Company sues commissioners for denying Wapiti cell tower

CJ Baker and Zac Taylor Powell Tribune
Posted 3/15/23

The company looking to build a 195-foot cell tower in Wapiti has filed suit against the Park County commissioners, asserting they were wrong to block the project last month.

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Company sues commissioners for denying Wapiti cell tower


POWELL — The company looking to build a 195-foot cell tower in Wapiti has filed suit against the Park County commissioners, asserting they were wrong to block the project last month. 

In a complaint filed Thursday in Wyoming’s U.S. District Court, Horizon Tower, LLC asks a federal judge to overrule the commissioners and order the county to approve the new facility. 

The filing was expected, as Horizon representatives had previously said they would go to court if they were turned down. 

Commissioners denied the Danville, California-based company’s application for a special use permit on Feb. 7 after hearing objections from many Wapiti residents. The board concluded that the proposed tower “would not be in harmony with the neighborhood” and would likely have “a significant adverse impact.” 

In last week’s complaint, however, Horizon says the commissioners’ decision “ignores the evidence presented by Horizon and provides no explanation for its findings and conclusion … other than conclusory, generalized opposition to wireless facilities.” 

The county considered the tower over a period of months, from the time Horizon submitted its application in October through a final public hearing in early February. Dozens of residents spoke out against the project as it went through the county’s review process. 

In making the motion to deny the permit on Feb. 7, commissioner and Wapiti resident Lee Livingston referenced the overwhelming opposition to the tower among area residents. 

That included opposition from the newly formed Wapiti Valley Preservation Group. 

“Approval is based on four criteria and appearance is part of that,” County Planning Director Joy Hill said. “Nobody is opposed to cell service; it’s where the structure is that’s not in harmony.” 

The proposed site, at 2944 Northfork Highway, sits just south of the highway on a roughly 30-acre parcel of private land in the middle of the valley, near Green Creek. 

In its lawsuit, Horizon says it considered a dozen alternative locations, but none were viable. The company said covenants prevent it from building the tower in the nearby Green Creek subdivision while the other property owners they approached were unwilling to have the tower built on their land. 

Horizon representatives say the tower will help cover a gap in cell service in the Wapiti area. 

Verizon is already on board as the first tenant, and the tower could also host facilities for three other carriers, such as AT&T or T-Mobile, the complaint says. 

Some residents suggested building the tower at a higher elevation, but Horizon says that would leave gaps in service. 

In sum, the company contends that the county’s decision to deny the permit effectively amounts to prohibiting wireless service and isn’t supported by substantial evidence, putting the county in violation of the Federal Communication Act. 

For their part, many of the dozens of residents who spoke at the public meetings said they didn’t have an issue with the current cell service, which comes from towers on Cedar Mountain. 

A number of residents said they accept less-than-perfect service to have unobstructed views around the valley. 

“Please keep our valley the way it is for future generations,” resident Katherine Clarkson told commissioners. 

But Horizon representative Steve Kennedy said the improvement in service would not just benefit residents, but tourists on their way to Yellowstone. 

“Whether local residents like it or don’t like it, there’s a need,” he said. “There’s a significant gap in service.” 

In its suit, Horizon calls local residents’ complaints “vague and generalized” and contends the tower is in harmony with the surrounding area. 

At the Feb. 7 meeting, Horizon Tower representative Josh Leonard advised the commissioners to approve the tower with any conditions that would improve its look and minimize aspects that concerned residents, such as colors or lights. 

Leonard indicated Horizon would sue if the permit was denied and that if the company prevailed in court, commissioners wouldn’t get the opportunity to add conditions. 

In the lawsuit, the company says it made efforts to mitigate the tower’s impact, including switching from a lattice style to a less obtrusive monopole tower, giving it an anti-glare coating and having no lighting on the structure. 

Horizon is asking presiding U.S. District Court Judge Alan Johnson to void the county commissioners’ actions and to direct the board to issue all of the approvals and permits needed to construct the tower. 

The company — represented by two lawyers from Holland & Hart in Cheyenne and two from the Washington, D.C. office of the firm Mintz — also wants the county to pay its attorney’s fees. 

Horizon Tower currently owns 48 cell towers in the western U.S., including sites in Cheyenne and Rock Springs, according to the company’s website. 

The Green Creek site in Wapiti is just one of 41 other towers that Horizon has planned, though it’s the only one in development in Wyoming. 

As allowed by the federal Communications Act, Horizon has requested an expedited review of its complaint.