Although Park County commissioners continue to oppose a new cell tower in Wapiti, an appellate court says the developer can start building the 195-foot-high structure. Horizon Tower officials have indicated they will likely begin construction next summer.

The company is looking to improve and expand the area’s spotty cell service, for both Wapiti residents and travelers headed to or from Yellowstone National Park. Following an outpouring of opposition from area residents, however, commissioners rejected Horizon Tower’s plans to build the tower off U.S. Highway 14/16/20W last year. The company then challenged the decision in federal court, and U.S. District Judge Alan Johnson sided with Horizon earlier this month. Johnson found that commissioners had failed to justify their denial, saying they appeared to have “prioritized speculative, generalized residential concerns over evidence.”

Commissioners quickly challenged the ruling and asked the Tenth Circuit Court of Appeals to keep construction on hold while the case remains pending.

On Friday, however, circuit judges Paul Kelly and Harris Hartz also sided with the company, ruling that the county must issue a special use permit for the tower.

In their brief, three-page order, Hartz and Kelly noted the county isn’t entitled to a stay, with the decision left in the hands of the court.

“Considering all the factors, we are not persuaded that Park County has carried its ‘burden of showing that the circumstances justify an exercise of [our] discretion,’” the judges wrote, quoting a prior decision.

For its part, Horizon called the county’s request for a stay “meritless.”

Their attorneys said the proposed 195-foot-high monopole tower is designed to be “the least intrusive means of remedying the gap” in service and described the residents’ and county’s concerns as “generalized opposition to any new technology.”

Park County Attorney Bryan Skoric and Deputy County Attorney Dustin Slade countered that the evidence supported the commissioners’ decision. For example, they said the fact that roughly 300 landowners signed a petition opposing the tower —  representing more than 65% of the land ownership — support the finding that the tower would not be in harmony with the neighborhood.

Skoric and Slade also argued the board would suffer “irreparable injury” if construction moves forward while the appeal is pending.

They said the commissioners “cannot be compensated by monetary damages by the construction of a 195-[foot] monopole tower that mars the most traveled route in their county, one of the most beautiful scenescapes in North America,” nor can they be compensated for “being deprived of their power and duty to enforce county zoning regulations and procedures.”

However, Horizon noted the county has already been found to have wrongly denied the permit and said the assertion that the tower will “mar” the landscape “is purely speculative, based on the subjective views of unidentified people.”

The company said it would be harmed by another delay, noting it initially applied to build the tower in October 2022.

“Horizon has no recourse for the lost revenues or the costs of the litigation,” the company’s attorneys wrote, and a stay would only deepen those costs.

Horizon also noted that the Tenth Circuit may rule on the county’s appeal before it starts construction, estimating that work won’t begin until July 2025. If the court rules in the county’s favor after construction has begun or been completed, the company noted it could theoretically be ordered to remove the tower.

Both the commissioners and Horizon representatives contend that they’re likely to prevail on appeal.

In the meantime, commissioners have not yet announced when they’ll issue Horizon’s permit.