HomeMy WebLinkAbout20112223.tiff DISTRICT COURT,WELD COUNTY, COLORADO f ILED IN WELD C0UNT'i
Court Address: DISTRICT CCf1FT
19th Judicial District
I AUG -8 PM 12 50
P.O. Box 2038
Greeley, Colorado 80632
PLAINTIFF: James B. Woodward A
v. COURT USE ONLY
DEFENDANT: $card of County Commissioners of Weld
County Colnradn_
and,
INDISPENSABLE PARTIES: NE Colorado Cellular, Inc.
d/b/a Viaero Wireless, Beverly Ensley, Henry Jacobsen
PARTY WITHOUT ATTORNEY (PRO SE): Case Number: 2011 CV 599
Name: James B. Woodward
Address: 47897 Weld County Road 15, P.O. Box 599,
Wellington, CO 80549 Division: Courtroom:
Phone Number: (970) 897-3029
Fax Number: (970) 897-3021
Email: jbw(c�frii.com
SUMMONS
TO THE ABOVE NAMED DEFENDANT AND INDISPENSABLE PARTIES:
YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court an answer or
other response to the attached Complaint. If service of the Summons and Complaint was made upon
you within the State of Colorado, you are required to file your answer or other response within 20 days
after such service upon you. If service of the Summons and Complaint was made upon you outside of
the State of Colorado, you are required to file your answer or other response within 30 days after such
service upon you.
If you fail to file your answer or other response to the Complaint in writing within the applicable time
period, the Court may enter judgment by default against you for the relief demanded-in the_Complaint
without further notice.
Dated: August 5, 2011
I
E ,
Clerk of Court/Clerk
Ct ,-,N arvusr<ak .IovS 1 C,C,*- CI (on
4; - IFj it �-I0 11 2011-2223
jtw-t-s gW /
Signature of Plaintiff
This Summons is issued pursuant to Rule 4, C.R.C.P., as amended. A copy of the Complaint must be
served with this Summons.
Address of Defendant
Board of County Commissioners of Weld County
915 Tenth Street
P.O. Box 759
Greeley, Colorado 80632
Addresses of Indispensable Parties
NE Colorado Cellular, Inc.
1224 West Platte Avenue
Fort Morgan, Colorado 80701
Beverly Ensley
512 Hanna
Fort Collins, Colorado 80521
Henry Jacobsen
1350 West Sixth Street
Loveland, Colorado 80537
2
DISTRICT COURT,WELD COUNTY,COLORADO F IL ED IN DISTRICT WELD Y
Court Address:
19th Judicial District 2UI I JUN 17 PM I: 30
P.O. Box 2038
Greeley,Colorado 80632
PLAINTIFF: James B. Woodward
v. COURT USE ONLY
DEFENDANT: Board of County Commissioners of Weld
County, Colorado
and,
INDISPENSABLE PARTIES: NE Colorado Cellular, Inc.
d/b/a Viaero Wireless, Beverly Ensley,Henry Jacobsen
PARTY WITHOUT ATTORNEY (PRO SE): Case Number:
Name: James B. Woodward o2O11 CV .S99
Address: 47897 Weld County Road 15, P.O. Box 599,
Wellington, CO 80549 Division: Courtroom:
Phone Number: (970) 897-3029
Fax Number: (970) 897-3021
Email: ibw@frii.com
COMPLAINT FOR JUDICIAL REVIEW
Plaintiff, James B. Woodward,pro se, states and alleges as follows:
INTRODUCTION AND SUMMARY
1. Pursuant to §24-4-106, C.R.S. and C.R.C.P. 106(a)(4),this lawsuit seeks judicial review and
invalidation of the Defendant Board of County Commissioners of Weld County's("BOCC")
issuance of Use by Special Review Permit Number 1776("Permit")to Beverly Ensley,c/o Viaero
Wireless on May 18, 2011. The Permit, issued with conditions, allows Applicant to erect a 195
foot microwave tower and related structures on a vacant parcel located northeast of the intersection
of County Roads 13 and 98.
2. The first claim brought by this lawsuit challenges the BOCC's issuance of the Permit on the basis
that the BOCC abused its discretion by approving the Permit based on an incomplete and deficient
permit application.
