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
Canyon Area Residents for the Environment (CARE)
-Rezoning Application of: Lake Cedar Group Case Number: 02-111694RZ
-Site Development Plan of: Lake Cedar Group Case Number: 03-116343SD
District Court Case Number: 03CV3045
Objection and Comments: Canyon Area Residents for the Environment (CARE)
Via fax to: Danica Snyder and Steve Brown: 303-271-8744
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 Mens Club and explained her reasoning for her vote to approve was largely based on the preemption threat because she wanted to save the taxpayers 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:
After informal discussions with Jefferson County officials and an investigation of alternatives, on January 4, 2001, LCG requested the District Court to dismiss the appeal and asked the (FCC) Commission to withhold action on the preemption...
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 Groups attorney, Edward Hummers, Jr. wrote to the FCC Chief of Mass Media asking that the preemption petition be put on hold:
"This is to advise you that Lake Cedar Group is presently dismissing its pending judicial appeal of the Zoning Decision and plans to file a new zoning application for a revised transmitting facility on Lookout Mountain. It is therefore respectfully requested that the Commission withhold action on the Petition pending a final decision by Jefferson County on the re-filed zoning application."
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 CAREs 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 Groups 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:
Can you send a letter to Pete about our discussions and agreement with Jeffco Planning not to submit for a pre-application review. We need to show the FCC that we are moving forward, but that there's a good reason they haven't seen a pre-app from us by now. R 11284
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 informal discussions with Jefferson County officials and an investigation of alternatives, on January 4, 2001, LCG requested the District Court to dismiss the appeal and asked the Commission to withhold action on the preemption..... LCG is willing to enter into an agreement with Jeffco to provide the funding for on-going monitoring and enhanced enforcement measures. Pursuant to the normal Jeffco procedures, LCG has been prepared to file, before now, its "Pre-Application" rezoning proposal with the Jeffco Planning Commission....owing to staffing problems, the Jeffco staff asked LCG not to make this filing and to proceed directly with the formal zoning application. ..LCG has begun the formal rezoning process and the application is ready for filing.
LCG has been advised that the transmission tower and required extra heavy guy cables must be specially fabricated because of the heavy load the tower must bear and that the design, fabrication and erection thereof will take at least one year. R 11294-9
After seeing KMGHs FCC filing, I emailed the Zoning Administrator and on March 14, 2002 asked what was going on.
LCG FCC filings-re: discussions with JEffco about filing a new application, attaching ch 7 filing. LCG has told the FCC taht (sic) April 2 and 4 have been set as dates for community meetings but no one has heard anything about such meetings. Have there been meetings with LCG and Jeffco. If so, who are they meeting with and why haven't we been provided with information? R 11329
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 Groups 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 Groups 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 LCGs 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 CAREs case unless my comments were open to the public and on the record. It was very clear to me that Lake Cedar Groups 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 Groups lobbyist/spokesman, Fred Neihaus referenced these ex parte discussions and "dialogues" with the county two years prior to public hearings.
Two years ago when we approached the County to start this process we made a commitment to the County and to you the commissioners, a commitment that we would submit a credible, straight-forward and comprehensive proposal, one which was significant and meaningful...Throughout our dialogue with the County and during public meetings we also acknowledged that we would establish a framework for accountability by LCG which was based not on trust.... R 11530.
Marv Rockford, another Lake Cedar Group spokesman also referred to these ex parte negotiations during his testimony:
For more than two years we have been voluntarily conducting monthly monitoring of the RF levels in the area and sharing the results with the County. ....No Lake Cedar station has ever been out of compliance with your RF standards. R 11557
You have asked us to reconsider, revise and redesign. And we have worked very hard to comply with your wishes. This proposal is the result of all that discussion and work. It represents what the parties can accomplish through compromise. R 11564
It is clear that Lake Cedar Group used a number of lobbyists to attempt to influence this commissions 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
Lake Cedar is a consortium of local television broadcast affiliate stations that includes KCNC/4 (CBS), Rocky Mountain PBS/6, KMGH/7 (ABC), KUSA/9 (NBC) and UPN 20. Capitol Solutions provides comprehensive federal, state, and local lobbying services
Capitol Solutions also does extensive work for the Republican Party:
Fund for Colorado's Future
A Colorado political action committee established to ensure Republican Majorities in the Colorado House of Representatives. Capitol Solutions is providing comprehensive PAC management and fundraising activities for the Fund.
Senate Republican Majority Fund
Established in 1980 to ensure Republican majorities in the Colorado Senate, Capitol Solutions was sought after by the Senate Republican Leadership to coordinate all fundraising activities of the Colorado Senate Republicans, including a large donor fundraiser with former Speaker of the House, Newt Gingrich.
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 Towers 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 Groups rezoning proposal. This report appears on their website on August 19, 2004.
color="#333399" size="4">AVS forum
The commissioners made no comments in taking the vote, which turned aside community pleas to wait until May 2005, when Colorado State University completes a study of health effects of tower radiation.
The above is from the Denver Post. Note: The area in red is nothing more then a smoke screen. Why. Because this hearing would be before three different commissioners. In a short conversation I had with Ms. Lawrence she agreed that the out come would probably have been different had the hearing been in front of a different board (even if the CSU's study showed no ill effects my guess is they would still reject it). I thanked both her and Ms Holloway for still being on the board for this hearing. Patricia stated that the decision relative to RF/cancer was really a tough one for her as she lost her father to cancer. However she said her decision is what her father would have wanted.
They all get my thanks.
Last edited by Lawood on 08-18-04 at 10:19 PM
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Marv Rockford closed out the evening by restating his opening that nothing had changed since last year and asked the commissioners to again OK the plan. There was some very brief discussion as to whether to take a vote and the three agreed it was time, so Ms. Holloway worked with the attorney to get the correct wording for a resolution and the vote was taken. All three voted in favor. Since it was late, the (S)CARE folks headed quietly for the exits and the LCG group stayed a bit. Ms. Holloway and Ms. Lawrence came down to the group and expressed their relief that it was over and were very friendly with all of us. Leonard already commented on some of the things they said. It was an interesting few minutes to see everyone in such a relieved mood.
Please reconsider your decision.
Attorney for CARE