Denver, CO - OTA - Page 13

I enjoy reading everyone's thoughts regarding the JJ/injunction issue. But I think we read too much into some of this sometimes. I think it's time to get back to basics with a little review of the issue.

The prior BOCC approved the LCG rezoning request. Golden and sCARE (plaintiffs) took them (BOCC and LCG, defendants) to court, JJ's court. After a couple of hearings and JJ written opinions over a long period of time, JJ issued his last "finding" (for lack of a better term) in May 2006 that stated that all of the points raised by the plaintiffs had no merit, that it was up to the BOCC to re-vote on the zoning request, and that vote should be based on facts and done in due haste.

When the BOCC decided to just procrastinate and basically ignore JJ, the Midnight Law (S. 4092) was passed. What did this do? It took Golden, sCARE, and the BOCC out of any decision making process/ability/jurisdiction over the construction of any digital TV tower and related facilities on Lookout Mountain.

The KEY POINT here is that the injunction JJ granted stopped the approval of LCG's rezoning request made by the prior BOCC. The Midnight Law took the rezoning issue away from any local control, or, to put it another way, automatically lifted the injuction. JJ's injunction is moot and all LCG is trying to do in their latest filing of a brief is to "clean up" the matter. Golden, sCARE, and the BOCC, as LCG's brief clearly advocates, no longer have an interest in this matter since any interest they may have had was precluded by the Midnight Law. End of Story.

I read the JeffCo/BOCC brief from the sCARE web page. What a joke! Remember, folks, JeffCo/BOCC is a defendant in the action before JJ with the same standing as LCG. Reading their brief, it sounds like they should have instead just filed a short statement something along the lines of:

"We bad. We want you to uphold the injunction and make it permanent. And, by the way, please change us from a defendant to a plaintiff. Thanks."

While I'm not a lawyer, I've read enough legal documents, etc. in my line of work to have a good idea when a legal brief/argument has little or no substance and is filed/made just to save face. The clue that this exists in the BOCC filing is their argument that the TV stations don't currently have a permit to build a digital TV station. No one in their right mind would raise such a silly argument that, even if technically true, is remedied so easily there is no point in considering it. The other clue is their attempt to argue points not relevant to the issue at hand. The brief covers items/issues considered resolved by JJ such as safety, health and then the brief goes futher by raising issues unrelated to zoning, such as the color of the buildings. The injunction covers a rezoning request, not building code regulations.

IMO, JJ has no choice in this matter since he doesn't have any jurisdiction over the plaintiffs or the defendants any longer due to the Midnight Law. He may not want to follow the law, but as a judge, I think we all expect him to.

As for the BOCC meeting in March, IMO this is nothing more than a save face attempt by the BOCC (i.e. farce) so that something involving this issue, at least in their feeble minds, won't come back to haunt them the next time they're up for election. Again, the BOCC can do whatever they want at this meeting, including ranting, raving, voting down the LCG proposal, or accepting the LCG proposal, or presenting a new proposal. Whatever they do will have no legal effect nor obligate any response from LCG because of the Midnight Law.

Sorry this post is so long. I guess I couldn't say what I wanted to express in fewer words.

I guess I did not miss anything. We are still waiting to see what JJ does with the motion to dismiss and lift the injunction.

Phil P.

I agree. It looks like they are trying to establish their right to maintain zoning control. They listed several different prior cases as support. Fine. They can zone it as a Hospital, Parking Lot or a Zoo. Whatever, none of that(and they stated such) will stop the tower construction.

Their most powerful statement is that w/o the FCC permit no tower can be built. Wow, their insight is amazing. That was their claim to fame. But it's just to pacify the ignorant. They can do nothing to stop the FCC from issuing a permit in the future, or issue multiple permits in the future.

The way I read everything, it doesn't really matter what JJ does. The tower goes up. What needs to be seen, is what efforts they use to try and delay the start of construction.

Deb, you go girl, get those last billable hours in there!
....jc

I agree 100%. I do think he has to at least show 'due diligence" or whatever the lawyers call it, though, by taking a few days ??? to seriously consider the BOCC response before he rules. That would make it harder for anyone to appeal on the grounds that their opinion was not heard. I would hope he will rule in a few days instead of waiting until the March meeting.

