 213 
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Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (appellate courts generally aim to resolve 

appeals on “narrowest possible grounds”). This includes arguments by the 

Tillman tower proponents that multiple provisions in the state siting-regulations 

statute, when considered together, have a combined preemptive effect. 

¶58 As a threshold issue, SBA argues that the Tillman tower proponents 

cannot rely on WIS. STAT. § 66.0404(4)(c) as a basis for preemption, because the 

BOA did not explicitly address subpart (4)(c) in its decision. In its written 

decision, the BOA stated its conclusion in favor of preemption, citing generally to 

§ 66.0404, but it did not explain the reasoning for that conclusion. A county 

zoning and sanitary specialist testified to the BOA that subpart (4)(c) provided a 

basis for preemption. 

¶59 We reject SBA’s threshold argument because SBA and Savich had 

an opportunity to try to persuade the BOA that WIS. STAT. § 66.0404(4)(c) is not a 

proper basis for preemption. Further, we now review de novo the legal issue of 

whether preemption applies in this certiorari review action, and all parties have 

had a chance to address this issue on appeal. See Moreschi v. Village of Williams 

Bay, 2020 WI 95, ¶14, 395 Wis. 2d 55, 953 N.W.2d 318 (reviewing de novo 

whether local zoning board violated due process rights of plaintiff in certiorari 

review action). SBA does not contend that additional facts needed to be 

developed for a proper resolution of this legal issue. It would be pointless for us 

to remand this case to the BOA for it to consider a fully briefed legal issue that 

requires no further factual development. 

¶60 Moving to the merits on preemption, the issue is whether the towerseparation ordinance is “an ordinance prohibiting the placement of a [tower] in 

particular locations within” the county. The parties dispute the meaning of 
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“particular locations.” Tillman and the county parties argue that each one-half 

mile radius that extends in all directions from an existing tower site at the time of 

each application creates “particular locations” where new towers are prohibited, 

and that these locations can be readily identified on a map at application time. 

SBA and Savich, by contrast, primarily argue that “particular locations” means 

something narrower, that it refers only to locations that are identified by street 

addresses or other property designations or descriptions that identify spots or areas 

on the county map that are fixed in a virtually permanent way. We now explain 

why we agree with Tillman and the county parties.

¶61 The tower-separation ordinance logically conflicts with the 

unambiguous terms of WIS. STAT. § 66.0404(4)(c), because the tower-separation 

ordinance prohibits placement of a new tower at any of the “particular locations”

within Columbia County that are described by the areas of circles defined by the 

one-half mile radiuses extending in all directions from each existing tower at the 

time of the application for a new tower. See § 66.0404(4)(c); Anchor, 120 

Wis. 2d at 397 (local ordinance nullified when it “logically conflicts with the state 

legislation”). Put slightly differently, the area of each circle within the county that 

is described by a one-mile-diameter line segment that bisects the site of an existing 

tower creates a blanket prohibition covering “particular locations within” the 

county, without regard for zoning designations or any other relevant factor that 

might weigh in favor of siting a new tower. New towers are prohibited at any spot 

in the entire area of each of these circles and this prohibition is unqualified as to 

each circle. Therefore, as a direct consequence of the operation of the ordinance,

there is a logical conflict with subpart (4)(c). We see no room for an argument 

that the tower-separation ordinance could somehow be interpreted narrowly to 

avoid a logical conflict with subpart (4)(c). 
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¶62 SBA and Savich argue that the tower-separation ordinance does not 

prohibit siting towers at “particular locations” in the county for purposes of WIS.

STAT. § 66.0404(4)(c) because the phrase “particular locations within the political 

subdivision” must refer exclusively to locations that are individually identified in 

the text of an ordinance, such as by street addresses or other property designations 

or descriptions that identify forever-fixed spots or areas on the county map. Under 

their interpretation, the tower-separation ordinance is not preempted because it 

does not call out any such named or identified spot or area, but instead it prohibits 

the placement of towers merely as an effect of applying the one-half mile distance 

to the locations of existing towers. In sum, they argue that, because the areas

defined by fixed distances surrounding existing towers are not location names

explicitly called out in the tower-separation ordinance, the tower-separation 

ordinance is not preempted by subpart (4)(c). 

¶63 SBA and Savich make two observations in support of this argument. 

First, the locations of existing towers are subject to change every time a new tower 

is constructed or an existing tower is moved or taken down. Second, Savich in 

particular notes that the locations of existing towers are chosen by private actors, 

not by county officials or by operation of the tower-separation ordinance. Savich 

in particular further suggests that this purpose is to prevent, or at least help detect, 

bribes of local officials or other improper influences to favor or disfavor the 

owners or neighbors of identified spots or areas. 

