Courts Issue Rulings on Two Tower Rezonings

In 2003, Jefferson County Board of County Commissioners (Lawrence, Holloway, and Sheehan) approved rezoning applications to permit the construction of high power broadcast towers on Mount Morrison and Lookout Mountain. Canyon Area Residents for the Environment (CARE) and others filed lawsuits requesting to have these approvals overturned. In May 2006, courts issued rulings on both tower lawsuits.

On May 4, 2006, the Colorado Court of Appeals issued a ruling effectively remanding the Mount Morrison case back to the Jefferson County Board of Commissioners (BCC). The court found that the rezoning was deficient in three areas:

1) Substantial revisions and additions were made to the application after public testimony was closed; the public was not reasonably informed of the project specifications; and the public was not allowed an adequate opportunity to be heard.

2) The Jefferson County Zoning Resolution prohibits rezoning for more telecommunications sites if existing alternate sites are available. The Court noted that the county’s expert testified that Squaw Mountain was an adequate alternative site for the proposed tower, and that Jefferson County Planning and Zoning staff agreed, recommending denial of the application based on the availability of alternate sites. The Court concluded that at least one member of the BCC had applied an incorrect legal standard regarding alternate sites, and that the BCC had made no express determination regarding the availability of alternate sites.

3) The rezoning application is for a Planned Unit Development (PUD). The Court determined that state law regarding PUDs requires a finding by the county that a PUD is in conformity with any master plan or comprehensive plan for the county. The BCC made no such finding, and the Court noted that the Jefferson County Planning Commission had recommended denial of the application, concluding that the proposal was not in compliance with either the Central Mountains Community Plan (CMCP) or the Telecommunications Land Use Plan (TLUP).

On May 23, 2006, Judge R. Brooke Jackson again remanded the Lake Cedar Group (LCG) rezoning on Lookout Mountain to the BCC (McCasky, Congrove, Auburn) for a final decision. Judge Jackson stated that the prior rezoning approvals of the LCG application had been made by the BCC when the hearing record was incomplete, and the record is now complete and ripe for a decision by the BCC. Judge Jackson stated, “The responsibility of the Board now is to review the record and then to make a decision on the proposed rezoning. Whatever decision is made must be supported by an explanation of the basis of the decision, which need not be expressed in legalistic terms.” He also stated, “The court will affirm whatever decision is made, so long as it can be shown that there is competent evidence in the record that supports the decision.”

The Appeals Court decision regarding Mount Morrison may affect the LCG case, because the ruling in the Mount Morrison case has set precedent in the requirement for the BCC to issue express findings regarding the existence of alternate sites and conformance with the CMCP and TLUP. The BCC had not previously made express findings on either of these issues in the LCG rezoning case.

—Al Hislop

For more information, see Antenna Tower Update.