Sorry to paraphrase you, but this is exactly what I was thinking. If I recall from JJ's instructions per the vote, they have to decide based on existing facts and I don't think new testimony is even allowed. Since LCG blew the tower fall issue out of the water via their experts the only reasonable vote is to approve. Of course, who ever said Congrove & Co would vote based on facts &/or reason?

So why is sCARE trying to "rally the troops" for this meeting? A vote up or down means nothing now as LCG can build whatever they want as long as it is shorter than the tallest current tower. Color, landscaping, parking, open space, etc are no longer part of the equation.

To put it all into a Valentines day perspective, sCARE & BOCC were on the Dating Game and chose bachelorette #3 despite their buddy in the audience (us) repeatedly yelling "choose #2" . Before they met #3 they got to watch the smokin' hot bachelorette #2 walk right past and out the door. Now that they met Ms. "esthetically challenged" #3, they are trying desperately to change their choice to #2. To late, time to blow a kiss and wave goodbye.

Man this is great cold medicine!

Excellent post milehighmike I think you said it quite well.

One thing though.

Until JeffCo recognizes that the zoning issue is over they probably won't issue any building permit(s). I think it would be very safe to assume that if LCG started building without the appropriate permits then a suit would be filed, and ultimately an injunction imposed, to force them to stop construction until they get the necessary permits. Why? Personally I don't think S.4092 gives them free reign to build without building permits and I'd bet JeffCo would argue that as well. We know from the emergency BOCC meeting last week that LCG's stance is they do not need a building permit. This could become a protracted court battle (with an injunction in place) until the issue is decided. IMO, what needs to happen is that one way or another it is LCG's best interests to have JeffCo recognize that the zoning issue is over and to issue building permits.

I do believe what we're seeing now is posturing on both sides for building permit(s). LCG's proposal last week would have given them carte blanc if accepted but I don't think LCG thought it would be accepted. I think they wanted to establish their initial take on it and get all the leverage they could before JeffCo came out with their own set of "demands". I do believe LCG will will concede some points of contention in order to get JeffCo to issue building permit(s). The bottom line is that I think it is LCG's best interest to get JeffCo willing to issue building permit(s) and I think that is what the March BOCC meeting is all about. I'd expect the BOCC will listen to public input at to where to draw the line on issuing permits which is why SCARE is rallying the troops. In my mind a positive outcome in the March BOCC meeting is important to allow LCG construction to commence without further legal wrangling. So I guess I argue that the March BOCC meeting is much more than a Dog and Pony show.

I agree with what you said Geof, but can we realistically expect any 'give' on the part of (s)CARE? With a platform of no towers on Lookout, I have a difficult time imagining they will suddenly be open to compromise. Their current scheme is since LCG did not hold an active FCC building permit when 4092 was signed that it does not apply. When this angle fails I would expect they have several more issues lined up behind it.

As for compromise from BOCC, the best I expect from them would be demanding full compliance with LCG 2003. We'll find out in March, curious to see what might develop before then.

Well like you said we'll have to wait and see how it plays out but I doubt the "no valid FCC construction permit" argument holds any merit. First, I don't read S.4092 such that a permit was required at the time S.4092 was passed. In fact I read it as being open ended - i.e., you get an FCC permit in 2009 then S.4092 applies. Secondly I would argue that LCG has had a permit all along. I seriously doubt they'd be pursuing LCG2 if the FCC has not granted them the permission to construct it.

As to SCARE I think they've pretty much shot their wad. They can argue all they want about this and that but when it comes right down to it if JeffCo denies a building permit and LCG starts construction JeffCo loses:
1) If they don't challenge it in court they've lost all means to enforce their ordinances.
2) If they challenge it in court and lose then they've lost all means to enforce their ordinances.
3) If they challenge it in court and ultimately prevail they've spent a lot of money to gain back what they could have had if they just came to an agreement with LCG. This is risky because I don't think it's a slam dunk that they'd win such a battle. S.4092 says "Notwithstanding any applicable State or local land use or condemnation laws or regulations, and subject to all applicable Federal laws and regulations". The word "regulations" might be construed to mean permits. The sentence certainly implies the county has no say in the matter and I'm sure that is what LCG would like it to mean. If JeffCo loses the case then they'd forever more not have any control of anything the stations did and I'm not sure JeffCo wants to risk that outcome. Their safe bet is to come to an agreement with LCG with LCG agreeing to abide with county building codes. This is LCG's best bet as well since it is the least expensive and quickest route to getting the tower built (assuming they want to pursue the quickest route which may or may not be the case).