¶64 As we explain below in more detail, these arguments fail on several 

levels. SBA and Savich do not ground their more limited interpretation of WIS.

STAT. § 66.0404(4)(c) on the meaning of the specific phrase “particular locations”

or more generally on the text of subpart (4)(c) as a whole, in the special context of 

preemption analysis. In that context, local rules can be preempted by the “logic,” 
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“purpose,” or “spirit” of statutory language. And, closely related, they fail to 

support their surprising premise that an ordinance could be subject to preemption 

only when the ordinance uses terms that closely match the terms of the preempting 

statute (i.e., the ordinance here speaks in terms of a minimum distance between 

towers, while the statute speaks of “particular locations”). To the contrary, it is 

enough that the unambiguous application of the ordinance, based on readily 

ascertainable facts, has the precise effect that is prohibited by statute. 

¶65 As the only direct support for their interpretation of “particular 

locations within the political subdivision” based on case law, SBA and Savich 

argue that this court in Eco-Site interpreted WIS. STAT. § 66.0404(4)(c) in a 

manner that precludes its application here. We disagree.

¶66 The context in Eco-Site differs from the context here. Eco-Site

involved an application for a conditional use permit to construct a new tower,

which called for the town to apply an ordinance under which the town assessed the 

compatibility of the proposed tower with the land uses and property values of

adjacent land. See Eco-Site, 388 Wis. 2d 375, ¶¶14-17. In contrast, the TillmanAT&T application was for a permitted use under the applicable zoning designation 

in the Columbia County zoning code. See COLUMBIA COUNTY ORD. 16-125-

220(A) (“The purpose of this section is to regulate by zoning permit ....”). 

¶67 Turning to the specifics of Eco-Site, the town’s ordinance defined

six standards to determine the compatibility of a proposed conditional use with the 

neighboring area, calling for the application of broadly defined factors involving 

the public welfare, the impairment of enjoyment or use of neighboring land, and 

the orderly development of the area. See Eco-Site, 388 Wis. 2d 375, ¶¶14-17. 

The town denied the conditional use permit based on what the town deemed to be 
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“the considerable and foreseeable loss in value to the surrounding properties 

particularly given the rural and rustic nature of the property, and the loss of 

property sales in the area as a result of the prospect of the tower.” Id., ¶6. The 

town further determined in part that the tower would be detrimental the public 

health, safety, and general welfare of area residents. Id. In other words, the 

town’s ordinance did not identify particular locations where towers are prohibited, 

but instead it called for a broad inquiry into compatibility of the proposed tower 

with adjacent land uses. See id., ¶19 (stating that in Wisconsin zoning law, 

conditional uses are those uses determined by the local legislature to be 

compatible with other uses in the area, and a proposed conditional use is not 

necessarily deemed consistent with the public interest, nor is it equivalent to a use 

as of right).14 

 

14

 Our supreme court has explained differences between permitted uses and conditional 

use permits:

While a permitted use is as of right, a conditional use does not 

provide that certainty with respect to land use. Conditional uses 

are for those particular uses that a community recognizes as 

desirable or necessary but which the community will sanction 

only in a controlled manner.

A conditional use permit allows a property owner “to put 

his property to a use which the ordinance expressly permits when 

certain conditions [or standards] have been met.” The degree of 

specificity of these standards may vary from ordinance to 

ordinance.

Town of Rhine v. Bizzell, 2008 WI 76, ¶¶20-21, 311 Wis. 2d 1, 751 N.W.2d 780 (quoted 

authority omitted, footnote omitted). As we note in the text, the town ordinance at issue in EcoSite, LLC v. Town of Cedarburg, 2019 WI App 42, 388 Wis. 2d 375, 933 N.W.2d 179, was 

comprehensive in calling for considerations of compatibility and potential diminution in property 

values. 
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¶68 With that background, in Eco-Site, this court determined that there 

was substantial evidence to support the determination that the proposed tower was 

not compatible with the “uses, values[,] and enjoyment of other Town property in 

the neighborhood for purposes already permitted.” Eco-Site, 388 Wis. 2d 375, 

¶¶1, 14, 24-27. Most pertinent here, this court also rejected an argument based on 

WIS. STAT. § 66.0404(4)(c). In challenging the denial of the conditional use 

permit, the applicants argued in part that the town ordinance that set standards for 

conditional uses created a particular location where the proposed tower could not 

be constructed and was therefore preempted by subpart (4)(c). Eco-Site, 388 

Wis. 2d 375, ¶18. In the single paragraph of Eco-Site now highlighted by SBA 

and Savich, we stated that the tower proponent failed to show preemption under 

subpart (4)(c) because, we concluded, the town’s ordinance setting forth the 

compatibility conditions did not “identify any specific spot or area within the 

Town where such structures are prohibited.” Id. In other words, we concluded 

that the town’s incompatibility determination involving consideration of broad 

categories of public welfare, impairment of enjoyment or use, and orderly 

development of the area did not represent the application of a rule that any 

particular spot or area was off limits to towers. Id., ¶¶16-19 (explaining that the 

conditional use ordinance at issue “permit[ted] towers, if the conditions are met”).

