© 2004 Updated: 9/24/04

ANTENNA TOWER - SPECIAL REPORT

City of Golden legal appeal 9/18/03

DISTRICT COURT, COUNTY OF JEFFERSON, COLORADO Court Address: 100 Jefferson County Parkway Golden, CO 80403-8780

Plaintiffs: CITY OF GOLDEN, CANYON AREA RESIDENTS FOR THE ENVIRONMENT, Inc., Paradise Hills Home Owner Association, Lookout Mountain Homeowner Association, Stonebridge at Eagle Ridge MASTER OWNER’S Association, Pacific Millimeter Products, Inc., Monnie Elizabeth AND M. Robert D. Barrett, Eddie and Cheryl Alianiello, James and Christina Shea, Guenter Grothe, Dr. Ron Larson, Brent and Ellie Anderson, Hal and Mary Shelton, Roger and Eva Colton, Jean and Paul Queneau, Roger Mattson, Kathleen A. Sander and GARY OLHOEFT, and Marston and Theresa Shelton,

Defendant(s): JEFFERSON COUNTY, BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, and LAKE CEDAR GROUP, L.L.C.

Attorneys for Plaintiff City of Golden: James Windholz (# 1,253) David Williamson (# 8,530) Windholz & Associates 1650 38th Street, Suite 103W Boulder, CO 80301 Telephone (303) 443-3100 Fax (303) 443-7835 e-mail: jwindholz@windholzlaw.com

John Putnam (# 23,353) Kaplan Kirsch & Rockwell LLP 1675 Broadway, Suite 2300 Denver, CO 80202 Telephone (303) 825-7000 Fax (303) 825-7005 e-mail: jputnam@kaplankirsch.com

Attorney for Individuals, Corporate Entities and Homeowners’ Associations: Deborah Carney, Esq. (# 13,962) Carney Law Office 21789 Cabrini Boulevard Golden, CO 80401 Telephone: (303) 526-9666 e-mail: deb@carneylaw.net

COMPLAINT

The City of Golden (“City”), through its counsel, Windholz & Associates and Kaplan Kirsch & Rockwell LLP, and Canyon Area Residents for the Environment, Inc., Paradise Hills Homeowner Association, Lookout Mountain Homeowner Association, Stonebridge at Eagle Ridge Master Owners’ Association, Pacific Millimeter Products, Inc., Monnie Elizabeth and M. Robert D. Barrett, Eddie and Cheryl Alianiello, James and Christina Shea, Guenter Grothe, Dr. Ron Larson, Brent and Ellie Anderson, Hal and Mary Shelton, Roger and Eva Colton, Jean and Paul Queneau, Roger Mattson, and Marston and Theresa Shelton, Kathleen Sander, and Gary Olhoeft, through their counsel Carney Law Office, for their Complaint against Defendants state:

INTRODUCTION

This is an action under Colorado Rule of Civil Procedure 106(a)(4) and for declaratory and injunctive relief against the Jefferson County Board of County Commissioners (“Board”), Jefferson County (“County”), and Lake Cedar Group, L.L.C. (“Lake Cedar”) regarding the Board’s decision on August 19, 2003, to rezone property (“Lake Cedar Property”) controlled by Lake Cedar, for a new telecommunications tower (“new tower”) on Lookout Mountain to transmit high-power digital television signals. The rezoning proposal was opposed vigorously by local residents, governments and businesses due to its effects on property values, health, electronic equipment and the local economy. Despite the objections of Plaintiffs and the County’s planning staff, the Board abused its discretion, acted arbitrarily and capriciously, and acted outside the scope of its authority in approving the rezoning by failing to comply with a number of non-discretionary requirements of its Zoning Resolution and other provisions binding on the County. These procedural failures expose Plaintiffs to unnecessary and unreasonable harm associated with the new tower.

JURISDICTION AND VENUE

This Court has jurisdiction over the claims presented in this action under Rule 106 of the Colorado Rules of Civil Procedure, §13-51-101, et seq., C.R.S., and Rule 57 of the Colorado Rules of Civil Procedure (Declaratory Judgment). Venue is proper under Rule 98, C.R.C.P., because the decisions and actions taken by the Defendants occurred in Jefferson County and all of the parties reside there.