Then again if LCG wants to put the screws on JeffCo they may risk taking the case to court because if they prevail they'd have JeffCo and SCARE off their backs forever. It will be interesting to see what happens next month and who flinches first. Let the game of Chicken commence....

Too bad JJ can't be Judge Judy...she'd see through the BS and issue a timely ruling.

-Glen

These legal discussions are interesting but I wonder. While the issues behind the injuction are moot (rezoning), isn't the injuction still legally binding? In other words, while we and LCG may see the Act of Congress as removing the rezoning issue isn't it necessary for JJ or a higher court to agree, remove the injuction, or woudn't they be in contempt of court?

From the mapping that gakon drew ... I am in a bowl. The house we are seriously looking at is just S.E. of the 119th and Isabel intersection. If we go forward, I will have a CM4228 (what I have tried from here in SW Longmont) that I will give it a shot. Otherwise, I a comcast bound ... They have much better offerings that in Longmont for HD. I will still continue to get as much OTA as possible.

# Matt

I don't think it can't be both ways, i.e. the injunction being moot and yet still in force and binding.

Geof & Jetlag, you both make some very good points. I think a great point made by LCG in their latest brief was that the Midnight Law put jurisdiction over the tower/facilities construction solely at the federal level. So if sCARE, Golden, or the BOCC/JeffCo (plaintiffs) go to local/state courts, any filing would be thrown out due to lack of jurisdiction. If the plaintiffs go to federal court, the court would have jurisdiction but would have to find that that the plaintiffs have no legal "interest" in the matter. Remember, as Geof so aptly quoted - " S.4092 says "Notwithstanding any applicable State or local land use or condemnation laws or regulations, and subject to all applicable Federal laws and regulations". I think LCG has the equivalent of a blank check.

I think LCG will want to comply with local building codes if for anything else than to protect themselves from possible unrelated future suits/actions by employees who may get hurt at the site, to be able to maintain insurance coverage, etc. I also don't think they want to operate in a totally adverse atmosphere with JeffCo/BOCC. But I also don't think they're going to allow being bullied around any longer. They'll probably agree to things that they were willing or going to do anyway. But I don't think we'll see any stretches here.

I think the problem is that an injunction is not moot until the the court which issued it so rules, or another court at a higher level (e.g., federal) so rules. What LCG has is a slam-dunk argument, but an argument is not the same as a ruling.

I understand what you are saying but this is a substance over form issue. The substance of the matter is that LCG can, IMO, ignore the injunction because the plaintiffs have no relief available to them if it is violated. The form of the issue is that, on paper, the injunction still exists.

Maybe the LCG beginning to break ground and proceed forward is what is needed to finally get a rulling out of JJ. Either they will be in contempt, forcing the LCG to a easily winable federal court, and possible JJ slapping by the feds. Or the injuction will be dropped.

LCG is not in contempt with their latest construction. They are just 'cleaning' up their existing site for drainage, that is allowed under their current status. If they started to excavate for a new building, that would not be allowed at the present time.

That is my take as well. If JeffCo tries to take a hard line stance they could lose all say in the matter. If LCG takes a hard line stance we'll see more injunctions and court battles over jurisdiction. I think it's in the best interest of both parties (and certainly for you guys) if they can come to terms during the March BOCC. And I don't think LCG is going to wait around for further BOCC meetings if the issue gets put off again. The time for more delays are over. It's time to come to terms or start construction and let the legal battles begin.

As far as JJ is concerned I don't think LCG will proceed without some sort of ruling or barring that an appeal to a higher court. IANAL but I do believe a higher court can overturn JJ's injunction.

What's really important, the new tower or television for the Denver area? Now we all know the new consolidation tower is nice for many reasons but is it really necessary?

Let's assume Deb earns her quill pen for arguing before the Supreme Court and persuades the justices to deny the tower. No problem, just put a new coat of paint on the existing structures and use them for another fifty years. No new structures .. no building permits. Uncrate the new transmission equipment and connect it to the feedline. Your on the air with digital from Lookout.

Before you begin, verify your construction permit from the FCC. They don't care about local squabbles.