¶69 In contrast here, for reasons we have explained, the tower-separation 

ordinance identifies specific areas where no permit for the permitted use of a new 

tower may be granted: throughout each of the readily identifiable circles of

prohibition. For these reasons, we do not interpret Eco-Site, as SBA and Savich 

do, to stand for the proposition that WIS. STAT. § 66.0404 (4)(c) preempts only 

ordinances that explicitly call out fixed spots on a map. For example, this court in 

Eco-Site referred not only to “spot[s]” but also to “area[s],” and as we have 
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explained in this case, the circles of prohibition are unambiguously created by the 

tower-separation ordinance.

15

 See Eco-Site, 388 Wis. 2d 375, ¶18. The logical 

conflict here is complete.

¶70 As noted, SBA makes a permanency argument. It observes that, “if 

an existing tower site is removed,” then the tower-separation ordinance “no longer 

applies” to the locations within the one-half mile radius of the former site 

(assuming that there are no other existing towers within one-half mile). Based on 

this dynamic, SBA may mean to argue that the tower-separation ordinance does 

not prohibit towers from being constructed at “particular locations” in the county

because the prohibitions are not permanent. Of course it is true that all towers

have a time line of use at a given spot: the date of construction at that spot, 

perhaps some modification over time, and then, sooner or later, the date of being 

moved or dismantled and hauled away. But there are two problems with SBA’s 

argument. First, WIS. STAT. § 66.0404 (4)(c) does not contain any qualification to 

the effect that prohibitions of towers at particular locations are allowed if the

prohibitions are of sufficiently short duration. SBA in effect attempts to add such 

language to subpart (4)(c). Second, at any given time, existing towers in the 

political subdivision will be readily identifiable in fixed spots. SBA and Savich do 

not suggest a reason for the legislature to have anticipated confusion or reasonable 

mistakes regarding the locations of existing towers within a political subdivision at 

 

15

 Separately, the court in Eco-Site rejected an argument by the tower proponents that, 

because negative perceptions of aesthetics contributed to the town’s denial of the conditional use 

permit for the new tower, application of the town ordinance was preempted by WIS. STAT.

§ 66.0404(4)(g), which is a specific limitation that an application may not be disapproved “based 

solely on aesthetic concerns.” Eco-Site, 388 Wis. 2d 375, ¶¶20-23. “[S]olely” in this context 

means “only,” and the town relied on concerns in addition to those about “visual blight.” Id., 

¶23. 
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any given time. Nor do they suggest a reason for the legislature to have 

anticipated that the existence of towers at particular locations would be so 

transitory that the tower-separation ordinance is a moving target that could not be 

subject to preemption under subpart (4)(c). 

¶71 Further, SBA and Savich may mean to suggest that the fact that 

these circles of prohibition occupy relatively large areas—each with an 

approximate circumference of 3.14 miles and an area of .79 square miles—renders

them too vast or amorphous to constitute “particular locations.” We reject any 

such argument. If one assumes that a political subdivision were to enact a towerseparation ordinance shorter than one-half mile, then this would proportionally 

reduce the number of particular prohibited locations. If the separation distance 

were longer, the number would proportionally rise.

16

 No matter the separation 

length that may be specified in a tower-separation ordinance, it necessarily creates

a full 360 degrees of prohibition and thus describes “particular locations” where 

new towers may not be constructed.

¶72 To the extent that Savich’s particular private-enterprise point is 

meant as an argument separate from those we have already addressed, it is easily 

rejected. Savich fails to explain the significance to the preemption issue of the 

fact that private interests propose the sites for new towers within a political 

subdivision and then construct them where they are permitted. See State v. Pettit, 

171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we need not address the 

 

16

 Indeed, at least under the reasoning offered by SBA and Savich, if the county board 

enacted a tower-separation ordinance of 16 miles—which would create a circle-of-prohibition of 

796 square miles, larger than the entire area of Columbia County—this would not logically 

conflict with WIS. STAT. § 66.0404(4)(c).
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merits of inadequately briefed issues). We do not discern a starting point for a

preemption-related argument. 

¶73 As part of Savich’s proposed narrower interpretation of WIS. STAT.

