State of Colorado Joint Resolution 00-031

Sponsored by Senators Sullivant, Congrove, Evans, and Tech and Representative Witwer.— Passed by the Colorado Senate 22 to 12 and by the Colorado House 56 to 5, on April 27, 2000

Concerning Urging the Federal Communications Commission to Reject Lake Cedar Group’s Petition to Preempt Local Government Land Use Decision-Making Authority.

WHEREAS, According to its comprehensive plan and its duly adopted zoning regulations, the Board of County Commissioners of Jefferson County, Colorado denied an application by Lake Cedar Group, LLC, to rezone land on Lookout Mountain from residential and agricultural zoning to planned development zoning in order to allow construction of an 854-foot telecommunications supertower and a 26,000 square foot support building; and

WHEREAS, Such decision was a quasi-adjudicative decision based on factual evidence presented to the Jefferson County Board of County Commissioners and application of applicable legal standards and as such can be appealed judicially to Jefferson County District Court, which court is fully empowered to grant full and appropriate relief to the appellant if appropriate under the facts of the case; and

WHEREAS, Lake Cedar Group filed an appeal of Jefferson County’s decision in Jefferson County District Court, which appeal is now pending the filing of briefs by the parties; and

WHEREAS, Despite the pending judicial appeal, and after Jefferson County spent several months preparing the voluminous record of proceedings for the Jefferson County District Court action, Lake Cedar Group, without notifying the Jefferson County Board of County Commissioners or any other interested party, filed a petition with the Federal Communications Commission (FCC) requesting the FCC to “preempt” Jefferson County’s decision and to declare Jefferson County’s decision “prohibited and unenforceable”; and

WHEREAS, By Public Notice dated April 10, 2000, the FCC seeks public comment on Lake Cedar Group’s petition; and

WHEREAS, In the United States, control over individual land use decisions is firmly vested in local governments, through statutory delegation from state governments; and

WHEREAS, The FCC is barred by the 10th Amendment to the United States Constitution from attempting to preempt decisions made by local governments on individual land use applications because the United States Congress has not directed or authorized the FCC to preempt such local decisions; and

WHEREAS, The FCC lacks not only the authority, but also the expertise and any adopted standards to second-guess and invalidate local government land use decisions; and

WHEREAS, Any attempt by the FCC to preempt local government land use decision-making in this manner would represent an illegal, unauthorized, and unjustified attack on state- and local- government land use authority; now, therefore,

Be It Resolved by the Senate of the Sixty-second General Assembly of the State of Colorado, the House of Representatives concurring herein:

That the General Assembly of the State of Colorado hereby encourages the FCC not to preempt local government land use decision-making and state judicial processes, thus overriding local and state government authority.

Be It Further Resolved, That copies of this Joint Resolution be sent to the President of the United States Senate, the Speaker of the United States House of Representatives; each member of Colorado’s Congressional delegation; each member of the House of Representatives Subcommittee on Telecommunications, Trade and Consumer Protection of the Committee on Commerce; the Governor of Colorado; and the Commissioners of the Federal Communications Commission.