Just be certain the RF power density is within legal limits. That's all .. no need to prove the established legal limits are safe.

That Congressional 'notwithstanding' act should take care of those digital towers are nonconforming because they are different from analog towers kinds of local zoning arguments.

Either way, the Denver area retains over-the-air television. Either way, sCare looses because there will be TV transmissions from Lookout.

--- CHAS

Ernie has stated more than once, that the existing towers are EOL. So, that could be a short term solution, but long term something new needs to be built.
....jc

I didn't mean to imply that they are, what I meant is that they should begin ground breaking, and by doing so, force the hand of JJ. Enough delay already.

I really think the BOCC should be held in contempt! With all due speed my .....

# Matt

Didn't someone say this around 2000?

I agree. The more times I read S.4092 the fewer potential loopholes I find. I'm not sure who said it, but whomever from BOCC/JeffCo/Golden/sCARE was quoted as saying there were gaps big enough to drive a truck through in it's language must have been hallucinating. IANAL either, but I think LCG is virtually immune from any of the local entities.


Again I agree. Complying with code & having all inspections signed off will help with funding, insurance and potential liability claims. Also, I don't think it would even be possible to construct and/or utilize a new TV tower without proper certification.

Other thoughts...
What do I think we'll end up with on Lookout? I would not be at all surprised to see the design of the tower and supporting structures change significantly from the 2003 proposal. If I were LCG I would place the base of the new tower further up slope so that it's top is just below the height of the tallest existing tower. Higher transmitters = improved DMA. Besides, why hamstring yourself in regards to future needs? Along these same lines I would absolutely quadruple-check to ensure that it was not so much as 1 mm taller. Can you just imagine the can of worms it would open up if it were?

Furthermore, if there are no advantages to the supporting equipment structures being underground (other than for aesthetics) why spend the substantial funds to blast out a giant hole in the mountain? Camoflaging the structures with paint and landscaping would be vastly less expensive and would serve to dampen the ire of Lookout residents. I saw this done on a large radar installation in S. Korea, the stuctures were nearly imperceptable in the forest. Open space: I think releasing some land back to JeffCo would be great PR for LCG, but I would anticipate it may be less than the 75 acres stipulated in LCG 2003. Why not save a bit of it for future tower construction? That last sentence ought to make a few hearts palpitate among sCARE members!
Finally, I'm certain that LCG will remove the 4 old towers once the new one is fully operational, most likely several months afterward to first ensure the reliability of the new equipment.

Oh, almost forgot: Monitoring-Schmonitoring!
If you want the RF levels on Lookout continuously monitored we (LCG) can provide JeffCo a list of companies who can provide that service but we won't pick up the tab. We only create a fraction of the total RF emitted from Lookout so if you want someone to pay for it go talk to Clear Channel.

I agree with your sentiment, Jetlag, and know you are speaking rhetorically. But knowing that sCARE operates by twisting every word by whoever says it, it might be safer to make clearer that you aren't actually speaking for LCG.


-2sleep

They know full well none of us speak for LCG. They probably loath us as much as them but they know we aren't them.

And I agree with Jetlag's statement. You can bet cold hard cash that Al Hislop will be monitoring RF levels and it won't take long for the STHTF if there is any sort of deviation from predictable levels.

Maybe, but who's to watch the watcher?

So true.

That is why I was really in favor of independent third party testing. Al has too much at stake to be trusted not to bend or spin the test results. I still think it would be in the best interest of ALL parties, especially the LCG to have a third party perform regular checks on the mountain. The only question now is who should pay for it? I can understand why the LCG now might not want to, but I still think it is in their best interest, as well as the general public. I wonder how they will come down on the payment now.

My rambling opinion on the latest legal stuff...(IANAL)...

First, I encourage you all to read both of these one after the other (in order):

LCG's Motion To Dismiss and Lift Stay:
http://www.c-a-r-e.org/pdfs/LCG%20Mo...iss%201-06.pdf

JeffCo's Response to LCG's Motion to Dismiss:
http://www.c-a-r-e.org/pdfs/Jeffco%2...taj_021207.pdf

LCG's motion is brilliant (as I've stated before). What is very, very interesting to note is when you compare what LCG says to JeffCo's response, you see how JeffCo spins/characterizes/reads-too-much-into the motion to dismiss. Case in point:

Jeffco: "Lake Cedar asks the Court to find that the Act frees it from all local oversight of health, safety and welfare on its property."