§ 66.0404(4)(c), one concept that he may aim to convey about the text of the 

statute is the following. In order for preemption to apply here, the phrase 

“particular locations” would have to be qualified with additional words such as, 

“including all locations described by a fixed distance from an existing tower,” or 

“which have the effect of creating areas.” On a related point, as we have 

explained, SBA and Savich also suggest that, for subpart (4)(c) to have preemptive 

effect on an ordinance, the ordinance would have to identify locations that are 

identified by a forever-fixed spot or area on the county map.

¶74 The problem with these arguments is that the legislature has chosen 

to use a sweeping phrase, “particular locations.” The only qualification is that the 

“particular locations” must be found “within the political subdivision.” The 

legislature did not use the phrase “particular location,” singular, which in itself 

might have provided at least a first step in support of the interpretation offered by 

SBA and Savich, by signaling one spot and one spot only. Instead, the legislature 

used the plural form, which preempts every ordinance that categorically creates

one or more areas of complete prohibition, regardless of the total number of 

individual spots within those areas at which individual towers are prohibited. See

Eco-Site, 388 Wis. 2d 375, ¶18 (“area”). Further, if the legislative goal had been 

to limit the reach of WIS. STAT. § 66.0404(4)(c) to locations that are identified by 

street addresses or other property designations or descriptions that create foreverfixed spots or areas on the county map, the legislature could easily have used 

terms to convey that.
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¶75 Savich cites an Illinois statute that prohibits political subdivisions 

from limiting the placement of towers by setting “minimum horizontal separation 

distances.” See 50 ILCS 840/15(d)(4). This is one interesting alternative 

formulation to WIS. STAT. § 66.0404(4)(c). But Savich fails to show how the 

existence of the Illinois statute demonstrates that a more limited preemptive effect 

was intended in subpart (4)(c). Savich correctly notes that the Wisconsin 

legislature has not explicitly listed a tower-separation distance requirement as one 

of the prohibited activities listed in § 66.0404(4). But he fails to support his 

further assertion that this was an intentional decision to allow local governments to 

create dispositive tower-separation requirements. 

¶76 Savich argues that the prohibited activities listed in WIS. STAT.

§ 66.0404(4) constitute an exhaustive list, not merely an illustrative one. 

Whatever its potential merits, this argument is of no value to Savich because we 

conclude that the unambiguous terms of § 66.0404(4)(c) preempt the towerseparation ordinance. 

¶77 SBA submits that some Wisconsin counties other than Columbia 

have adopted provisions matching or similar to the tower-separation ordinance. 

But SBA fails to develop a cognizable preemption argument based on that 

proposition. See Pettit, 171 Wis. 2d at 646.

17

 

 

17

 SBA relies on a memorandum by Wisconsin Legislative Council staff, dating from 

around the time of the enactment of the siting-regulations statute, that contains references to 

prohibited zoning districts. We do not address this source because we have explained why the 

meaning of WIS. STAT. § 66.0404(4)(c) is unambiguous for current purposes. See State ex rel. 

Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. We 

further note that SBA does not independently develop a statutory interpretation argument based 

on the concept of prohibited zoning districts; that is, SBA does not provide authority or 

background to support the concept suggested by the memo.
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¶78 In sum on this issue, we conclude that the tower-separation 

ordinance logically conflicts with the state statute providing that political 

subdivisions may not “enact an ordinance prohibiting the placement of” a tower 

“in particular locations within the political subdivision,” and, therefore, the BOA 

properly deemed the tower-separation ordinance to be preempted and accordingly

unenforceable. See WIS. STAT. § 66.0404(4)(c).

III. CROSS-APPEAL

¶79 Savich argues in the cross-appeal that, before the circuit court issued 

the order reversing the BOA’s permit decision that is challenged in the appeals,

the circuit court was obligated to give him additional opportunities to challenge 

the permit, and that the court was not able to make a proper substantial evidence 

ruling because the court deprived Savich of these opportunities. More 

specifically, Savich argues that the court: “erroneously exercised its discretion 

when it denied Savich’s motion to supplement the record with discovery upon a 

prima facie showing” of “false swearing” by Michael Bieniek in the affidavit that 

was submitted with the Tillman-AT&T application; “made a manifest error of law 

when it denied Savich the right to file a certiorari brief, or to supplem[e]nt or 

correct the certiorari record”; and “erred when it did not adjudicate the allegations 

in Savich’s complaint.” 
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¶80 We first address and reject a threshold argument made by Tillman 

(and adopted by the county departments) that we lack jurisdiction over the crossappeal or that Savich lacks standing to bring it.

18

¶81 A respondent in an appeal, such as Savich here, may file a crossappeal to seek “modification of the judgment or order appealed from or of another 

judgment or order entered in the same action or proceeding.” See WIS. STAT.

