CARE loses case against Mount Morrison tower on appeal

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By Vicky Gits

After appealing a district court decision, Canyon Area Residents for the Environment has lost its latest bid to prevent the construction of a new TV broadcast tower on Mount Morrison.

The state Court of Appeals has sided with the Jefferson County Board of Commissioners and District Judge Stephen Munsinger in rejecting the claim that the commissioners were mistaken when they approved the construction of a new TV broadcast tower on Mount Morrison.

“The court in my view simply was not willing to second-guess the board twice,” said attorney Richard Westfall, representing CARE. It doesn’t look like there will be another appeal, Westfall said Monday.

The decision paves the way for Bear Creek Development to begin removing one of the two towers on the mountain and putting in the new tower, for which it has prospective tenants lined up.

“We are still working through the site development process with the county, and then we have to get the building permit,” said Kathyrn Isenberger of Bear Creek Development Co. “Unless CARE decides to go to the Supreme Court, it should end the litigation. We don’t really know when we will be starting. But it won’t be this year.”

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 have indicated they plan to use the proposed tower on Mount Morrison and actively fought for it.

The case pitted the Jeffco commissioners and landowner Bear Creek Development Corp. against the homeowner group, represented by Richard Westfall of Hale Friesen of Denver.

Bear Creek Development was represented by Martha Phillips Whitmore of Evergreen and Jerald Devitt and Steven Watkins of Golden.

In a unanimous decision June 18, the three-judge panel said the commissioners essentially did their duty in full and complied with the dictates of the higher court in 2008 when they were forced to reconsider the original decision made in 2003.

“We conclude that the board complied with the directions on remand and the record supports its actions, we affirm,” the decision states.

The homeowner group argued the commissioners failed to investigate the alternatives to Mount Morrison when they re-opened the hearings in 2008. The group previously had successfully appealed the 2003 decision, forcing the county to reconsider its decision.

The judge said the April 2008 hearing met the court’s standards and the evidence presented was sufficient for the board to make an adequate decision.

The judge noted that various parties testified in 2008 about the disadvantages of building TV towers on Squaw Mountain, Eldorado Mountain, Chief Mountain and the Republic Building in downtown Denver. He said it was up to the board to decide whether the evidence was good enough.

“Evaluating the credibility, weight, and probative value of the foregoing evidence is solely within the fact-finding province of the board. Here we conclude the evidence was sufficient to support the board’s finding that no existing ‘telecommunications site is available’ which could adequately accommodate the equipment and purposes identified in the applicants’ proposal. … We further conclude the board made this determination as of 2008, albeit relying in part on evidence from the earlier proceeding,” writes Judge John R. Webb, with Judges Russel Carparelli and Nancy Lichtenstein concurring.

Contact Vicky Gits at 303-350-1042 or HYPERLINK "mailto:vicky@evergreenco.com" vicky@evergreenco.com.