That's simply not true -- if you read the LCG motion and you can comprehend the English language, nowhere in their brief did they state anything close to that.

I think from what I've read here and from what seems to make legal sense, the purpose behind LCG's motion is to effectively lift the stay so that they don't run any hazard of being in contempt. I'm guessing that, internally, LCG thinks they can do whatever the hell they want with impunity, but they want to do things the right way.

One way to read JeffCo's response goes like this:

JeffCo's stance: the issue before the court hasn't been decided -- we haven't made our final decision which we were told to do with "all due speed" last May. The issue before the court is a tower-fall/public-health-and-safety issue that is well within the BOCC's purview, and the injunction is based on that issue. They are making the case (read "spinning") that LCG's contention that the court no longer has subject matter jurisdiction is, in effect, stating that LCG can continue with impunity and ignore local regulations (I suppose you could read "regulations" , the term used in the "Act", to include items such as building permits, building code requirements etc.).

What I find silly/ironic is that JeffCo even responded to the motion to dismiss. For the life of me, I cannot comprehend that the outcome of the BOCC's upcoming hearing (where, ostensibly they will vote again, under the guidelines set by JJ, on the issue) will be anything other than a unanimous vote to approve the rezoning. (Note, JJ's May 2006 remand back to BOCC mandates that whatever decision the BOCC comes to must include text that shows how they came to that decision. If they vote "no", and don't have competent reasoning such as "oh, see, there really is a tower fall issue and here's proof", JJ will vacate the injunction, slap the BOCC and then..I guess I don't know what -- does he effectively approve the rezoning himself? I dunno...).

I'm guessing JJ isn't going to do any ruling until after the BOCC makes their upcoming decision. But, it would be interesting if he got a wild hair and decided to consider the motion to dismiss outright, right now. I suppose he'd only do that if he felt compelled by LCG's motion and was going to rule in their favor, vacate the injunction and dismiss the case. I wonder what he's thinking right now about JeffCo's response to the motion to dismiss. He could be thinking "JeffCo makes a point -- while their response is rife with useless crap (whether LCG actually has the FCC permits) -- let's say I read the "Act" very narrowly and assume "regulation" doesn't include public-health-and-safety issues such as tower-fall as they relate to things like building codes etc. that the County can enforce. If that's the case, then this court still does have subject matter jurisdiction, and I should let the BOCC make their decision, then work through the aftermath."

This stuff is too darn interesting :-)

- Joe

Posted by skyburn:

Please re-read the third paragraph on page 4 that begins with "Because" and the first full paragraph on page 7 that begins with "Here" of LCG's brief. IMO, LCG is clearly stating that local authorities have no jurisdiction over the contstruction of the tower.

LCG filed a motion with an explanatory brief to dismiss the case. This filing has nothing to do with any action the BOCC may take in March or at any other time. While JJ may wait to see if the BOCC approves LCG's zoning request, which, if they do, makes his involvement in the case moot, he doesn't have to wait for the BOCC to take an action.

BOCC is a defendant in this case, not a plaintiff. The plaintiff's have not filed any briefs with the court. So, at this point in time, JJ must look at this case as having to issue a ruling on a motion filed by a defendant without any input/objection from the plaintiffs. Since this case, and LCG's related motion, only applies to the zoning request, and taking into account the Midnight Law and no filing from the plaintiffs to object to the motion, JJ has no choice but to dismiss the case.

What I think some of us, including me at times, forget is that this case has nothing to do with building permits, etc. That issue, which sCARE, Golden, and the BOCC may want to pursue at a later time, will have to be decided independently of the zoning issue. But it is clear from LCG's brief that LCG is of the opinion that JeffCo has no authority over LCG's construction of the tower.

Both City of Golden and (s)CARE have filed brief's in this case (JeffCo's was last filed). The brief from (s)CARE was written by dear ol' Deb and mostly whines that the new law in unconsitutional, along with some yammering about why a State Court can make that determination, and that's why the inunction should stay. I think the Constitutional argument is weak at best, and since the law is a Federal law, it would probably have to be ruled on by Federal Courts and any injunctions on that basis would have to come from there.