PARTIES

Plaintiff City of Golden is a home rule city that would be affected by the new tower authorized by the Board’s rezoning of the Lake Cedar Property. While the new tower would not be located within the limits of the City, radiation from the tower would profoundly affect the City, its residents and businesses. The rezoned property is located less than one-half of one mile from the City’s boundary, from the nearest residence within the City, from the nearest City-owned properties and the nearest streets within the City. City-owned and -operated electronic equipment, including radios for City employees such as firefighters and police would experience additional interference from the increased levels of radiation the new tower would emit. This will impair essential City functions and increase operational costs for the City. The City owns property used for its water system within one-half mile of the Lake Cedar Property.

Similarly, the City has undertaken and expects to continue efforts to promote the economic well being of the community, including activities aimed at high-technology businesses that can be attracted by the proximity to the Colorado School of Mines and the City’s professional workforce. A number of existing and prospective businesses have indicated that they would either need to relocate from the City or avoid locating in the City if the new tower is placed on Lookout Mountain, due to its effects on sensitive electronic equipment. The City’s past economic development efforts will be adversely affected by the Board’s rezoning of the Lake Cedar Property and the City’s ability to engage in this critical governmental function will be seriously impaired.

Finally, the Board’s decision will interfere with the ability of the City to protect the health and safety of its residents, who will experience considerable increases in radiation and the health effects that will accompany the new tower. The City opposed the rezoning and commented to that effect during the public hearings held by the Board. The health of the City’s residents is a matter of local concern and the City is better situated to protect residents’ health than individual residents.

Plaintiff Canyon Area Residents for the Environment (“CARE”) is a Colorado nonprofit corporation that is a coalition of homeowners’ associations and neighborhoods in the Mount Vernon Canyon area of Jefferson County, Colorado. It does serve and has served as an umbrella organization representing a number of central mountain neighborhoods and communities of Jefferson County in the Central Mountains of Jefferson County.

CARE has addressed broadcast radiation concerns of its residents since its inception. In 1999, when the Colorado Department of Health conducted its Brain Cancer Audit in the Vicinity of Lookout Mountain Towers that documented statistically significant elevations in brain cancer rates in the neighborhoods closest to the towers, CARE authorized its Tower Hazard and Radiation Exposure Above Tolerance committee, on behalf of its constituent homeowner associations and the individual members of those homeowners associations, to take action to stop increases in this broadcast radiation by halting the expansion and extension of nonconforming broadcast uses and opposing the addition of digital antennas and proliferation of new high-power telecommunications equipment on Lookout Mountain and Mount Morrison in Jefferson County.

Many homeowners that are in the CARE-member homeowners’ associations and neighborhoods will be exposed to higher levels of broadcast radiation associated with the new tower. This will, among other things, expose these homeowners to greater risks of cancer and other diseases, increase interference with electronic equipment, and reduce property values. Some of these homeowners will also be within a radius subject to debris fall from the new tower and its attendant components or equipment should the tower structure fail or ice fall from the new tower

Plaintiff Paradise Hills Homeowner Association (“Paradise Hills”) is the largest homeowners’ association on Lookout Mountain. Paradise Hills is one of the homeowner association members of CARE and represents a community of approximately 200 homes, 329 adults and 103 children under the age of 18. Many homeowners that are members of Paradise Hills will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiff Lookout Mountain Park Homeowner Association (“Lookout”) is a member of CARE. Lookout is contiguous to the Lake Cedar Property. This homeowners’ association is comprised of approximately 60 homes on land that has been zoned for mountain residential use since 1955. Many homeowners that are members of Lookout will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values. Some of these homeowners will also be within a radius subject to debris fall from the new tower and its attendant components or equipment should the tower structure fail.

Plaintiff Stonebridge at Eagleridge Master Owner’s Association (“Stonebridge”) is a homeowners’ association containing 232 homes within the city limits of Golden. Stonebridge is the closest homeowners’ association to the east of the Lake Cedar Property. Many Stonebridge residents have placed or are planning to place their homes for sale as a result of this proposal and expect to receive lower prices than could have been obtained in the absence of the rezoning. The Lake Cedar site approved for the telecommunications use is less than one half of one mile from homes in this homeowners’ association. Many homeowners that are members of Stonebridge will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiff Pacific Millimeter Products, Inc., 64 S. Lookout Mountain Circle, is a Lookout Mountain high-technology corporation whose products are in use on satellites and in ground-based observations of cosmic background radiation and other radio astronomy projects. Pacific Millimeter Products has already spent $40,000 trying to shield its high-technology equipment from interference from existing towers and must spend considerably more to address the increased radiation that would result from the new tower. The President of Pacific Millimeter Products, Al Hislop, testified that the broadcast radiation interference negatively impacts his company and that of others, and that the new tower proposal will increase the amount of radiation at his business location. Mr. Hislop also provided extensive documentation to Jefferson County that other alternative sites exist and are feasible.

