© 2004 Updated: 9/17/04

August 30, 2004

Jefferson County Commissioners, Michelle Lawrence, Rick Sheehan and Patricia Holloway

In care of
Danica Snyder and Steve Brown-Case Manager
Planning and Zoning Department
100 Jefferson County Parkway, Suite 3550
Golden, CO 80419

RE: Lake Cedar Group

Via fax to: Danica Snyder and Steve Brown: 303-271-8744

Dear Commissioners,

I ask that you reconsider before taking your final vote on the resolution on Lake Cedar Group. With respect, I believe that there are substantial indications that two or more of you inadvertently or deliberately decided this rezoning prior to the original public hearings and/or based upon information outside the record submitted ex parte by Lake Cedar Group through their lobbyists or people influenced by their lobbyists. I believe that both "contract zoning" and extensive ex parte discussions took place after the application was filed. I base this opinion on a number of events, observations, documents and comments.

"Settlement" negotiated with Lake Cedar Group on FCC Preemption Petition and Lake Cedar Group District Court Appeal and ex parte lobbying done outside the record.

Some sort of arrangement was worked out between Lake Cedar Group and Jefferson County as part of the settlement negotiated with Lake Cedar Group on the Lake Cedar Group petition asking that the FCC preempt Jefferson County and the Lake Cedar Group Section 106 appeal that was awaiting decision by Judge Anderson on the briefs. CARE was a party in that case. Lake Cedar Group used the threat of preemption and its lawsuit to induce this Commission to disregard the property rights of its residents and the policies and zoning resolutions.

After the initial August 2003 BCC approval of the Lake Cedar Group proposal, Commissioner Holloway spoke before the Jefferson County Republican Men’s Club and explained her reasoning for her vote to approve was largely based on the preemption threat because she wanted to save the taxpayer’s money from future lawsuits that would have occurred if rezoning had again been denied. My husband and many others in addition to myself heard this comment.

There are numerous references within the record of "discussions" between Lake Cedar Group and Jefferson County that did not take place in public hearings. Examples of some of these discussions that predated January 4, 2001 are:

Source-Feb 2002-KMGH-TV filing with FCC Reasons requiring additional time to construct, steps taken to resolve problems preventing timely construction and anticipated completion date.

OOn January 11, 2001, Edward Hummers (Washington DC counsel for LCG) wrote a letter to Marily Nixon, Assistant County Attorney, which confirmed that discussions about preemption and the proposed rezoning had taken place. The public was not present in these discussions.

Lake Cedar Group’s attorney, Edward Hummers, Jr. wrote to the FCC Chief of Mass Media asking that the preemption petition be put on hold:

Notes within the District Court file on the Lake Cedar Group case show that the lawsuit against the county was dropped and the FCC petition by the Lake Cedar Group was stayed at the request of Jefferson County. After all the briefs were submitted, Lake Cedar Group dismissed its District Court case with the consent of Jefferson County and the objection of CARE.

Further evidence of these ex parte discussions was the commencement of Lake Cedar Group RF monitoring reports that were sent to Jefferson County by Lake Cedar Group beginning in September 2001. Jefferson County records show that Jefferson County received the first report on October 15, 2001. R 7643. These activities were kept secret from the public. Not only was CARE not consulted or provided reports but also Jeffco did not even provide reports to CARE in response to CARE’s 2002 Open Records Request that should have resulted in production of these reports.

It is clear that discussions were taking place with Jefferson County two years before this commission heard any evidence from its citizens. One of Lake Cedar Group’s lobbyists, Kayser Cochran of Grinnell Group, sent the following email to Jeffco Planner, Susan Wood on January 28, 2002 that refers to ongoing discussions and FCC pressure:

KMGH-TV, a Lake Cedar Group member, documented ex parte discussions when it filed the following statement with the FCC in February 2002 explaining the delay in tower construction. The FCC Form asks the applicant to state the reasons requiring additional time to construct, steps taken to resolve problems preventing timely construction and anticipated completion date. KMCH replied:

After seeing KMGH’s FCC filing, I emailed the Zoning Administrator and on March 14, 2002 asked what was going on.

