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post #811 of 8477 Old 04-18-2007, 03:49 PM
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Guys,
I hate to poo-poo the party, but there's serious issues still to be resolved before construction.

- The building for one. Underground or above (Above ground is cheaper, but underground is in the LCGII proposal)
- Antennas - Omni or directional (LCG would rather have omni for better coverage, but directional are in the LCGII also)

What would you do? Build an above ground building only to have to rebuild it?
Order Omni antennas only to have to reinstall directional later?
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post #812 of 8477 Old 04-18-2007, 04:12 PM
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My guess is that the LCG will likely build pretty much along the lines of the proposal as approved by the BOCC (i.e. underground) with the possible exception of turning over the property from the old towers for Open Space. I think if they deviate from the approved plan they are likely to open the door for additional appeals and delays in JJ's court. I think that is what JJ meant when he said he is not sure the new law is as sweeping as the LCG presented. I think he wants to maintain jurisdiction over any future cases. that are brought. Whether that is possible or could be overruled by a Federal Court remains to be seen, but if the LCG builds according to the plan presented to the BOCC, I think there are not grounds for an appeal in his court.

Just my $0.02, although I must be open and admit IANAL and have never slept in a Holiday Inn Express.

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post #813 of 8477 Old 04-18-2007, 04:14 PM
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post #814 of 8477 Old 04-18-2007, 04:34 PM
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Quote:
Originally Posted by santellavision View Post

Article in the Rocky. Doesn't say much.
]

A dramatic understatement if ever there was one. Especially after 10 or so years of back and forth on this issue, it makes it sound like all of the parties involved are now just 'one big happy family'.

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post #815 of 8477 Old 04-18-2007, 04:42 PM
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Build the equipment vault underground. There's lots of monetary horsepower behind LCG so spend the cash to make the site look nice. It's a more complex project but it's a one time expense and there's probably a tax write-off somewhere. They better start now.

They can buy any antenna they want that doesn't cause the RF power density to exceed Government RF exposure limits.

--- CHAS

If it ain't broke, fix it till it is.
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post #816 of 8477 Old 04-18-2007, 04:47 PM
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I think LCG might be "SMART" to build according to LCG2, just to prevent any possible lawsuits from being brought. Some of the "other provisions" (monitoring of RF for example) could be dropped.

You CAN put antennas on your owned and/or controlled property...
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post #817 of 8477 Old 04-19-2007, 05:29 AM
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Well if I remember correctly the underground equipment building was scheduled to take about a year to construct, so that goes along with everyone's prediction that LCG will go live with digital from Lookout on the day analog NTSC is shut off, and not before.

Also, recall the Federal legislation covered only construction of the towers; JeffCo is free to apply whatever building code regulations they feel like (within the limits of the law) to the associated equipment building(s). So for example, if it is built underground, expect them to require soil tests, testimony on whether digging could possibly alter drainage and cause landslides elsewhere on the mountain, etc. If the buildings are built above ground, expect them to require engineering reports as far as roof snow loads, power, ADA accessibility, etc.

The game's not over by a longshot.
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post #818 of 8477 Old 04-19-2007, 05:31 AM
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I've got JJ's order if anyone wants to read it. (It's a PDF)

Judge Jackson's Final Order
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post #819 of 8477 Old 04-19-2007, 06:27 AM
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Quote:
Originally Posted by santellavision View Post

I've got JJ's order if anyone wants to read it. (It's a PDF)

Judge Jackson's Final Order

Interesting that he thinks the Jeffco BOCC decision makes 109-266 "moot". He gives zero detail as to why he thinks 109-266 is narrower than a straightforward reading would indicate. Strange logic.

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post #820 of 8477 Old 04-19-2007, 08:00 AM
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That reads like a judge who 'enjoyed' being the one in control of the situation, and now as someone who is reluctant to give up that control due to any Federal Law. His basic claim is still that only his court is still qualified to make the final decision. (My translation as one non lawyer to the non lawyers here "It's my ball and we play by my rules or I will take my ball and go home")

Any way you read it though, it looks like the LCG has no more excuses other than to proceed with the construction according to the plan they presented to the BOCC.

John M
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post #821 of 8477 Old 04-19-2007, 08:06 AM
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Hey Ernie - is it safe to ask LCG when the celebration BBQ will be yet?

You are indeed a wise man! - TotallyPreWired
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post #822 of 8477 Old 04-19-2007, 08:15 AM
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Ernie, thanks for the JJ link.

After I read JJ's decision, it just amazes me how this guy thinks. He denied LCG's motion to lift the injunction for two reasons which, if you read his statements literally, each stand on their own.

