Jefferson County commissioners abused their discretion by letting a developer make last-minute changes to a controversial telecommunications tower plan without public comment, according to a Colorado Court of Appeals decision issued Thursday.
The court instructed the issue be sent back to county commissioners with instructions that they hold adequate public hearings on the proposed Mount Morrison tower, fully investigate other potential tower sites and determine that the tower conforms with the county’s land-use plans.
“I hope it’s an eye-opener for them,” said Richard Westfall, attorney for the group of residents who appealed the tower approval. “This is a very clear, prescriptive opinion.”
The tower, approved by commissioners in 2003, would provide high- definition television for Denver’s Rocky Mountain PBS station and service for other television and radio stations.
“I’m really surprised by that outcome,” said James Morgese, Rocky Mountain PBS president.
Morgese said the decision, in combination with other factors, could mean that areas of northern and eastern Colorado won’t get Rocky Mountain PBS after 2009.
The other factors, Morgese said, are federal regulations requiring a switch to digital, the height needed for HDTV broadcast and the long lead times necessary to get approvals for the tower plan and to build it.
The Mount Morrison plan is one of several that would replace or put up new telecommunications towers in the foothills near Golden. It is not connected to a high- profile proposal by a consortium of local television stations to put a tower on Lookout Mountain.
A group of local residents who call themselves Canyon Area Residents for the Environment, or CARE, has spearheaded opposition to the tower plan.
County commissioners held several public hearings on the Mount Morrison project, closed public testimony and then allowed the developer to revise its application without giving the public a chance to comment on the revised plan.
CARE appealed the Mount Morrison tower, a 135-foot-high structure proposed by Bear Creek Development Corp. that was to replace a 120-foot-tall tower and antenna.
“CARE contends the Board (of county commissioners) abused its discretion by permitting the developers to make substantial changes to their proposal after public testimony was closed,” according to the appeals court decision. “We agree.”
Eric Butler, an assistant Jefferson County attorney, said the county will consider whether to challenge the decision.
“The county thought it had gone through a thorough and adequate review process,” Butler said. “Obviously, the Court of Appeals disagreed.”
Butler said it’s important to note that the appeals court didn’t criticize the ultimate decision, only the process.
Bear Creek Development and its partner, Public Interest Communications, planned to put up a tower that would serve a group of local public TV and radio stations.
The horizontal tower would include a gridwork with antennas that could accommodate four digital TV stations, up to nine FM radio stations, four analog TV stations and numerous cellphone and radio installations.
Staff writer Alicia Caldwell can be reached at 303-820-1930 or acaldwell@denverpost.com.
This story has been corrected in this online archive. Because of incorrect information provided to the Post, this story originally said the Federal Communications Commission had required television broadcasters to switch to high definition television (HDTV) transmission. The requirement is to switch to digital television transmission, of which HDTV is one form.