3. The second claim brought by this lawsuit challenges the BOCC's issuance of the Permit based on
the fact that the permit applicant and County staff submitted and communicated factually
inaccurate, incomplete, and misleading information to the BOCC.
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4. The third claim brought by this lawsuit challenges the BOCC's issuance of the Permit based on the
fact that a controversy exists regarding the identity of the applicant, and that various application
and Weld County documents conflict with respect to the identity of the applicant and the permit
holder.
5. Plaintiff respectfully seeks judicial relief and requests that this Court invalidate the Pemut,remand
this matter with instructions that the BOCC must begin any consideration of this matter anew, and
prohibit further reliance on the materials in the administrative record.
JURISDICTION AND VENUE
6. This Court has subject matter jurisdiction over Plaintiff's claims pursuant to C.R.C.P. 106(a)(4).
Alternatively,this Court has subject matter jurisdiction over these claims pursuant to the Colorado
Administrative Procedures Act, C.R.S. §24-4-106. The relief requested is authorized by the
statutes and rules of civil procedure identified in this paragraph.
7. Venue is proper where decisions were made and the lands in question are located in Weld County.
PARTIES
8. Plaintiff James B. Woodward,resides at 47897 Weld County Road, Wellington, Colorado 80549.
9. Plaintiff is the co-owner of record of certain real property located in Weld County, Colorado,
described as follows:
PT NW4 6-8-67 LOT A REC EXEMPT RE-1938 (1R)
and,
N2NE4 6-8-67(1.82R) 47897 15 CR WELD CO
This property lies within 220 feet of the proposed 195 foot tower. Plaintiff will be adversely
affected by the construction and erection of this tower. Approval of the permit by Weld
County to do so will negatively impact plaintiffs property value, quality of life, and the use
and enjoyment of plaintiffs private property.
10. Plaintiff has exhausted the available administrative remedies and participated in the County
proceedings by submitting two written statements to the Board of County Commissioners of Weld
County and the Weld County Planning Commission. Granting Plaintiff's request for relief would
remedy harms to the legally protected interests of Plaintiff which flow from the Defendant's
unlawful conduct in the issuance of the Permit.
11. Defendant Board of County Commissioners of Weld County, Colorado (`BOCC")is a
governmental body that exercises judicial or quasi-judicial functions. The BOCC is sued as the
body responsible for making decisions in Weld County under the land use authority granted to
Counties by Colorado statutes. The BOCC approved a resolution on May 18, 2011 which
approved the Permit, with conditions.
12.NE Colorado Cellular, Inc. d/b/a Viaero Wireless (`Viaero") is a Colorado corporation. Viaero
Wireless is one of two applicant names on the Site Specific Development Plan and Use by Special
2
Review(USR)Application(the other name is Henry Jacobsen.). NE Colorado Cellular,Inc. is
described as Grantee in an untitled, notarized document describing a purchase agreement between
Beverley A. Ensley ("Ensley")and Viaero for the acquisition of a 46.22 acre parcel of real property
for the construction and operation of telecommunications tower and related facilities. According to
the document, Ensley authorizes Viaero to make all necessary applications for governmental
approvals for the stated purpose. Accordingly, Viaero is therefore joined, in an abundance of
caution, as an Indispensable Party to this lawsuit. See Norby v. City of Boulder, 577 P.2d277,280
(Colo. 1978).
13. Beverley A. Ensley was the owner of record of certain real property located in Weld County,
Colorado, described as follows:
PT W2SE4 31 9 67 LOT B REC EXEMPT RE-4494
14. On information and belief,the real property referred to above was transferred to NE Colorado
Cellular,Inc. by Special Warranty Deed recorded with the Weld County Clerk and Recorder on
June 1, 2011.
15. The Permit was issued to Beverly Ensley, c/o Viaero Wireless. Accordingly,Ensley is therefore
joined, in an abundance of caution, as an Indispensable Party to this lawsuit. See Norby v. City of
Boulder, 577 P.2d277,280 (Colo. 1978).
16. Henry Jacobsen("Jacobsen") holds a Colorado Professional Engineer's license(License No. PE-
43634) and is Site Acquisition/Engineering Specialist for Viaero Wireless. Jacobsen prepared and
signed the Site Specific Development Plan and Use by Special Review(USR) Application and is
listed as"applicant or authorized agent". Accordingly,Jacobsen is therefore joined, in an
abundance of caution, as an Indispensable Party to this lawsuit. See Norby v. City of Boulder,577
P.2d277,280(Colo. 1978).