First, he dismisses Public Law 109-266 as not preempting JeffCo's zoning authority "except for its specific and limited terms". He gives no detail regarding what those specific and limited terms are. IMO, a court cannot state that a law is not applicable to an action before it without explaining its non-applicability. So this first reason to deny LCG's motion is the equivalent of "cause I said so".

JJ then goes on and states for his second reason that since JeffCo has now approved the rezoning, they have merely taken the action he ordered them to do last year (make a decision) and, since that decision grants LCG's rezoning request, the injunction can now be lifted.

Had JeffCo not approved LCG's rezoning request (considering they, sCARE, and LCG all had attorneys at their disposal who clearly concluded Public Law 109-266 did preempt local authority to deny LCG's rezoing request), JJ evidently would have denied LCG's motion on the basis of his first, unexplained reason alone. If I'm sCARE and the BOCC, I would be kicking myself right now for approving the rezoning request as it is evident from JJ's convoluted thought process that he would have denied lifting the injunction considering Public Law 109-266 as the sole factor.

JJ evidently believes that all of the attorneys who worked on this issue, including those who wrote it, are not as all knowing and omniscent as he is. Perhaps JJ is Carnac The Magnificent reincarnated.

As kind of a meaningless afterthought, Public Law 109-266 is one sentence, containing 113 words.
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post #823 of 8477 Old 04-19-2007, 08:15 AM
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Quote:
Originally Posted by kucharsk View Post

Also, recall the Federal legislation covered only construction of the towers; JeffCo is free to apply whatever building code regulations they feel like (within the limits of the law) to the associated equipment building(s).

I'm sorry but the above is incorrect. PL 109-266 includes "and all accompanying facilities and services associated with such digital television broadcasts". As long as LGC follows UBC (or is it now IBC) they are covered.

# Matt
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post #824 of 8477 Old 04-19-2007, 08:41 AM
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Quote:
Originally Posted by milehighmike View Post

Had JeffCo not approved LCG's rezoning request (considering they, sCARE, and LCG all had attorneys at their disposal who clearly concluded Public Law 109-266 did preempt local authority to deny LCG's rezoing request), JJ evidently would have denied LCG's motion on the basis of his first, unexplained reason alone.

Taking his words literally, yes. But I don't think he would have been so bold as that, knowing that LCG would then go straight to Federal Court where a judge would have quickly affirmed all of their rights under 109-266.

No, this ruling and the BOCC "approval" were a coordinated action to get Jeffco the best they could hope for after 109-266 - enforcing the additional conditions on LCG2. I'm not saying that actually discussed it together, but clearly BOCC was signalling JJ as to what they wanted.

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post #825 of 8477 Old 04-19-2007, 10:28 AM
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That Judge is a piece of work. It looks to me that he went out of his way - with obviously no supporting justification - to say that the rezoning was approved so LCG must follow the LCG2 plans and honor that agreement. Somehow he thinks the JeffCo rezoning supersedes SB4092. IANAL but it seems to me that his ruling is a thinly veiled attempt to make sure that JeffCo has full authority over the process. Awhile back I argued that all this maneuvering by the BCC was to try and salvage as much authority as they could (ie, building permits, etc) and evidently JJ came to their aid with his 2 cents. Given that he's a JeffCo judge I'm not really surprised. Then again if he is correct then Carney's 10th amendment argument against SB4092 is meaningless. Seems to me his ruling further slammed the scare door shut.

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post #826 of 8477 Old 04-19-2007, 11:08 AM
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Quote:
Originally Posted by kucharsk View Post

Well if I remember correctly the underground equipment building was scheduled to take about a year to construct, so that goes along with everyone's prediction that LCG will go live with digital from Lookout on the day analog NTSC is shut off, and not before.

Also, recall the Federal legislation covered only construction of the towers; JeffCo is free to apply whatever building code regulations they feel like (within the limits of the law) to the associated equipment building(s). So for example, if it is built underground, expect them to require soil tests, testimony on whether digging could possibly alter drainage and cause landslides elsewhere on the mountain, etc. If the buildings are built above ground, expect them to require engineering reports as far as roof snow loads, power, ADA accessibility, etc.

The game's not over by a longshot.

Huh? The injunction is lifted. Game over. The property is re-zoned and the building dept. cannot withhold the building permit. Of course, you need to meet code, but you just have to meet code, not argue over drainage ramifications. Those discussions are over unless the LCG wishes to submit modified plans to the county. Perhaps LCG will just build a modified version without a permit, inviting future legal action. I just don't think that will happen. LCG has spent enough on legal costs. I believe the LCGII proposal will go up as submitted.

As Geof and JM pointed out, R. Brooke Jackson is really something. He takes a jab at the federal law and passes the buck onto the BCC. However, he finally did vacate the stay. I am glad we have seen the last of him and his "with all due haste" comments.

