Dane County Circuit Judge John C. Albert denied a request by the town of Montrose Friday for a temporary injunction to halt the construction of UW-Madison’s 403 ft. radio tower.
The decision came after over an hour of discussion between Laura Dulski, who represents the town of Montrose, and Wisconsin Assistant Attorney General Thomas Creeron, who represents UW.
Dulski was concerned about the conditional use permit granted to UW to construct the tower on land that is zoned only for agricultural use. Originally approved by Zoning Natural Resources in April 1998, the permit automatically expires within one year of issuance if construction has not begun.
“[The expiration] is a question of law,” Dulski said. “It’s a simple argument because the statute is very clear.”
Despite the statute, James Gregorius, Dane County Zoning Administrator, decided it would be inappropriate to void the permit because the university was forced to wait three years for court reviews. He granted UW the permit on Apr. 19.
However, Dulski said a temporary injunction is needed to stop construction of the tower during her appeal. Dulski said if construction is started, there is no way to guarantee the tower’s deconstruction if she wins the appeal.
Albert used a four-part test for stays pending appeal to make his decision. A stay would force the beginning of construction to wait until after the appeal had been decided. The test requires the petitioner to prove there is reasonable probability of success in winning the appeal, irreparable harm will be done if the stay is not granted, a lack of remedy of law exists and granting the stay will preserve the status quo.
Albert decided there would be no irreparable harm if construction were to start. He also said UW had the financial resources and would be willing to remove the tower if they received a court order to do so, providing a remedy of law. He said the appeal could go either way, calling Dulski’s chances of winning 50-50 at best, and went on to say that a reasonable probability of success means the appeal is more likely to be won than lost.
“I wouldn’t want to live next to the tower, and I understand the town’s desire to use the land for agricultural purposes; however, I can’t grant the stay,” Albert said in his decision.
Dulski announced plans to appeal Albert’s decision.
“My main problem with Albert’s decision is he said we had a 50-50 chance that we’d win,” Dulski said. “If we had a bias to appeal, that would be it.”
The town of Montrose wants to prevent an eyesore in the otherwise rural town, and to prevent what they see as UW bullying around a small town.
“We don’t want to end up with a big huge obsolete tower that nobody wants to take down,” Dulski told the Wisconsin State Journal. “People think of the university as a real special place, an important part of our society, our economy, and culture.”
A statement from WSUM General Manager Dave Black acknowledged their delight with the court’s decision.
“We are gratified by today’s ruling, allowing us to continue building the tower,” the statement said. “I feel especially happy for our seniors who will be graduating in May, some of whom were seniors in high school when the county decided that we met the criteria necessary to allow us to build the tower.”
A final decision is expected by early December.