Plaintiffs Monnie Elizabeth and M. Robert D. Barrett live on Lookout Mountain land zoned residential since 1955 at 792 Aspen Road with their three children. Monnie Barrett testified that if and when Lake Cedar’s antennas on the new tower are operated, she and her family will relocate, regardless of the loss of property value. The Barrett property is 670 feet from the approved site. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiffs Eddie and Cheryl Alianiello reside at 822 Aspen Road at a site zoned residential for almost 50 years. Their property is 160 feet from the approved site. Their home is within the area that could be impacted by ice fall or debris fall from Lake Cedar’s new tower. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiffs Jim and Christina Shea reside with their young son at 812 Aspen Road. Their home site has been zoned as mountain residential since 1955 and is 325 feet from the approved Lake Cedar telecommunications planned unit development. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiff Guenter Grothe was assured by Jefferson County in 1977 that the Lookout Mountain broadcast towers would be removed and he constructed his home on 425 Colorow Road in reliance of this promise. Mr. Grothe has spent time and money attempting to shield his home from broadcast radiation and has headed the CARE Tower Mitigation Committee, assembling information about mitigation measures and money expended by residents attempting to shield their homes from broadcast radiation. This household will be exposed to permanent radiation as a result of this new tower. This continuous long-term exposure to broadcast radiation will subject this homeowner to increased health threats, increased interference with electronic equipment, and a reduction in his property values.

Plaintiff Dr. Ron Larson is a retired professor of electrical engineering. Professor Larson resides at 21547 Mountsfield Drive at a home constructed over 40 years ago. The radiation from the new tower would double the amount of broadcast radiation from Lake Cedar at his home. This increased radiation will subject this homeowner to increased health threats, increased interference with electronic equipment, and a reduction in his property values.

Plaintiffs Brent and Ellie Anderson are residents of the City of Golden and reside at 813 Rabbit Run Dr., Golden, 80401, in Stonebridge. Mr. Anderson is the Director of Stonebridge at Eagleridge Master Owner’s Association. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiffs Hal and Mary Shelton are residents of the City of Golden and have resided at 850 Shelton Road on the east portion of Lookout Mountain since 1953. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiffs Roger and Eva Colton are residents of the City of Golden and have lived in Beverly Heights at 1949 Mt. Zion Drive for many decades. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiffs Jean and Paul Queneau are residents of the City of Golden and have lived in Beverly Heights at 1954 Mt. Zion Drive for many decades. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiff Roger Mattson, 481 Crawford Street lives in the Tripp Ranch subdivision in Golden. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject this homeowner to increased health threats, increased interference with electronic equipment, and a reduction in his property values.

Plaintiffs Marston and Theresa Shelton reside with their young son at 19054 Eagle Ridge Drive in Stonebridge within the Golden City limits. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

Plaintiffs Kathleen A. Sander and Gary Olhoeft, reside in the Beverly Heights area of the City of Golden at 1818 Smith Road with their children. This household will be exposed to higher levels of broadcast radiation associated with the new tower. This increased radiation will subject these homeowners to increased health threats, increased interference with electronic equipment, and a reduction in their property values.

The rezoning proposal will have direct and adverse impacts on the Plaintiffs.

Throughout the rezoning process, Plaintiffs were principal opponents to the rezoning request. Plaintiffs’ opposition was based on numerous factors, including noncompliance with numerous zoning requirements, noncompliance with the requirement of the County Zoning Resolution that no rezoning is allowed if alternative sites are available, nonconformity of the proposal with County adopted Master Plans, incompatibility of the use with nearby residential uses, radio frequency (RF) interference issues, adverse impacts on property values, negative impacts to new businesses and health concerns.

Defendant Board of County Commissioners for Jefferson County (“Board”) is an elected Board consisting of three members that is vested with powers to make land use decisions within unincorporated Jefferson County and the obligation to follow nondiscretionary provisions of State, federal and County law. The Board approved the rezoning of the Lake Cedar Property at issue in this case.