Don
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post #827 of 8477 Old 04-19-2007, 11:36 AM
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I guess I have a different reading of this.

Judge Jackson said that he denied LCG's motion to dismiss CARE's lawsuit because the motion to dismiss was moot. If Judge Jackson were to have made any official determination on the Public Law, then that determination would be what the opposition could appeal. By not ruling on the Public Law, he basically said that the rezoning was done properly, so the Stay is lifted. This is the most expedient ruling he could have made, in my opinion.

(By expedient I mean least likely to be challenged any further, so that LCG can build the facility without legal issues getting in the way. So long as LCG follows the rezoning, there will probably be no more lawsuits over them. If they choose to say the Public Law gives them the right to build what they want how they want, then there may be further challenges, who knows?)

-Wabisabi (IANAL either)
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post #828 of 8477 Old 04-19-2007, 01:08 PM
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Quote:
Originally Posted by wabisabi View Post

I guess I have a different reading of this.

Judge Jackson said that he denied LCG's motion to dismiss CARE's lawsuit because the motion to dismiss was moot. If Judge Jackson were to have made any official determination on the Public Law, then that determination would be what the opposition could appeal. By not ruling on the Public Law, he basically said that the rezoning was done properly, so the Stay is lifted. This is the most expedient ruling he could have made, in my opinion.

(By expedient I mean least likely to be challenged any further, so that LCG can build the facility without legal issues getting in the way. So long as LCG follows the rezoning, there will probably be no more lawsuits over them. If they choose to say the Public Law gives them the right to build what they want how they want, then there may be further challenges, who knows?)

-Wabisabi (IANAL either)

I would agree with you if he had left out the statement "First, the act does not sweep as broadly as Lake Cedar claims. The act does not purport to preempt the Board's zoning authority except on its specific and limited terms." I think he overstepped on that statement. He could have left it out and ruled that the property was rezoned, the Federal Law impact was a mute point and the construction could begin just as you state. I think that quotation was a veiled attempt to actually make a "determination on Public Law" except he worded it in such a way that it would not be binding or provide (S)CARE etc. any additional talking points in any future legal action. (IANAL either, so this is just my own speculation). Maybe one of us should stay at a Holiday Inn Express tonight and let us know the 'real' answer.

John M
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post #829 of 8477 Old 04-19-2007, 01:43 PM
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Interesting read .. and I agree with wabi's color commentary.

All of JJ's efforts (or lack thereof) for the past year + was to get the BOCC to confirm the rezoning approval and not let them deny the rezoning w/o competent supporting evidence. Voting 'No' (or Hell No!) without justification is what they tried to do. My analogy is that JJ is like a parent trying to get an older child (BOCC) to act like a responsible adult.

There's two things at the end of the ruling that make it a great read:
  1. Quote:


    "the Court now enters its final order and judgment vacating its prior stay order in case 03CV3045, affirming the decision of the Board as expressed in Resolution No. CC07-118, and denying any and all remaining motions or challenges to the Board's decision."

    So I guess approving the rezoning 3 times is the charm. There should be no more voting on the rezoning application.
  2. Quote:


    "The Court awards the Board its costs against the plaintiffs in 03CV3045 as provided by law."

    Deb, sCARE, and cronies have to pay the BOCC their court costs.

JJ is back to being a good guy in my book (or at least Switzerland)
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post #830 of 8477 Old 04-19-2007, 02:38 PM
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So....is the tower up yet?
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post #831 of 8477 Old 04-19-2007, 06:13 PM
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Quote:
Originally Posted by flood222 View Post

So....is the tower up yet?

Sure, just close your eyes and click you heels together.... and repeat "There's no place like home. There's no place like home".........

John M
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post #832 of 8477 Old 04-19-2007, 08:26 PM
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Quote:
Originally Posted by RonAuger View Post

Deb, sCARE, and cronies have to pay the BOCC their court costs.

If this is true, I will be very happy!
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post #833 of 8477 Old 04-19-2007, 08:31 PM
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Wouldn't they also have to pay LCG's legal fees ?

You CAN put antennas on your owned and/or controlled property...
http://www.fcc.gov/mb/facts/otard.html

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post #834 of 8477 Old 04-19-2007, 09:36 PM
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sCARE finally posted a response to JJ's ruling. (They're still bitching - get a clue, it's over)

http://www.c-a-r-e.org/

Also, a story in the Post.

http://www.denverpost.com/search/ci_5699316
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post #835 of 8477 Old 04-19-2007, 09:58 PM
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Quote:


Unfortunately, the issue is still unresolved.

