Group files appeal in Mount Morrison tower case

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By Vicky Gits

The group fighting the construction of a horizontal TV tower on Mount Morrison above Red Rocks Amphitheatre has filed a last-minute appeal to the state Court of Appeals. But the move is not likely to halt construction plans in the meantime.

The filing follows an Oct. 7 district court ruling that the Jefferson County commissioners had followed the proper process in approving the tower proposal.

This is the second time in five years that Canyon Area Residents for the Environment has launched an appeal against a county board’s decision to OK the tower construction. CARE also spearheaded the fight against Lake Cedar Group and the new tower on Lookout Mountain.

The grounds for the appeal in the Mount Morrison case are that the commissioners failed to follow two of the three instructions of the higher court, said Richard A. Westfall of Hale Friesen in Denver. Friesen filed the appeal on behalf of CARE.

CARE has been fighting the proposal for the TV tower on Mount Morrison since the board originally approved the concept after public hearings in 2002 and 2003.

The neighborhood group logged a big victory when the Colorado

Court of Appeals accepted the case on appeal and later ruled against the county commissioners, saying they had made procedural errors.

The board conducted another investigation and a round of hearings last spring. Ultimately the county commissioners on April 1 unanimously approved the rezoning that would make the tower possible.

Friesen said the basis for the appeal is that the commissioners failed in two respects:

• Complying with the appeals court’s order to determine if the rezoning application was in general conformance with land use plans; and

• Meeting the burden of establishing there were no adequate alternative sites for the proposed broadcasting towers.

In a one-page decision, District Judge Stephen Munsinger ruled the commissioners had complied with the appeals court instruction.

“This court finds … the board has complied with the requirements of holidng 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 that the board was directed to make,” Judge Munsinger said in his one-page Oct. 7 decision.

Mount Morrison is the peak that stands above Red Rocks Amphitheatre and can be seen from Evergreen Parkway and other points in Evergreen.

Bear Creek Development has said the bulk of the tower scaffold will be built into the side of the mountain. There will be four towers extending at least 30 to 50 feet above the ridgeline, with an 8,000-square-foot footprint.

Bear Creek’s attorney, Marti Whitmore of Patton, Boggs of Denver, said the appeal would not interrupt the preliminary construction process.

“They have not asked for a stay. If they did, they would have to post a bond to cover the damages should the district court ruling be upheld. … We think this is delay for delay’s sake. They don’t want to take a chance at being forced to cover damages,” Whitmore said.

The major backers of the tower project are Bear Creek Development Co., which owns the property on top of Mount Morrison, and Public Interest Communications. PIC is a consortium of television and radio stations, including Rocky Mountain PBS Channel 18 digital TV, Channel 59 TV and DTV, Channel 14 DTV, Channel 23 low-power TV, Colorado Public Radio KVOD FM and jazz radio station KUVO FM.

The case against the Mount Morrison tower for years was overshadowed by the battle over Lookout Mountain, which ended abruptly in 2007 with an act of Congress that said the county approval process wasn’t relevant and essentially overruled both sides. The tower went into operation this year.