Defendant Jefferson County is a subdivision of the State in which the Lake Cedar Property is located.

Defendant Lake Cedar Group, LLC (“Lake Cedar”) is a Delaware Corporation whose registered agent is Richard Campbell, 270 St. Paul St. Ste. 200, Denver, CO, 80206. Lake Cedar asserts that it controls and holds power of attorney for all of the property subject to the rezoning and was the applicant for the rezoning. The Lake Cedar Property is currently owned by Lake Cedar’s members, who are the following broadcasters: Twenver Broadcasting/Mountain Contours-Channel 20, KCNC-Channel 4, KMGH -Channel 7 and KUSA-Channel 9.

GENERAL ALLEGATIONS

Prior to the Board’s rezoning on August 19, 2003, the Lake Cedar Property was zoned Agricultural-Two and Mountain Residential-One, allowing limited residential and agricultural uses. High-power telecommunications towers were not allowable uses in these zones. However, the Lake Cedar Property contains existing telecommunications towers. Every existing tower on Lookout Mountain owned by Lake Cedar members is a nonconforming use on residentially-zoned property. All these towers have only been used for analog broadcast and are not allowed to switch to digital broadcast when analog television use is phased out by the Federal Communications Commission.

These existing telecommunications towers have exposed and continue to expose nearby residents and businesses, including all of the Plaintiffs, to high levels of non-ionizing radiation. This radiation has led to a number of adverse impacts to Plaintiffs, including but not limited to the following:

Interference with home appliances, computers, garage door openers, and other electronic devices caused by the electromagnetic radiation (EMR) generated by high power telecommunication towers;

Interference with commercial, scientific, medical, emergency services and institutional electronic equipment used by local businesses, the Colorado School of Mines, the City and other entities; and

Potential adverse health affects associated with an increase in EMR.

Lookout Mountain and nearby affected areas in Golden have been zoned primarily as residential with some agricultural uses for approximately 50 years.

In 1999, the Colorado Department of Health and Environment conducted a study on the number of brain tumors in the vicinity of the Lookout Mountain broadcast towers and determined that there were statistically significant elevations in the number of such tumors in the two geographic areas closest to the towers. One of these areas included the Beverly Heights section of Golden and the other included the area from Lookout Mountain Park through Paradise Hills on Lookout Mountain. The Department of Health and Environment recommended further research before adding more radiated power to Lookout Mountain

In response to this study, the National Institute of Health has provided over $700,000 to Colorado State University and the University of Washington to study the impact of the Lookout Mountain broadcast towers on the health of 300 Lookout Mountain residents. Testing is underway and results are expected to be published in the next three years.

In recognition of the health risks, electronic interference, tower fall, and other negative impacts associated with telecommunications towers, the County has adopted special nondiscretionary provisions of its Zoning Resolution governing requests to allow new telecommunications towers. In addition, the County also addressed the special risks and concerns associated with telecommunications towers in its Telecommunications Land Use Plan (“TLUP”) and Central Mountains Community Plan applicable to the Lake Cedar Property.

In response to requests for authority to construct new towers on the Lake Cedar Property, the Board found that proposed new towers on the site were not compatible with nearby land uses and denied rezoning applications in 1983, 1985, 1990 and 1998.

After said rejections of previous requests for rezoning, in 2001, Lake Cedar announced an intention to seek the rezoning, at issue in this case, to allow construction of the new tower.

Lake Cedar held community meetings on April 16 and May 29, 2002, regarding its rezoning proposal for the new tower. Although County Zoning Resolution Section 1.G.2.c. required the applicant to identify and notify all property owners within one-fourth of one mile in mountainous areas and 200 feet in the plains areas, as well as all homeowners’ associations within two miles of the proposed rezoning, many individuals and homeowners’ associations that should have been notified did not receive such required notices.

On June 28, 2002, Lake Cedar filed an application with the County to rezone the Lake Cedar Property at 21119 Cedar Lake Road to a Telecommunications Planned Use Development.

The Lake Cedar rezoning application requested that the County rezone land zoned MR-1 and A-2 for over four decades to Planned Development for Multiple-Use Telecommunications site that would allow as many as to eight television broadcast stations.  