?? I don't know, it seems resolved to me as long as the construction of the current facility follows the original plan. I don't see that they would be limited to 8 stations in any future modifications, since according to the Federal Law they are allowed to modify the facilities in the future, I assume as long as they follow normal building codes. It seems to me they only need to build it per the original plan and then modify it in the future for whatever they need. IANAL

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post #836 of 8477 Old 04-19-2007, 11:26 PM
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Quote:
Originally Posted by donyoop View Post

Huh? The injunction is lifted. Game over. The property is re-zoned and the building dept. cannot withhold the building permit. Of course, you need to meet code, but you just have to meet code, not argue over drainage ramifications.

Are you sure about that? Doesn't it depend to a certain degree on what JeffCo's building code reads, especially when it comes to underground construction?

So they can't prohibit the construction, but I'm sure the building inspectors will be instructed to visit the site as often as possible and to hold them to the precise language of the code and to measure things to the millimeter.

Or, to quote the Denver Post's article:

Quote:


Construction of a broadcast tower on Lookout Mountain may proceed, but under Jefferson County's monitoring, according to a court ruling made public Wednesday.

The question is how intense that "monitoring" will be.

To quote further from the article:

Quote:


Golden officials said that while they are pleased, the ruling means Lake Cedar is building without a permit.

Assistant County Attorney Eric Butler said Lake Cedar will need grading, building and telecommunications permits.

One can only guess how many hoops LCG will need to jump through to get those permits, and how many times the applications for those permits will "get lost."

So, no, it isn't over by a long shot; I'm sure JeffCo could delay the permits pretty much indefinitely without any real difficulty whatsoever.

I wouldn't be at all surprised to find that LCG will have to go back to court at least once more to try and work out what the federal law really implies when it's late 2008 and JeffCo is still "processing" the permit applications.
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post #837 of 8477 Old 04-20-2007, 04:59 AM
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JJ's ruling purportedly gave JeffCo authority over the building process and it would be my guess that LCG will oblige so long as JeffCo acts in good faith and coughs up the permits on a timely basis and is reasonable and responsible with their inspections. JeffCo may feel like they regained control but if they attempt to further delay or hinder the process I'd think LCG will have them in US District Court on the grounds that SB4092 overrides JeffCo involvement. SB4092 is still a big stick and I don't think LCG will be afraid to use it if their dealings with JeffCo become difficult.

On another note....As far as I recall JeffCo approved the rezoning for Morrison and we all got happy thinking KRMA had won a major victory but to my knowledge nothing ever got built because of problems associated with getting a building permit. Proper zoning is one hurdle for getting a building permit but it's not the only requirement. I don't know what JeffCo requires but I'm sure they'd hold back any permits until they approve the building and tower plans. I don't know if they'll require an environmental impact statement (for example). Maybe Wabasabi can chime in and let us know what the County requires for construction of this type....

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post #838 of 8477 Old 04-20-2007, 06:08 AM
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The broadcasters need to start construction now to meet the 2009 deadline with built in lead time for schedule slippage. They will face Government sanctions if they are not ready so they will go on the air from Lookout even if that requires continuing use of the end of life towers. Who, with the exception of sCare with their convoluted logic, would want that?

It makes zero sense, especially in view of the current legal framework, for the county to be uncooperative and delay the project any longer.

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post #839 of 8477 Old 04-20-2007, 07:32 AM
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Quote:
Originally Posted by Geof View Post

On another note....As far as I recall JeffCo approved the rezoning for Morrison and we all got happy thinking KRMA had won a major victory but to my knowledge nothing ever got built because of problems associated with getting a building permit. Proper zoning is one hurdle for getting a building permit but it's not the only requirement. I don't know what JeffCo requires but I'm sure they'd hold back any permits until they approve the building and tower plans. I don't know if they'll require an environmental impact statement (for example). Maybe Wabasabi can chime in and let us know what the County requires for construction of this type....

Mt. Morrison was rezoned, platted (subdivided) and in the process of getting its building permits (a site development plan) when the courts ruled that Jeffco did not follow proper procedures when allowing the rezoning. Jeffco is challenging this ruling in court. So for now, no new tower on Morrison until this legal fight is over. (You can visit CARE's web site for the court's ruling)

-Wabisabi
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post #840 of 8477 Old 04-20-2007, 07:43 AM
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Quote:
Originally Posted by Geof View Post

On another note....As far as I recall JeffCo approved the rezoning for Morrison and we all got happy thinking KRMA had won a major victory but to my knowledge nothing ever got built because of problems associated with getting a building permit.

I'm not so sure building permits are whats keeping the horizontal tower from getting started. It's more likely KRMA financial woes. I wouldn't be suprised if sometime this year LCG announces KRMA is back in the fold.

Edit: I stand corrected .. its due to legal wrangling .. who'd a thunk!
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