CARE appeals Mount Morrison decision to higher court

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By Vicky Gits

A homeowner group is taking its battle against the Jeffco county commissioners and a horizontal TV tower on Mount Morrison to the state court of appeals for the second time since 2006.

Attorney Richard Westfall of Denver filed a 30-page opening brief Feb. 2 on behalf of Canyon Area Residents for the Environment, a homeowner group that is behind the campaign against a bigger Mount Morrison tower.

CARE also spearheaded the unsuccessful fight against Lake Cedar Group, Jefferson County and the new digital TV tower on Lookout Mountain. In that case, the decision eventually was preempted by an act of Congress in December 2006.

After the Lookout Mountain decision, attention turned in the direction of Mount Morrison, where the landowner, Bear Creek Development Co. of Golden, has been seeking rezoning for a more elaborate TV tower since about 2001. Morrison is the peak that can be seen directly above Red Rocks Amphitheatre.

In the most recent filing, CARE argues that the county commissioners didn’t do their duty and failed to follow the instructions of the appeals court ruling in which their initial approval of the TV tower was reversed.

Although the commissioners approved the tower and a judge later endorsed their decision over CARE’s objections, CARE maintains the commissioners gave their approval in error and asks the higher court to block the tower’s construction.

“Of course they did their job,” said Martha Whitmore of Patton Boggs of Denver, an attorney for Bear Creek Development Co. “(The appeal) is nothing but a rehash of the district court brief. CARE is saying the county commissioners should have reinvented the wheel. We disagreed strongly. Two different boards of commissioners have reviewed the facts. The application reflected people’s comments, and the commissioners put on restrictions. They were familiar with the issue.”

The TV stations can’t put everything on Lookout Mountain because the federal court ruling doesn’t apply to radio. It only applies to digital television, Whitmore said. Three of the entities involved in the Mount Morrison project are radio stations.

“The really fascinating thing is, you suddenly have CARE, which consists of Genesee and Lookout Mountain homeowners, advocating for more towers on Lookout Mountain,” Whitmore said.

In the newly filed Feb. 2 brief, CARE makes basically the same case it made before when it objected to the county commissioners’ decision, saying the commissioners failed to do any new fact-finding when they determined that the existing tower locations were inadequate.

The main contention is that the April 1, 2008, hearing before the commissioners was a rehash of the hearing held in 2003 and lacked credibility or authority.

That was also the argument that District Judge Stephen Munsinger rejected last year after a one-day review in Jefferson County District Court.

Munsinger’s Oct. 7 order states: “This court finds, under the structure of a Rule 106 review, that the board has complied with the requirements of holding further public hearings, and the board has made express findings as required by the remand. There is competent evidence in the record to support the findings the board was directed to make. CARE has not shown that the board abused its discretion or exceeded its jurisdiction in doing exactly what it was instructed to do by the remand order from the Court of Appeals.”

In opposition, the new brief strenuously makes the case the commissioners ignored the possibility that Lookout Mountain could accommodate the installations. Specifically, Channel 6 could use the tower it already occupies on Lookout Mountain rather than build a new tower on Mount Morrison, CARE says.

There is also evidence that Channel 59 (now Channel 43) already has applied for a backup tower in Dacono.

As far as showing compliance with the land use plans, CARE describes the applicants’ efforts as “appalling” and minimal.

Broadcast stations were aiming to have the tower in operation by February 2009 when conversion to digital TV was scheduled to take place. Rocky Mountain PBS Channel 18 digital TV, KUVO-FM, Colorado Public Radio KVOD FM, Channel 59-TV and DTV, Channel 14-DTV and Channel 23-low-power TV plan to use the proposed tower on Mount Morrison.

The existing Channel 6 tower on Lookout Mountain will be removed, along with the Channel 59 tower on Mount Morrison.

Tower timeline

• Feb. 2, 2009: Canyon Area Residents for the Environment submit a 30-page opening brief in support of the bid to appeal the decision of the county commissioners to allow a prominent new TV tower on the face and summit of Mount Morrison.

• December 2008: CARE appeals to the state court of appeals Judge Stephen Munsinger’s decision in favor of the tower and the Jeffco commissioners.

• Oct. 7, 2008: Munsinger rules the county commissioners’ decision will stand on grounds it complied with the orders of the court of appeals orders following the remand.

• September 2008: Munsinger hears request for the Rule 106 review of the commissioners’ decision approving the tower construction.

• April 1 2008: County commissioners hold hearings and review on remand by the court of appeals. Commissioners vote unanimously to grant application for rezoning.

• Nov. 26, 2006: Supreme Court refuses to hear appeal of tower proponents, remands case to county commissioners for review.

• May 4, 2006: Three-judge appeals panel rules the commissioners made a mistake in the approval process by allowing significant changes to the tower proposal after public testimony was closed.

• 2004: County commissioners approve construction of TV tower on Mount Morrison.

• 2002, 2003: Commissioners hold hearings.

• Aug. 31, 2001: Bear Creek Development Corp. applies for rezoning to take down one of the two existing towers on Mount Morrison and erect a new tower and companion building.

Tower Height: 65 feet plus 70 feet of top-mounted broadcast antennas, 135 feet total height above the easterly tower concrete foundation, which in no event shall exceed 60 feet above the ridge elevation of 7,742 feet.