A federal judge says the Park County commissioners were wrong to block a company from building a new 195-foot cell tower in Wapiti last year. On Friday, U.S. District Court Judge Alan Johnson ordered the county to reverse course and issue a permit for the project by the end of this week.

However, commissioners decided Tuesday that they will instead appeal the judge’s ruling to a higher court, which could leave the tower’s fate in limbo.

“... we believe it’s in the best interest of Park County to appeal it, and that's what our residents asked — is to not allow this tower to happen, at least in that location,” Commission Chairman Dossie Overfield told the Tribune on Tuesday. “And that’s what we’re going to try to do.”

Since 2022, the California-based Horizon Tower LLC has been seeking to build the structure along Green Creek Road, just south of U.S. Highway 14/16/20W.

Horizon says there’s a “massive service gap,” with the nearest tower 16 miles away. The proposed addition would not only serve the growing population in Wapiti but the multitudes of people who pass through the valley on their way to and from Yellowstone National Park, the company says. Telecom giant Verizon is reportedly interested in using the tower, and the structure contains space for additional carriers.

Horizon Tower representatives didn’t respond to emails seeking comment by press time.

Objections, a denial and litigation

Hundreds of Wapiti Valley property owners objected to the company’s plans, and their concerns prompted county commissioners to reject Horizon Tower’s request for a special use permit.

At a February 2023 meeting, the commission unanimously found that “the proposed communication tower and corresponding facility would not be in harmony with the neighborhood; and there is a high likelihood that the proposed communication tower and corresponding facility would have a significant adverse impact on the neighborhood.”

However, Horizon Tower quickly challenged the commissioners’ decision in the U.S. District Court for the District of Wyoming. The company’s attorneys argued the board’s decision effectively prohibited wireless services in the Wapiti area and wasn’t based on substantial evidence.

Following a year-and-a-half of various motions, Judge Johnson agreed and granted summary judgment to the company.

“... apart from its conclusory statement that the proposed tower ‘is not in harmony and compatible with surrounding land uses and the neighborhood,’ the Board’s decision fails to explain its reasoning to any level that would allow this court to identify its considerations,” Johnson wrote in a 32-page decision.

Similarly, the judge said the commissioners failed to explain why they felt the tower would have a “significant adverse impact.”

“While Horizon presented studies indicating that the tower would be unlikely to harm property values, the Board fails to cite or even mention any evidence to the contrary aside from residents’ general fears,” Johnson wrote, saying the commissioners “presumably prioritized speculative, generalized residential concerns over [Horizon Tower’s] evidence.”

Nine area landowners and the nonprofit Wapiti Valley Preservation Group had sought to help defend the commissioners’ decision. They hired a New York attorney who specializes in cell tower litigation and argued they had much at stake in the dispute. In one filing, their counsel described the tower as “a monstrous structure that will forever despoil one of our country’s grandest and most spectacular vistas” and “shatter [the residents’] way of life and their dream of living in one of America’s most glorious locales.”

However, the Wapiti group was ultimately not allowed to intervene in the suit.

County needed to find other site

Though courts generally defer to the decisions made by governmental agencies, the calculus is a little different when it comes to cell towers. That’s because the federal Communications Act explicitly limits local governments’ ability to regulate telecommunications facilities, saying they “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”

Park County Attorney Bryan Skoric and then-Deputy County Attorney Jack Hatfield made a series of arguments defending the commissioners’ decision, but they were rejected by Johnson. For example, while the county contended that Horizon failed to explore other sites, Johnson said case law places the burden on the county to propose another location. In the record and their filings, he said the commissioners “altogether fail to identify any feasible alternative.”

The county’s experts said there were many other possible locations or options for the tower that would have less of an impact on the area’s views, but Johnson found that “none are technologically feasible.”

Horizon said it worked with Verizon to examine 13 potential sites in the Wapiti area and only found two that could work; the site it picked — a nearly 30-acre parcel of private land south of U.S. Highway 14/16/20W — allowed for a shorter tower under 200 feet, avoiding the need for a light on top.

Johnson also noted that the company plans to use a less intrusive monopole design (compared to a lattice structure) and apply a gray, anti-glare finish. He said that indicates Horizon is using the “least intrusive means” to close the service gap in Wapiti.

Next steps

When it filed suit in March 2023, Horizon requested an expedited review of its complaint, but it still took nearly 19 months to reach a decision. With the commissioners appealing Johnson’s ruling to the U.S. Court of Appeals for the Tenth Circuit, that timeline may now be extended further.

While the suit has been pending, Horizon Tower received the county’s permission to build another 195-foot cell tower between Cody and Meeteetse. Set to be constructed on a vacant piece of rangeland along Wyo. Highway 120, that project did not draw any public opposition and commissioners unanimously approved it in June.

(Zac Taylor contributed to this report)