The Record reflects that no public notices on the Lake Cedar Group proposal were sent out until April 2002.

Commissioner Sheehan, your calendar documents that on May 10, 2002 and on May 31, 2002, you had breakfast with officials of a former Lake Cedar Group member, KWGN, at the Brown Palace. (KWGN has filed comments in this rezoning urging approval of the LCG proposal)

Commissioner Sheehan, you invited me to your swearing in ceremony the second week in January 2003. I attended and recall that after you were sworn in as a reelected commissioner, you came over to where I was sitting in the atrium and told me a number of things that shocked me because these statements indicated not only extensive ex parte contact between Lake Cedar Group and you but that you had made up your mind to approve the new Lake Cedar Group proposal even though you had not yet heard testimony in this case. Your statements indicated that someone advocating Lake Cedar Group’s positions had talked to you at such length and detail that you were phrasing your words about the Lake Cedar Group proposal in exactly the same words that Lake Cedar Group’s lobbyists repeatedly stated during the community meetings and then stated again at the hearings that later occurred before the County Planning Commission and then this commission.

You told me that CARE had better settle with Lake Cedar Group because LCG’s proposal addressed all the previous concerns. You told me that our residents really did not care about health issues, that health was just a bluff because we really wanted higher property values. (When you said that, I already knew that CSU was attempting to do an extensive study on Lookout Mountain on this issue but had requested that I not mention this to anyone.)

I said very little because as an attorney for CARE in a matter before a member of quasijudicial commission that was about to consider this rezoning, it would not have been proper for me to argue CARE’s case unless my comments were open to the public and on the record. It was very clear to me that Lake Cedar Group’s lobbyists were not following the same rules. I immediately reported what you said to me to the CARE Tower Steering Committee. I hoped that your ultimate decision would be guided by the facts presented in public hearings.

Six months later, on July 1, 2003, at the first public hearing before this commission, Lake Cedar Group’s lobbyist/spokesman, Fred Neihaus referenced these ex parte discussions and "dialogues" with the county two years prior to public hearings.

Marv Rockford, another Lake Cedar Group spokesman also referred to these ex parte negotiations during his testimony:

It is clear that Lake Cedar Group used a number of lobbyists to attempt to influence this commission’s vote. Although lobbyists are required to track the amount of money paid to them, the lobbyists for Lake Cedar Group have not disclosed these figures.

In addition to the many lobbying firms that appear of record in the Lake Cedar Group case, I have learned of another with heavy connections to the Republican Party. Capitol Solutions, lists Lake Cedar Group as a major client:

Lake Cedar Group, LLC

http://www.capitol-solutions.com/clients_lakecedar.html

Capitol Solutions also does extensive work for the Republican Party:

•Fund for Colorado's Future

•Senate Republican Majority Fund

http://www.capitol-solutions.com/clients_special.html

Although it is very clear that extensive lobbying has occurred, my attempts to obtain all the records that Jefferson County has that relate to the Lake Cedar Group case have been blocked by your insistence that CARE must pay more than $200,000 to obtain any emails regarding the towers that did not make it to the file.

My conclusion that this decision was biased and based on information and factors outside the record is further supported in the discrepancies between the way your commission evaluated the issues and evidence in the Pinnacle Tower’s proposed rezoning of Eldorado Mountain with the way identical issues and evidence were evaluated in this hearing. As one of many examples, in the Pinnacle Towers case, Commissioner Sheehan, you were extremely concerned about the impacts of interference on high tech industry and government research. In this case, you could not have cared less. After I provided Jeffco staff with an extensive contact list of impacted government agencies and was told that Jeffco staff would contact and investigate discuss the impact with these government officials, nothing happened. In the Pinnacle Towers case, this commission did not want a tower near Jefferson County Open space and did not want noisy diesel generators but in this case, these same circumstances were ignored.

Commissioner Lawrence, the Digital Users Group AVS forum reported your candid admission right after you voted that a different board of county commissioners would have denied Lake Cedar Group’s rezoning proposal. This report appears on their website on August 19, 2004.

color="#333399" size="4">AVS forum

Please reconsider your decision.

Sincerely,

Deborah Carney
Attorney for CARE