© 2004 Updated: 9/22/04


Tribune’s KWGN continues litigation against JeffCo

April 2003: JeffCo Zoning Administrator Tim Carl denied application for adding a Tribune KWGN digital TV antenna. The JeffCo Board of Adjustment denied Tribune’s appeal on July 24, 2002. Carl claimed digital is not the "same use" as analog television and adding DTV would be an expansion of non-conforming land use.

On August 26, Carl dropped the "same use" concern and permitted a tower height "loophole" to override regulations of "non-conforming" land use. KWGN engineers and attorneys claim they reduced the height of a "back up" tower to 198.6-foot, below the 200 feet limit for low power additions. The Board of Adjustment again backed Tim Carl’s permission for expansion when CARE appealed the permit in November, 2002.

KWGN is continuing earlier litigation against JeffCo for denial of adding DTV on the higher tower of the non-conforming tower site. CARE engineer Al Hislop suggests, "KWGN would prefer DTV on the higher tower." Assistant County Attorney Tim Cox agreed in August, 2002, to let Channel 2 install a permanent high power broadcast, digital TV antenna to an auxiliary tower on legal nonconforming land. Tribune Corporation agreed to drop non-conforming litigation against the county."

Cox did NOT agree to allow the installation of high-power DTV in exchange for legal settlement. "It was Zoning Administrator Tim Carl who approved KWGN’s latest antenna proposal… and Tribune Corporation did not agree to drop its nonconforming litigation against the county. Both lawsuits filed by KWGN remain active and the County has moved to dismiss 17 or KWGN’s 18 claims," Cox said.

To protect the Mount Vernon Canyon community from this unethical corporate behavior, enabled by JeffCo administrator Carl, Canyon Area Residents for the Environment is suing Carl, the JeffCo Board of Adjustment, Board of County Commissioners, and KWGN. The city of Denver which owns and operates the historic Buffalo Bill Grave and Pahaska Lodge (500,000 annual visitors) testified against Tribune’s quest to add DTV on the tower. Denver, however, chose not to join CARE in this litigation.

The Tribune antenna farm is within 500 feet of the grave, next to a Clear Channel Communications antenna tower site and adjacent to the historic Lariat Trail and Jefferson County Open Space.

Tribune’s intent for continuing the litigation could be to wear down JeffCo staff and drain the donation funding of CARE. Tribune is one of the leading media giants campaigning for removal of FCC limitations on cross media ownership of newspapers and broadcast within each metro market.

CARE appealed the permit to the Board of Adjustment that deals with land use restrictions "on location, access, heights, setbacks, water and sewer facilities, public improvements, and any other reasonable stipulations deemed necessary for the protection of the health, safety and welfare of the citizens of Jefferson County."

Channels 4 and 2 appeals to the BOA for denial of adding digital transmitters were not overturned in 2001 and 2002 based on analog and digital television are not the "same use" required for exchanges on non-conforming land use. The Zoning Administrator apparently changed his mind.

CARE attorneys Deb Carney and Scott Albertson, world-class engineer Al Hislop, Denver Parks chief planner Rod Lister, citizens Karen Bull and Patti Roberts testified at the Board of Adjustment (BOA) hearing on November 6, 2002.

Seven highly paid Tribune Corporation employees listened confidently as the citizens explained the descrepancy between JeffCo zoning resolutions and corrupt behavior of the FCC.

Tribune claims the 205-feet tall "back-up" antenna tower shrank to 198.6 feet. The corporation expects to replace a rarely used, low-power, analog antenna tower with a high power digital device.

Deb Carney testified that this does not comply as a "same use" exchange at the non-conforming site. "There is no JeffCo regulation that allows broadcasters to reduce height of a tower to add high power devices… This tower has never been used for 24-hour daily broadcast… FCC records indicated this tower is dismantled… JeffCo and CARE engineers have consistently measured radiation exceeding legal limits… Adding eight times more radiation will exceed the limits stated by JeffCo law… Colorado law supports eliminating non-conforming use that causes harmful effects to adjacent neighborhoods at earliest possible time… This permit would extend the pollution forever… The 1991 resolution for this site distinctly prevents adding equipment in the building to support more electromagnetic power yet Mr. Carl issued a building permit… This permit violates state and county laws…"

In 1971, the JeffCo BOA granted permission for a 450-feet tribune tower "to protect historic Buffalo Bill Grave and Museum from excessive radiation." Rod Lister, Director of Denver Parks Planning, testified on Nov. 6 with a letter from James Mejia, Manager of City and County of Denver Department of Parks & Recreation requested overturning the permit.