With the requested rezoning, the Effective Radiated Power level of the broadcast equipment would almost double by the immediate addition of at least 9 million watts of effective radiated power.  A new 730 foot tower would replace analog towers and equipment that were almost obsolete due to the Federal Communications Commission phase-out of analog facilities. The majority of persons within several miles of the new tower would be subjected to increased radiation levels.

CARE submitted extensive written documentation that the Lake Cedar proposal was not compatible with nearby land uses and did not meet the requirements of the County Zoning Resolution early in the process and prior to the first hearings by the Jefferson County Planning Commission.

Susan Wood, the County planner in charge of the Lake Cedar rezoning, consistently recommended that this application not be approved because the applicant had failed to meet the minimum requirements of County Zoning Resolution Section 17.F.2.b.1 and the TLUP regarding alternative sites. These provisions require that the applicant demonstrate that no other telecommunications site is available to accommodate the equipment or purpose for which a telecommunications tower is proposed before a rezoning can be approved. Lake Cedar failed to identify, contact or present all available alternative sites.

Pursuant to the requirements of its Zoning Resolution, the County hired an independent electrical engineering broadcast consultant, Jim Hart of Hartech, Inc., to render independent opinions regarding technical broadcast issues. Mr. Hart testified and reported to the County on multiple occasions that alternative sites for Lake Cedar’s equipment existed. The owners of available telecommunications sites on Squaw Mountain and Mt. Morrison in Jefferson County appeared and testified that their sites were available and capable of accommodating all of the equipment proposed for the new tower on the Lake Cedar Property. Other site owners provided written information indicating that their sites would also accommodate the Lake Cedar equipment. Any of these alternative sites would have avoided additional adverse effects to Plaintiffs from the Lookout Mountain site and would have involved fewer radiation impacts to persons and businesses.

The Board conducted its first public hearing on July 1, 2003. Of the 581 people who registered on this day, 561 registered against this proposal. A petition against this proposal with over 3,300 individual signatures was presented to the Board. At the hearing, the City of Golden, the Tripp Ranch Homeowners’ Association, Stonebridge and many others presented testimony against this proposal.

The President of the School of Mines filed a letter of support for the concerns of his faculty about interference from tower radiation.  Professors from the Colorado School of Mines detailed how the new tower would harm their technical equipment and research because of the interference. Several professors from the Colorado School of Mines testified about the severe impact that the interference from this radiation would have on their ability to continue to do research.   

At the July 1 hearing, the County's independent consultant, Mr. Hart, found that Squaw Mountain and Mt. Morrison were viable alternative sites.

At the July 1 hearing, two orthopedic oncologists, and a triple board-certified physician who practices at National Jewish Hospital and teaches at CU Health Science Medical School emphatically testified that there is strong medical evidence of significant adverse health risk from the radiation that would result from this proposal. 

The second Board hearing was conducted on July 8, 2003. Again, the vast majority of the testimony was against this proposal. A pediatrician, an occupational medicine physician, more researchers, engineers and other experts testified against this proposal. Residents testified that they were unable to sell their homes because of broadcast tower concerns and that they had spent significant amounts of money trying to reduce the amount of radiation entering their homes. One resident was forced to terminate his business because of the interference.

The hearing was continued by the Board to July 22, 2003.

On July 15, 2003, seven days before public testimony was terminated, Lake Cedar submitted extensive and substantial additional documentation regarding alternative sites and radiation levels that the Plaintiffs and general public were not made aware of and did not have access to until the July 22 hearing. This information should have been submitted earlier in the process in accordance with Zoning Resolution Section 1.G.3.l. The County case planner was unable to provide this information to the County’s independent expert or the public until after public testimony was terminated. As a result, the public, the Plaintiffs and the County’s expert were denied an adequate notice of the details of the rezoning proposal, adequate review of the proposal, and an opportunity to provide responsive comments.

To ensure completeness and to allow adequate public review, County Zoning Resolution Section 1.G.3.l forbids substantial revisions or additions to Lake Cedar’s documents 21 days prior to a public hearing. Upon information and belief, the additional Lake Cedar information submitted on July 15, 2003, was not requested by County staff, the Planning Commission or the Board.