§ 809.10(2)(b). In this cross-appeal, Savich seeks modification of “another 

judgment or order entered in the same action or proceeding,” namely, decisions by 

the circuit court adverse to Savich in addressing the substantial evidence issue. In 

other words, Savich’s cross-appeal does not seek to enlarge or otherwise modify 

the orders that are the subject of the consolidated appeals, nor does he offer an 

alternative basis to affirm those orders based on the record that existed at the time 

the court issued them. Instead, the cross-appeal challenges prior nonfinal orders

of the circuit court, which Savich contends caused the court to operate from a 

faulty record that Savich contends he should have been allowed to enhance in the 

circuit court through discovery and additional argument. If he were permitted to 

do this, he argues, this would create a valid basis for the circuit court to reverse the 

BOA’s permit decision and to reject the permit, regardless of our conclusions in 

the appeal about Ledger and preemption.

¶82 Tillman accurately points out that only persons who are aggrieved 

by judgments or orders may challenge those judgments or orders on appeal. See

 

18

 Before briefing in the consolidated appeals, Tillman moved this court to dismiss 

Savich’s cross-appeal on the same ground. In a September 18, 2023 order of this court, we 

denied the motion, reserving the issue for this opinion so that we would have the benefit of full 

briefing.
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Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217-18, 418 N.W.2d 14 (Ct. 

App. 1987) (“A person is aggrieved if the judgment bears directly and injuriously”

on the person’s interests, meaning that “the person must be adversely affected in 

some appreciable manner.”). Based on this rule, Tillman argues, all of Savich’s 

arguments in this case had to be contained in his respondent’s brief in the appeal, 

because they amount to alternative arguments in favor of the order challenged in 

the appeal. See McLellan v. Charly, 2008 WI App 126, ¶18 n.2, 313 Wis. 2d 623, 

758 N.W.2d 94 (there is no need for a cross-appeal by an appeal-respondent who 

seeks only to defend, and to in no way change, the order or judgment that is 

challenged in the appeal; arguments that the respondent is entitled to the same 

relief ordered by the circuit court but based on an alternative ground belong in the 

respondent’s brief in the appeal). 

¶83 Tillman’s argument fails to recognize that cross-appellants (like 

appellants generally) are not required to be aggrieved by the final order issued by 

the circuit court under WIS. STAT. § 809.10(4). See Auric v. Continental Cas. 

Co., 111 Wis. 2d 507, 516, 331 N.W.2d 325 (1983) (“It is clear that orders 

challenged on cross-appeal need not be final orders.”). For example, a party could 

fully prevail on the merits in a case but nonetheless properly challenge an adverse 

decision resulting from earlier rulings of the circuit court, such as those addressing 

monetary discovery sanctions. Bringing an appeal as a matter of right requires 

that there be a final order or judgment, WIS. STAT. § 808.03(1), but an appeal from 

such an order or judgment brings up for potential challenge on appeal all prior 

nonfinal orders, § 809.10(4).

¶84 With this point in mind, Tillman’s argument also fails to recognize 

that Savich’s cross-appeal appears to seek review of alleged circuit court errors 

that we are required to resolve only in the event of our reversal of the circuit 
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court’s orders that are challenged in the consolidated appeals. It is true that, in the

final orders that are challenged in the appeals, Savich did obtain from the circuit 

court precisely the relief that he sought in the circuit court proceedings—relief in 

the form of an order to revoke the permit—and as a general rule Savich could not 

have challenged those orders as they were issued by the circuit court, given that he 

was in no way aggrieved by them. But Savich’s cross-appeal is, in effect,

defensive. We are required to address Savich’s cross-appeal challenge to the 

earlier circuit court decisions only if we decide (as we do today) to reverse the 

circuit court ruling regarding the BOA’s permit decision as that ruling was issued 

by the circuit court. 

¶85 Further, the cross-appeal raises issues that are potentially material to 

the order that the circuit court will enter in light of our opinion today. Put 

differently, with our decisions today in the appeal, the order regarding the BOA’s

permit decision that we would require the circuit court to enter (without our 

considering the merits of the cross-appeal) would be adverse to Savich’s interests,

and Savich claims that the cross-appeal provides grounds to reverse prior rulings 

of the circuit court that would change that result. For all these reasons, Savich’s 

challenge to the prior orders of the circuit court is a proper subject for a crossappeal. Federal authorities have expressed this clearly, consistent with what is 

permitted and required under the Wisconsin rules. See 15A Charles Alan Wright, 

Arthur R. Miller, & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE

§ 3902 at 78 (1992 and 2007 Supp.) (“A party who fully prevailed in the [trial]

court may have an equally obvious justification for cross-appeal, to protect 

interests that otherwise might be adversely affected by disposition of the appeal. 

