The town of Montrose failed again in its four-year quest to stop the construction of a WSUM student radio tower when a Dane County judge refused Friday to issue an injunction stopping UW-Madison from going ahead with the project.
UW-Madison Special Assistant to the Chancellor Lamarr Billups said last month that the tower should be finished 'before the bad weather comes,' barring legal difficulties.
Dane County Circuit Court Judge John Albert allowed WSUM to proceed, even though a lawsuit filed by Montrose is still pending. The suit argues that the station's conditional use permit to build the tower is expired, is still pending.
Albert said there is no need for an injunction because if the tower goes up and the courts find it was built with an expired permit, it can be taken down.
The conditional use permit, granted three years ago by the Dane County Zoning and Natural Resources committee, required WSUM to start construction within one year after the permit was issued. But Montrose appealed the committee's decision to issue the permit to the Dane County Board, which voted last April to uphold the ZNR committee's decision. This past July the county Board of Adjustments ruled that it would consider the permit to have been issued at the time of the County Board vote, in April 2001.
Montrose filed suit in Dane County Circuit Court in late August alleging that the permit should have been considered issued when the ZNR committee granted it, meaning that the permit would have expired by now. Albert said he would rule on that lawsuit in early December.
Wisconsin Assistant Attorney General Thomas Creeron, representing WSUM, said it would be incorrect to say the permit was issued after the ZNR committee approved it in 1998 because WSUM was not given a permit until this year.
'We couldn't get a permit because they stopped us from getting one,' Creeron said. 'Since we couldn't get the appeal heard, County Zoning Administrator Jim Gregorius wouldn't issue the permit.'
WSUM General Manager Dave Black said in a prepared statement Friday that he feels 'gratified by today's ruling.'
'I feel especially happy for our seniors who will be graduating in May, some of whom were seniors in high school when the county decided that we met the criteria necessary to allow us to build the tower,' Black said.
Although WSUM can proceed with construction for now, it is still not assured of victory in its long battle to build the tower. Laura Dulski, attorney for Montrose, indicated at the hearing Friday that she would appeal Albert's decision to the state Court of Appeals. And if Albert finds for WSUM in Montrose's lawsuit over the conditional use permit, the town could appeal that decision to the Court of Appeals.
'This is a matter that could go either way in my court and either way in the Court of Appeals,' Albert said.