During the hearing, engineer Robert Barrett documented that this proposal violated Zoning Resolution Section 17 F.2.b.2 regarding minimum set back and tower fall, because the towers’ guy wires could fall at a horizontal distance from the tower greater than the vertical height of the tower. Mr. Barrett presented evidence of past damage from guy wires from past failures of towers similar to the proposed tower. Lake Cedar responded that no occupied structures were within a horizontal distance from the tower equal to its vertical height. In fact and as presented to the Board, more than eight private dwellings, three businesses and several high-tension electric line support towers would be within the fall area in the event of tower failure.

The County’s independent expert, Jim Hart, confirmed that radiation levels at the Colorado School of Mines would increase and that radiation levels throughout most of the area around the new tower would increase. Jim Hart verified calculations showing that more occupied residences would experience increased radiation than would experience decreased radiation. Lake Cedar presented a short rebuttal. Without producing any documentation, spokespersons from Lake Cedar for the first time in the entire process asserted that their expert checked 1000 points and confirmed that the radiation would be reduced at 800 points. There was no direct expert testimony provided by Lake Cedar on the subject at the hearing. Lake Cedar’s rebuttal also included new information regarding alternative site analysis, included in the documents submitted to the County seven days before the hearing, but not made available to the public until after the period for public comment had closed.

At the July 22 hearing, the Board orally advised that it had decided to approve the rezoning application and set August 19, 2003, as the date for the issuance of its resolution. Commissioner Sheehan stated that a major consideration for the decision was that the radiation levels would be reduced at most sites, even though no support for Lake Cedar’s claims on this point had been entered into the record or made available to Plaintiffs or the public.

On August 19, 2003, the Board passed a resolution approving the rezoning of the Lake Cedar Property at 21119 Cedar Lake Road. The Written Restrictions adopted were for 21079 Cedar Lake Road. (Exhibits 1 and 2) The resolution did not supply the basis for its findings that the application had complied with the minimum requirements of the Jefferson County Zoning Regulation, including (1) a demonstration through expert testimony that no alternative sites were available to accommodate the equipment proposed for the new tower or (2) a demonstration through expert testimony that debris from a tower collapse would not fall on occupied structures beyond the property line. The Board delegated consideration of interference matters to a third party remediator who is not elected by the citizens of Jefferson County. The Board never addressed concerns about the late submission of substantial information by Lake Cedar or the documented failures to provide adequate notice to many individuals or associations regarding the community meetings and hearings.

As a result of the Board’s failures to comply with its Zoning Regulation, Plaintiffs will be exposed to increased levels of non-ionizing radiation, causing detrimental effects to their (1) health, (2) property values, (3) electronic equipment, and (4) business or governmental operations.

FIRST CLAIM FOR RELIEF

(C.R.C.P. 106(a)(4) Judicial Review of Board’s Actions and C.R.C.P. 65 Preliminary and Permanent Injunction )

Plaintiffs restate and incorporate the allegations of paragraphs 1 -55.

The Board has abused its discretion, acted arbitrarily and capriciously and acted outside the scope of its authority by approving the rezoning of the Lake Cedar Property:

By failing to comply with the nondiscretionary requirement of Zoning Resolution Section 17.F.2.b.1, requiring expert evidence that Lake Cedar demonstrated the nonexistence of alternative sites.

By failing to comply with the nondiscretionary Zoning Resolution Section 17.F.2.b.2 requirement that it find that Lake Cedar demonstrated with expert testimony that the new tower would be sufficiently set back from the property line to ensure that ice-fall or debris from tower failure or collapse would not fall on occupied structures.

By not complying with the Zoning Resolution Section 1.G.3.l by accepting and relying on new information from Lake Cedar submitted only seven days prior to the final public hearing and which (1) was not made available to the public prior to the termination of public comment and (2) had not been explicitly requested by County staff, the County Planning Commission or the Board.

By failing to supply adequate notice of the application and public hearings, as required by Zoning Resolution Sections 1.G.2.c.2 and 1.G.3.o.

By improperly delegating power to an outside interference remediator who would have no accountability to the public.

Pursuant to C.R.C.P.106 and C.R.C.P. 65, Plaintiffs are entitled to preliminary and permanent injunctions enjoining: the operation of the invalid Board act and staying the rezoning resolution; Lake Cedar from proceeding to build the facility; and Jefferson County from issuing any permits to proceed with facilities allowed under the rezoning.