Courts readily understand this principle, and have applied it without difficulty, 

permitting the cross-appeals but deciding them only if disposition of the appeal 
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makes it appropriate.”); Hartman v. Duffey, 19 F.3d 1459, 1465 (D.C. Cir. 1994) 

(Wald, J., concurring) (noting that some cross-appeals are filed to protect 

contingent interests of a party that has prevailed in the trial court, under the theory 

that “as soon as the appellate court decides to modify the trial court’s judgment, 

that judgment may become ‘adverse’ to the cross-appellant’s interests and thus 

qualify as fair game for an appeal”). 

¶86 Nevertheless, issues raised in a cross-appeal, just like issues raised in 

an appeal, must be adequately supported. We now explain why we reject Savich’s 

cross-appeal arguments, as best we understand them. We reject any other intended 

arguments based on a lack of development. See Pettit, 171 Wis. 2d at 646. 

Denial of motion to supplement circuit court record with discovery

¶87 Savich argues that the circuit court was obligated to allow the parties 

to conduct discovery in the certiorari review proceedings to pursue his contention 

that Bieniek’s affidavit represented “false swearing.” He bases this argument on 

WIS. STAT. § 59.694(10), which applies to the certiorari review of a decision by a 

board of adjustment. That provision provides in pertinent part that, “[i]f necessary 

for the proper disposition of the matter, the [circuit] court may take evidence, or 

appoint a referee to take evidence and report findings of fact and conclusions of 

law as it directs, which shall constitute a part of the proceedings upon which the 

determination of the court shall be made.” Sec. 59.694(10). We reject Savich’s 

argument because he fails to persuade us that the circuit court should have 

considered additional evidence “necessary for the proper disposition of the 

matter.”

¶88 During the BOA proceedings, Savich, then represented by counsel, 

had a full opportunity to present his positions regarding the proposed Tillman 
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tower. Further, he presented to the BOA, in great detail, the same arguments he 

now makes about allegedly inaccurate information in the Tillman-AT&T 

application. It is entirely unclear what additional evidence, gathered at the circuit 

court stage of the proceedings, could have made a difference to the court’s 

application of certiorari review standards. See Murr v. St. Croix Cnty. Bd. of 

Adjustment, 2011 WI App 29, ¶19, 332 Wis. 2d 172, 796 N.W.2d 837 (“[I]f the 

circuit court takes evidence that is substantially the same as that taken by the 

Board, deference to the Board demands that the evidentiary hearing should be 

treated as a nullity for purposes of determining the standard of review to be 

applied to the Board’s decision.”). Savich’s argument is based on conjecture and 

speculation. 

Denying Savich “the right to file a certiorari brief” or to supplement or 

“correct the certiorari record”

¶89 As best we can discern, the focus of this argument is a letter and 

proposed order that Savich filed with the circuit court on July 21, 2023. This 

occurred after remittitur, following this court’s decision to reinstate Savich’s 

complaint in May 2023, and before the circuit court entered its July 24, 2023 order

stating that its prior order of November 30, 2022, “and the rights and remedies 

adjudicated therein, apply in full to all remaining parties in this case: Buddy J. 

Savich, SBA Structures LLC, and all Defendants.” Savich’s proposed order of 

July 21 would have set a schedule for Savich to file a motion to supplement the 

record, for him to file a “Certiorari Brief,” and for the parties to file response and 

reply briefs. 

¶90 We need not resolve whether it carried a risk of prejudice to Savich 

for the circuit court to proceed on the merits while Savich (ultimately successfully) 

appealed his dismissal from the proceedings. This is because the vague and 
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speculative assertions in Savich’s July 21, 2023 letter to the court did not support 

entry of his proposed order. His letter was premised on the merits of a brief that 

he had previously filed, but the letter did not explain why the previously filed brief 

justified the proposed order. The letter addresses legal issues that we have 

resolved against him above. It also incorrectly suggests at points that the court 

had authority to reverse the BOA based on the court’s own assessments of the 

evidence and the equities, as opposed to applying the limited certiorari review 

standards. 

Failure to “adjudicate the allegations in Savich’s complaint”

¶91 Savich’s briefing does not make clear what could remain that we 

have not already discussed regarding an alleged failure by the circuit court to 

“adjudicate the allegations in Savich’s complaint.” This appears to involve his 

reiteration of the argument that, without additional discovery in the circuit court 

proceedings, it was not possible for the circuit court to properly conduct its 

certiorari review. At a minimum, Savich’s arguments are unavailing because they 

fail to come to grips with the rule that finding facts and weighing evidence were 

tasks delegated exclusively to the BOA, not to the circuit court, absent errors by 

the BOA of the types that are properly the subject of certiorari review. See

Oneida Seven Generations, 362 Wis. 2d 290, ¶43. 

