Canyon Area Residents for the Environment has asked Jefferson County District Court for an injunction to prevent construction of a 135-foot horizontal, high-definition TV antenna array on top of Mount Morrison.
The issues are separate but similar to the dispute surrounding the construction of the digital TV tower on Lookout Mountain, which was stalled until Congress got involved and overruled local courts in 2006.
CARE has also filed a Rule 106 appeal in Jefferson County District Court against the county commissioners’ long-pending April 1 vote to approve the rezoning to build a bigger tower.
“Clearly this is Nimby-ism, and they are looking to delay as long as they can,” said Martha Whitmore, an attorney for the landowner on Mount Morrison. “We are taking a short, ugly tower and replacing it with one that will be below the ridgeline, camouflaged, painted and much less noticeable,”
“These people have kept this in litigation for five years. And now they are litigating the decision on the basis we ought to go back to day one and take another five years,” Whitmore said.
Mount Morrison is the peak that can be seen above Red Rocks Amphitheatre from C-470 at the Morrison exit. A half-dozen local broadcasters have plans to put expanded facilities on the mountain against the wishes of several homeowner groups.
Bear Creek Development of Golden, the land company that owns the TV tower property, is fighting the appeal.
“The law is very clearly on our side. We are optimistic we will prevail,” said Kathryn Isenberger, an officer in the company.
“We gave them everything they asked for, and they have fought us every step of the way.”
TV stations want to have the tower in operation by February 2009, when conversion to digital TV takes place.
Isenberger contends the antenna is a unique design that will be positioned against the face of the mountain to be virtually invisible from the entrance to Red Rocks and beyond. She offered before and after photos crafted by professional photo illustrators that looked identical.
“We will not even be above the ridge,” she said. “Mount Morrison is 500 feet higher. We took the 278 feet and laid it on its side so it’s only 65 feet tall at the front end and not as tall at the back end. We have no lighting. The antenna pattern directs all the signals to the east and not the west (where there are more homes).”
Isenberger said there are fewer homes on Mount Morrison than on Lookout Mountain.
Deb Carney, the attorney for CARE, said the commissioners are obligated to follow the dictates of the county’s community plans. “The tower face area is not supposed to increase. It is increasing by seven times. They totally ignored it,” Carney said.
“We will see the towers from the side. We will see a monstrosity above Red Rocks as we go along I-70. It’s amazing people would do that to one of the country’s most beautiful places,” Carney said.
She is not persuaded the tower won’t be taller than the top of the ridge.
“I don’t believe her. It defies engineering and science,” Carney said.
The new challenge asks for a judge to review the record on grounds the rezoning approval fails to comply with the order handed down by the Colorado Court of Appeals.
CARE maintains the decision was flawed because the county commissioners:
• “… Relied on the stale 2003 record despite substantial factual challenges over the intervening time period …
• “… Failed to make an express finding that no existing tower sites were adequate.”
The lawsuit maintains that, in failing to comply with the terms of the remand, the board abused its discretion and exceeded its jurisdiction.
Attorney Richard Westfall of Hale Friesen of Denver filed the lawsuit on behalf of CARE, a nonprofit corporation, on May 16. Westfall was responsible for the successful appeal of the original commissioners’ decision in the case to the Court of Appeals.
“All (the board of county commissioners) did was redraft the resolution and use the language in the Court of Appeals. That’s not a reconsideration. … One of the factors was a specific order to make a determination on alternative sites. Lookout Mountain might be a viable choice,” Westfall said.
“They did not take the remand seriously. They basically thumbed their nose at the court,” he said.
Rule 106 is a rule of civil procedure that allows a party to challenge a decision of the county commissioners.
The attorney for the land company disagrees.
“The 2003 record was very complete,” Whitmore said. “Nothing has changed since 2003. … In my view it’s incredibly selfish. … I think they absolutely, diligently complied with the court ruling.”
uring the April hearing, CARE attorney Carney argued against the TV antenna on the grounds of visual impact, interference, health effects and general incompatibility with residential homeownership
For 10 years Carney fought the TV tower that now stands on Lookout Mountain, sponsored by the Lake Cedar Group, which ultimately managed to bypass Jefferson County entirely and get an order from the U.S. Congress in late 2007.
The homeowner group wants the tower on Squaw Mountain instead of Mount Morrison.
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.
“We need the height and a new permanent location,” said Jim Morghese, president of Rocky Mountain PBS, one of the members of Public Interest Communication Group, the consortium backing the tower. Morghese said April 1 at the commissioners hearing the alternate location on Squaw Mountain would not reach 30 percent of his audience.