(1973)
62 Op. Att'y Gen. 232
| Wis. Att'y Gen. | 1973

NORMAN M. CLAPP, Secretary, Department of Transportation

You have requested the opinion of this office with respect to the erection of communication towers in the vicinity of airports which complies with local zoning ordinances, but which either exceeds the height of 500 feet and lies within a mile of an airport, or the height of which exceeds the ratio of one foot vertical to 40 feet horizontal measured from the nearest boundary of the nearest public airport within the state. Your question specifically concerns the jurisdiction of the Secretary of Transportation over the erection of such structures.

The applicable subsections of sec. 114.135, Stats., read as follows:

"(6) PERMIT FOR ERECTION OF HIGH STRUCTURES REQUIRED. No person shall erect anywhere in this state any building, structure, tower or any other object the height of which exceeds the limitations set forth in sub. (7) without first filing an *Page 233 application and procuring a permit from the secretary of transportation.

"(7) POWER TO CONTROL ERECTION OF HIGH STRUCTURES. For the purposes of sub. (6) the power and authority to control the erection of buildings, structures, towers and other objects by the secretary of transportation shall be limited to those objects that would either extend to a height of more than 500 feet above the ground or surface of the water within one mile of the location of the object, or above a height determined by the ratio of one foot vertical to 40 feet horizontal measured from the nearest boundary of the nearest public airport within the state; however, this power and authority shall not extend to objects of less than 150 feet in height above the ground or water level at the location of the object or to objects located within areas zoned under s. 114.136 or to objects located within areas zoned under s. 62.23 (7) where the zoning ordinance enacted under said subsection controls the height of structures.

"* * *

"(9) CONFLICTING AUTHORITY. Wherein conflicting jurisdiction arises over the control of the erection of a building, structure, tower or hazard between the secretary of transportation and any political subdivision of the state, the secretary of transportation may overrule rules and regulations adopted by any political subdivision under the laws of this state after a public hearing wherein all parties thereto have been given an opportunity to be heard."

Section 114.136, Stats., authorizes municipalities (counties, cities, villages and towns) to protect the aerial approaches to airport sites by ordinance regulating and restricting the use, location and height of buildings and structures within three miles of the airport site. Subsection (2) (b) thereof, provides that the height of buildings or structures within three miles from the boundaries of the airport site shall not be restricted to a height above the level of the airport site, which is less than one-thirtieth of its distance from the boundary of the airport site in the case of Class I and II airports or one-fifteenth of its distance from the boundary of the airport in the case of Class III or larger airports. However, the height of buildings or structures within three miles of the site may be restricted to a *Page 234 height of 150 feet above the lowest point on any planned runway. Section 62.23 (7), Stats., sets forth the granting of power to cities to enact zoning ordinances and the procedure to be followed.

Subsections (6) and (7) of sec. 114.135, Stats., require the procurement of a permit from the Secretary of Transportation for the erection of a tower of the vertical dimensions you describe. The sole exception is in cases where (1) the area in which the tower is located is zoned under sec. 114.136 or under sec. 62.23 (7), and (2) the tower in question is less than 150 feet in height above the land or water. Thus, unless the towers in question satisfy both of the aforementioned requirements, they are within the jurisdiction of the Secretary of Transportation.

Where the jurisdiction of the Secretary of Transportation in this area conflicts with the jurisdiction of any political subdivision of the state, subsec. (9) of sec. 114.135, Stats., provides the authority and procedure whereby the Secretary may overrule the rules and regulations of the political subdivision.

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