IV. WHETHER THE BOA’S DECISION IS SUPPORTED BY 

SUBSTANTIAL EVIDENCE

¶92 As alternative grounds to support affirmance of the circuit court’s 

reversal of the BOA’s decision to affirm the permit, SBA and Savich each raise 

arguments that amount to claims that the BOA lacked substantial evidence to 
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make its decision. After summarizing the applicable legal standard, we discuss the 

SBA and Savich arguments separately.

¶93 “‘Substantial evidence’ is evidence of such convincing power that 

reasonable persons could reach the same decision as” the BOA, that is, “‘credible, 

relevant and probative evidence upon which reasonable persons could rely to 

reach’” the challenged decision by the BOA. See Oneida Seven Generations 

Corp., 362 Wis. 2d 290, ¶43 (quoted authorities omitted).19 Substantial evidence 

“is less than a preponderance of the evidence,” but “‘more than a mere scintilla of 

evidence and more than conjecture and speculation.’” Id., ¶44 (quoted source 

omitted). “[T]he weight to accord the evidence lies within the discretion of the 

municipality.” Id.

¶94 “In determining whether the substantial evidence test is met, a court 

conducting a certiorari review should ‘tak[e] into account all the evidence in the 

record,’” including considering all relevant context created by the evidence. See

id., ¶45 (quoted source omitted).

¶95 Although it did so, the BOA was not required to produce a written 

decision to supplement the record created through its hearing process. See Lamar 

Cent. Outdoor, Inc. v. Board of Zoning Appeals, 2005 WI 117, ¶31, 284 Wis. 2d 

1, 700 N.W.2d 87. Further, its reasoning did not need to be expressed with the 

level of clarity that judicial opinions aim for. See id. 

 

19

 We observe that WIS. STAT. § 66.0404(2)(d)4. provides that when a political 

subdivision disapproves a permit application, it must “include with the written notification 

substantial evidence which supports the decision,” but this provision is not pertinent here because 

the Tillman-AT&T permit application was approved.
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A. SBA: Adequacy of Statement of Need

¶96 SBA makes related arguments that are not explicitly framed as

challenges based on the lack of substantial evidence, but this appears to be SBA’s 

intent. The contention is that Tillman’s submission of the statement of need 

justifying the permit, as required by COLUMBIA COUNTY ORD. 16-125-220(D)(1)6.

and WIS. STAT. § 66.0404(2)(b)6., was inadequate in several respects, and this left 

the BOA without substantial evidence to support its decision to affirm the permit. 

We now provide additional pertinent background.

¶97 One element of the Tillman-AT&T application was a four-page 

sworn statement of Tim Brenner, “Director-Network Planning” for AT&T. 

Brenner’s statements included the following. Brenner managed an AT&T 

program that identifies “economically burdensome antenna site leases” for 

AT&T’s telecommunications equipment and attempts to move such equipment to 

“lower-cost alternative antenna site lease locations to either improve or maintain 

wireless coverage.” Brenner professed to be “familiar” both with plans for the 

proposed Tillman tower and also with the existing SBA tower, which housed some 

AT&T telecommunications equipment. The proposed Tillman tower site and the 

SBA tower are in the search ring drawn by the applicants. The SBA tower was the 

only existing tower in the search ring, and having the AT&T equipment remain on 

the SBA Tower under a collocation agreement “is economically burdensome for 

AT&T and would not result in the same cost-effective operation as compared to 

what AT&T could achieve if it relocated its Wireless Facilities to the Tillman 

Tower.” Brenner’s statements were offered in support of his two primary

contentions: that continued collocation on the SBA tower would be economically 

burdensome to AT&T, and that the proposed Tillman tower would provide 

“superior mobile service functionality.” This included the assertion that “[t]here 
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are no other structures (other than the SBA Tower) located in AT&T’s search ring 

capable of accommodating its Wireless Facilities.”

¶98 In addition, the Tillman-AT&T application included a sworn

statement from Michael Bieniek, working on behalf of Tillman. This included the 

following averments: a “replacement site is required due to economically 

burdensome lease terms at the current location that have spiraled well beyond 

reasonable market rent rates”; and the proposed tower site was selected “to ensure 

that” it “would provide the County with equal or better coverage than” would be 

provided by collocation on the SBA tower. 

¶99 With that background, SBA argues that Brenner’s statement did not 

provide the BOA with a sufficient basis to establish that Brenner had 

“responsibility over the placement of” the tower. SBA bases this argument on the 

language in the state siting-regulations statute, quoted more fully above, relating to 

applications to construct a new tower instead of choosing to collocate equipment 

on an existing tower. Specifically, SBA highlights that such applications must 

“includ[e] a sworn statement from an individual who has responsibility over the 

placement of the [tower] 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.” See WIS. STAT. § 66.0404(2)(b)6. (emphasis added).

