Colorado appeals court reverses Mount Morrison rezoning

On May 4, a Colorado court reversed the decision of a Colorado county board that approved rezoning an area west of Denver to allow construction of a DTV transmission tower in the foothills of Golden, CO.

The Colorado Court of Appeals further instructed the Board of County Commissioners of Jefferson County to initiate further proceedings on the matter. The tower affected by the decision, to be built by Bear Creek Development and partner Public Interest Communications, was to be used for Denver-area PBS coverage. It is not connected to the ongoing dispute over whether to allow a separate consortium of Denver-area television stations to build a new DTV tower on Lookout Mountain.

In siding with Canyon Area Residents for the Environment (CARE), a non-profit corporation, which appealed the board’s decision to OK the rezoning, the court found that the board “abused its discretion” when it allowed developers proposing the rezoning “to make substantial changes to their proposal after public testimony was closed.”

The court did not make its judgment based on the facts of the case; rather, it restricted its review to determining “whether the governmental body abused its discretion or exceeded its jurisdiction” in approving the application to rezone.

The court’s decision centered on the board allowing developers of the project to make multiple changes to their application after its meeting was closed to the public whereupon the board approved the rezoning.

Citing a county zoning resolution that states “no substantial revisions or additions … may be made to any application or supporting documents within 21 days prior to any hearing,” the court agreed with CARE that the changes made “were substantial enough to warrant public review” and that the public wasn’t adequately informed of the project specification as required by the zoning resolution.

The court also agreed with the CARE appeal that the board “abused its discretion by failing to make an express finding that no existing tower sites were adequate.” The court instructed the board to make “the express determination required” by a zoning resolution and determine whether the developers “have met their burden of proving no existing tower sites are adequate to accommodate their proposal.”

Finally, the court agreed with CARE that the board erred in approving the application for change in zoning by not finding “that it was in general conformance with the county’s use plans.”

The Colorado Court of Appeals remanded the case to the district court, directing it to remand to the board for further proceedings.

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