02-0596 Hearst-Argyle Stations, Inc. v. Board of Zoning Appeals of the City of Milwaukee

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“BOZA weighed this evidence and found that a side-mounted DTV antenna on Hearst’s present tower would reach 99.5 percent of its viewing population in the City of Milwaukee – a loss of .5 percent or approximately 3,000 viewers.9 Further, BOZA found, and Hearst concedes, that viewers outside of the City of Milwaukee in the periphery of Channel 12’s service area would experience a maximum loss of two percent.10 We cannot agree with Hearst that this loss is so great as to create a ‘public inconvenience,’ such that top-mounting rather than side-mounting ‘is necessary for the public convenience at a particular location.’ Accordingly, BOZA’s decision was not arbitrary, oppressive, or unreasonable, and will be affirmed.”

Order affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Schudson, J. “I am unable to join the majority because, in my estimation, its opinion (1) addresses an issue it should not; (2) fails to adequately analyze the issue it must; and (3) incorrectly accepts the City’s assertion-an assertion belied by the record-that BOZA considered the ‘public convenience’ of television viewers living outside the city limits. Because the record fails to establish that BOZA considered the “public convenience” of viewers outside the city limits, and because the City concedes that BOZA was required to do so, we must remand.”

Dist I, Milwaukee County, Haese, J., Curley, J.

Attorneys:

For Appellant: James H. Baxter III, Milwaukee; Matthew J. Flynn, Milwaukee; Cristina D. Hernandez-Malaby, Milwaukee

For Respondent: Thomas O. Gartner, Milwaukee