¶100 The following points offered by Tillman defeat SBA’s argument 

about Brenner’s status. First, SBA fails to show why the BOA could not 

reasonably deem an AT&T employee to be “an individual” with the relevant

“responsibility,” as those terms are used in WIS. STAT. § 66.0404(2)(b)6., given 

that Tillman and AT&T filed a joint application. Second, SBA concedes that 
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Bieniek had that “responsibility,” and SBA fails to explain why the BOA could 

not reasonably consider Bieniek’s affidavit to be sufficient for this purpose—

particularly since Bieniek adopted Brenner’s sworn statement and assertions that 

relocation of the AT&T telecommunications equipment to the proposed new tower 

is necessary due to the “economically burdensome” cost of leasing space on the

SBA tower. 

¶101 Separately, SBA in effect contends that reasonable persons in the 

position of the BOA could not reach the decision that AT&T’s failure to continue 

collocation on the SBA tower would be “economically burdensome” to it. See

WIS. STAT. § 66.0404(2)(b)6. We conclude that the BOA had before it substantial 

evidence to determine, under the standards summarized above, that “[t]he Sworn 

Statement of Tim Brenner and the oral testimony of Andrew Flowers were 

sufficient to meet the requirements set forth in Sec. 16-125-220(D)(1)6., County 

Ordinances, and WIS. STAT. § 66.0404(2)(b)6.” SBA fails to account for the 

testimony by Flowers, who identified himself as “senior real estate and 

construction manager for AT&T Mobility for Illinois and Wisconsin.” Flowers 

testified in part that AT&T’s cost of using the new Tillman tower would be “about 

two and a half times” cheaper than what it was then paying to lease space on the 

existing SBA tower, and Flowers further suggested that negotiations with SBA 

stood no chance of making the costs comparable. This matched Brenner’s sworn 

statement that, if rent increases by SBA continued at the “current rate,” the cost 

differential between leasing on the SBA tower and on the new Tillman tower 

would be $3 million over 20 years. These statements provided a sufficient basis 

for the BOA determination. 
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B. Savich: Failure to address evidence

¶102 Savich makes a series of assertions that, at best, would amount to an

argument that the BOA lacked substantial evidence because it ignored the only 

relevant evidence. The following summarizes what we discern to be Savich’s 

points, with our explanations for rejecting them. If we do not address an intended 

argument, it is because the argument lacks sufficient relevant references to the 

record and legal authority.

¶103 Savich criticizes alleged actions or omissions by the zoning 

administrator, but in this certiorari review action we review only actions or 

omissions of the BOA. 

¶104 Savich makes reference to the statement of purpose and intent 

contained in COLUMBIA COUNTY ORD. 16-125-220, “Mobile and Radio Broadcast 

Services,” quoted supra at ¶52 & n.13. But he fails to show that the purpose and 

intent statement created substantive standards. Further, Savich’s reliance on this 

text is partial at best; he fails to refer to all relevant parts of that statement. 

¶105 As Tillman points out, Savich directs us to various objections that he 

made to the permit, but he essentially ignores the contrary evidence presented to 

the BOA that could reasonably support its decision. This amounts to a request that 

we give his evidence more weight than the BOA gave it, which is not the role of a 

court on certiorari review. See Oneida Seven Generations, 362 Wis. 2d 290, ¶43. 

In particular, the BOA was not obligated to credit and also give substantial weight 

to Savich’s arguments that the new tower would meaningfully reduce the value of 

his property and limit his use and enjoyment of it. Further, as the county parties 

note, his arguments miss the target to the extent that they are based on the section 
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of the county zoning ordinance governing conditional use permits, not permitted 

uses. See supra, n.14.

20

CONCLUSION

¶106 For all of these reasons, in the appeals we reverse and remand to the 

circuit court with directions to affirm the BOA determination affirming the permit 

granted by the zoning administrator, and in the cross-appeal we affirm the circuit 

court’s challenged orders.

By the Court.—On appeals, final orders reversed and cause 

remanded with directions; on cross-appeal, non-final orders affirmed.

Recommended for publication in the official reports. 

 

20

 In criticizing arguments made by representatives of the Department to the BOA, 

Savich may also intend to argue that the BOA’s decision must be reversed because the BOA 

relied on a misunderstanding regarding the timing of the enactment of the tower-separation 

ordinance relative to enactment of all or parts of the siting-regulations statute. If this argument is 

intended, we reject it for at least the reason that Savich fails to identify record evidence showing 

that, in reaching its decision, the BOA considered the relative timing of the enactments.