"We are concerned about the project’s effects on both the health and safety of visitors and employees at Lookout Mountain Park and Buffalo Bill Grave Museum, as well as impact on electronic equipment… the RF exposure from the digital addition to the KWGN tower will be 8 times higher than current levels."

The site has 500,000 annual visitors and 25 full and part time workers (two of whom live on the site)… closed circuit video surveillance system and nighttime security system and fire alarm system that suffer from RF interference.

Lookout Mountain resident Karen Bull testified that there were no broadcast towers lower than 200-feet when she served as a volunteer citizen advisor for the JeffCo Telecom Land Use Plan and zoning resolutions 1985-93. "Broadcast towers are high to keep radiation from people. Citizens and the county needed better control of the broadcasters who did whatever they wanted whenever, without permission on non-conforming sites… The intent of allowing anntennas to be added to towers lower than 200-foot was to serve the low-power land mobile industry… Please understand, the citizens concern at the time was high power broadcasters.… This permit violates the intent of the law and should be overturned…"

Bull was visibly shaken by many rude interruptions by BOA member Richard Ingram. "In all my years of community service as a citizen, I have never been badgered like that before," she said.

Electrical Engineer Al Hislop carefully explained the RF radiation measurement process: He said pressure to get digital TV antennas up and running drove local FCC officials to "change the rules on measuring radiation… (without due process)… ignoring the methods specified in Bulletin OST 65, adopted by the FCC and Jefferson County… While the power of two stations was turned down to gain compliance, the applicant measured 85% of allowable radiation and the local FCC official decided to eliminate JeffCo’s measurement of 116.5% in the averaging process… There is no justification for this artificial means to enable Tribune’s digital antenna …" He compared it to determining the amount of sunscreen to protect your skin by measuring the sun’s ultraviolet rays in the shade.

Land use specialist attorney Scott Albertson explained why the Colorado Court of Appeals backed removal of a firehouse carwash on 6th Avenue in Denver. "Continuation of non-conforming land use is disfavored because they reduce the effectiveness of zoning ordinanaces, depress property values, and contibute to urban blight. Nonconforming uses should be reduced to conformity as speedily as possible. Zoning ordinances allowing continuation of non-conforming uses should be strictly construed. If there is debate between ordinances, the law should err on the side of denying continued use."

In spite of many rude interruptions by Richard Ingram, Patti Roberts testified that the FCC would not protect citizens from radio frequency interference caused by the increase. County attorney Tim Cox interrupted to end the hearing at 2 pm.

Elderly BOA members Richard Eckert (BOA since 1990) and Richard Ingram (BOA since1973) never understood how the county land use regulations overrule corrupt FCC measurements of radio frequency radiation. The BOA decision will be announced on December 4. CARE is prepared to appeal the expected BOA approval in District Court.

August, 2002

JeffCo permits expansion of Tribune’s KWGN-Channel 2 tower Zoning Administrator Tim Carl resisted Tribune Corporation’s constant requests to expand and enlarge use of its nonconforming tower site adjacent to Buffalo Bill’s Grave. The company took denials for adding DTV antennas to the Board of Adjustment, which supported Carl’s decision on July 24, 2002. Mount Vernon Canyon volunteers and attorneys testified in support of Carl.

On August 26, Carl issued a permit for KWGN to add a 450,000 watt DTV antenna to an auxiliary tower that measures 18 inches short of 200 feet in height. Though the tower is nonconforming and broadcast use cannot be extended or expanded, a loophole in the JeffCo zoning regulations allows the addition of antennas to nonconforming towers shorter than 200 feet.

This would be the third most powerful transmitter on Lookout Mountain, and would be located very close to a known RF "Hot Spot." JeffCo has acquired its own RF monitoring equipment and repeatedly recorded RF levels exceeding 100% of the Maximum Permissible Exposure. JeffCo issued a Notice of Zoning Violation for excessive RF exposure.

By issuing a permit to add an antenna, Jefferson County chose violates its own law. The permit could set a precedent for more radiation on Lookout Mountain. Owners of tall towers could be encouraged to cut their towers down to less than 200 feet and install new, higher power DTV antennas on the shortened towers.

Click here to read earlier developments in this story.