Judge to rule on Mount Morrison tower

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By Vicky Gits

By the end of September, a district judge is expected to rule whether Bear Creek Development of Golden is entitled to build a 135-foot horizontal, high-definition TV antenna array on top of Mount Morrison.

The parties will present oral arguments on whether the Jefferson County commissioners failed to follow a higher court’s instructions when it approved the tower project April 1 in a 3-0 vote.

If the judge rules against the county commissioners, Bear Creek Development’s project will be stalled indefinitely.

The homeowner group, Canyon Area Residents for the Environment, does not want the tower on Mount Morrison, the peak seen above Red Rocks Amphitheatre.

The parties agreed there was no longer any point in seeking a preliminary injunction to stop construction, since the tower project was still working through the county approval process.

TV stations would like to have the tower in operation by February 2009 when conversion to digital TV takes place. Rocky Mountain PBS Channel 18, KUVO-FM, Colorado Public Radio KVOD FM, Channel 59, Channel 14 and Channel 23 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.

“The plaintiff filed the suit in May and never asked for a hearing on the injunction,” said Martha Whitmore of Patton, Boggs, the attorney for the landowner. “We aren’t doing anything, so there wasn’t any reason.”

The case has been set for oral arguments on the briefs. The plaintiff, CARE, files first, and Bear Creek Development has 20 days to file.

“This is not a trial; this is a review of the record of what the county commissioners did,” Whitmore said. “We’ll basically tell the judge the highlights of the briefs.”

She said she wouldn’t be surprised if the judge ruled the same day or shortly after.

The judge will rule on the merits of the arguments in the case, not the request for a preliminary injunction to stop construction.

Kathryn Isenberger of Bear Creek Development said the company is continuing to work through the process and has every intention of building the TV tower. It has submitted the official development plan and is awaiting comments from the planning staff.

In papers filed Aug. 1, CARE alleges the county commission should have conducted an investigation, developed a new record and come up with an original finding based on the circumstances in place as of 2008.

“It could not … simply rubber-stamp decisions made by an earlier board in 2003 or simply rely on the inadequate and outdated record from 2003,” says the opening brief filed by attorney Richard Westfall of Hale Friesen of Denver on behalf of CARE.

In a lawsuit challenging the county commissioners, Westfall maintains that the commissioners failed to comply with the terms of the appeals court remand and abused its discretion.

CARE homeowners filed a Rule 106 lawsuit aiming to overturn the commissioners’ 2003 vote for approval. They were unsuccessful in district court but later succeeded in a higher court ruling in May 2006, when the court ruled the board’s decision was materially defective. The Court of Appeals remanded the case to the county board, which held another hearing April 1 and voted to approve the tower project.