Plaintiffs have no adequate remedy at law, as delay or failure to enjoin the illegal acts of the County and Board, and implementing actions by Lake Cedar, will have the actual and practical effect of impairing and damaging Plaintiffs’ rights. Irreparable harm would occur to the Plaintiffs and manifest injustice would result if Lake Cedar were allowed to proceed with building and operating this location as a high-power broadcast site during the pendency of this appeal.

THEREFORE, Plaintiffs request that the Court: find that the Board acted in an arbitrary and capricious manner, abused its discretion and acted outside the scope of its authority in rezoning the Lake Cedar Property; issue an order setting aside the Board’s Resolution approving the rezoning of the Lake Cedar Property; issue preliminary and permanent injunctions enjoining employees or officials of the County from issuing any permits allowing construction and/or activation of the new tower; and issue preliminary and permanent injunctions barring Lake Cedar, its principals, its employees, its contractors or its agents from proceeding with construction or operation of the new tower.

SECOND CLAIM FOR RELIEF

(Declaratory Judgment, C.R.C.P. 57, C.R.S. § 13-51-101 et seq.)

Plaintiffs restate and incorporate the allegations of paragraphs 1-59.

A genuine controversy exists between Plaintiffs and Defendants for which Plaintiffs are entitled to relief under Rule 57, C.R.C.P.

THEREFORE, Plaintiffs request that the Court: issue a declaratory judgment, finding that Defendants have violated nondiscretionary requirements for rezoning to allow telecommunications uses and that the rezoning is invalid; and that the Court set aside the rezoning.

GENERAL REQUEST FOR RELIEF

THEREFORE, Plaintiffs request that the Court:

  • Set aside the Board’s resolution rezoning the Lake Cedar Property;
  • Declare that the rezoning was arbitrary and capricious, an abuse of discretion and beyond the jurisdiction of the Board;
  • Issue preliminary and permanent injunctions against the issuance of any permits or any other approvals whatsoever by County staff or officials associated with the new tower;
  • Issue preliminary and permanent injunctions against construction and operation of the new tower on the Lake Cedar Property and by Lake Cedar and/or its representatives; and
  • Enter such additional and further relief as the Court deems just and proper.
  • Respectfully submitted this 17h day of September 2003.

For the City of Golden:

Windholz & Associates
James A. Windholz
David S. Williamson

KAPLAN KIRSCH & ROCKWELL LLP
Original signature on file
John Putnam

For the Individuals, Homeowner Associations and Corporate Plaintiffs:

CARNEY LAW OFFICE
Original signature on file
Deborah Carney

Plaintiffs’ Addresses:
City of Golden
c/o Windholz & Associates
1650 38th Street, Suite 103W
Boulder, CO 80301

Canyon Area Residents for the Environment, Inc.
25958 Genesee Trail Road, PMB-203, Golden, CO 80401-5701

Paradise Hills Homeowner Association
c/o Sandy Harnage, 25754 Bristlecone, Golden, CO 80401

Lookout Mountain Homeowner Associatio, c/o Susan Atwood
630 Columbine Ave, Golden, CO 80401

Stonebridge at Eagleridge Master Owner’s Association, Inc.
603 Park Point Drive, Suite 20, Golden, CO 80401

Pacific Millimeter Products, Inc, Al Hislop
64 S. Lookout Mountain Circle, Golden, CO 80401

Monnie Elizabeth and M. Robert D. Barrett
792 Aspen Road,, Golden, CO 80401

Eddie and Cheryl Alianiello
822 Aspen Road, Golden, CO 80401

Jim and Christina Shea
812 Aspen Road, Golden, CO 80401

Guenter Grothe
425 Colorow Road, Golden, Co. 80401

Dr. Ron Larson
21547 Mountsfield Dr, Golden, CO 80401

Brent and Ellie Anderson
813 Rabbit Run Dr., Golden, CO 80401

Hal and Mary Shelton
850 Shelton Road, Golden, CO 80401

Roger and Eva Colton
1949 Mt. Zion Drive, Golden, CO 80401

Jean and Paul Queneau
1954 Mt. Zion Drive, Golden, CO 80401

Roger Mattson
481 Crawford Street, Golden, CO 80401

Kathleen A. Sander and Gary Olhoeft
1818 Smith Road, Golden, CO 80401

Marston and Theresa Shelton
19054 Eagle Ridge Drive, Golden, CO 80401


To review a summary of testimony, click on the following links:

Many documents and details are available at www.c-a-r-e.org.