FIRST CLAIM FOR RELIEF
DEFENDANTS ABUSED THEIR DISCRETION BY ISSUING THE SPECIAL USE PERMIT
BASED ON AN INCOMPLETE AND DEFICIENT PERMIT APPLICATION
17. Plaintiff restates and incorporates herein by reference the allegations set forth in this Complaint as
if fully set forth herein.
18. Division 9 of the Weld County Code calls for protection of the visual environment of the County
by reducing the number of towers needed to serve the County by requiring facilities to be placed on
existing structures wherever possible and requiring co-location of commercial tower providers on
existing and new towers, and only allows new towers if the applicant submits documentation that
existing or approved towers cannot accommodate the telecommunications equipment planned for
the proposed tower. Weld County Code Sec. 23-4-800 et. seq.
19. The plain language meaning of"documentation"is the"the supplying of documents or supporting
references; use of documentary evidence." (Webster's NewWorld Dictionary, Second College
Edition.) The applicant failed to submit documentation pursuant to Section 23-4-820, Subsection E
of the Code to the Weld County Planning Department as part of its permit application.
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20. The applicant acknowledges the existence of a nearby broadcast antenna tower. The 647-foot Jacor
Broadcasting tower(Registration No. 102411)is located only 1.3 miles south of the applicant's
proposed site.
21. The application includes assertions that the Jacor tower"is unsuitable for cellular collocation",and
that"there is no existing telecommunication antenna tower"that provides a microwave link to
Ault,the Owl Canyon area, and downtown Loveland. These statements are unsupported and do
not constitute documentary evidence that can be reviewed,evaluated, and independently verified
by affected property owners and the general public.
22. In a March 29,2011 email from Henry Jacobsen to Jim Woodward,Mr. Jacobsen made the
following assertions regarding the Jacor tower and co-location:
As for the Jacor tower, it is a high-power broadcast tower. The tower itself is used to broadcast
signal at many tens of thousands of watts of radiated power. It is more precisely described as a
"mast radiator". Broadcast towers such as these could never be used for cellular collocate for a
wide variety of reasons... safety,performance,interference, etc.
Conversely, cellular towers are mechanical support structures with antennas(for cellular
service) and dishes (for microwave) suspended from the tower. As a design note, cellular
towers are generally not constructed in near proximity to broadcast towers due to interference
issues. The strong broadcast signal can induce unwanted interference into the cellular
equipment.
23. Mr. Jacobsen prepared the permit application and is entitled to make these assertions of fact.
However,he failed to submit any documentation or evidence to support his assertions that safety,
performance, and interference issues preclude co-location on the Jacor tower.
24. On information and belief,Mr. Jacobsen has attempted for several weeks to obtain a letter from
Clear Channel Communications,the owner of the Jacor tower, stating that co-location was not
feasible. Based on responses to a June 12,2011 Colorado Open Records Act request submitted to
the Weld County Planning Department, Mr. Jacobsen has been unable to submit such a letter to the
County.
25. In a June 9,2011 email from Chris Gathman, Planner III for the Weld County Department of
Planning Services, Mr. Gathman notes that he spoke by phone with Gary Hess, Director of Vertical
Real Estate for Clear Channel Communications. According to Gathman,Mr. Hess indicated that
the Jacor tower would not be structurally capable of supporting co-location of the microwave
dishes needed for the Viaero facility proposed under USR-1776. While interesting,a recounting of
a phone conversation by a County planner does not constitute documentation and does not relieve
the applicant of the requirement to submit reviewable documentation with its application.
26. To properly assess and evaluate the technical and economic reasons why co-location may or may
not be possible,the Weld County Code requires an applicant to submit documentary evidence
addressing the issue of co-location. While various assertions have been entered into the
administrative record in this case,the specific requirements of Section 23-4-820, Subsection E
have not been met. As a result,the application is incomplete and deficient.
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27. The Code requires an applicant for a Special Use Permit to submit documentation demonstrating
that"the proposed tower shall not emit radiation that will adversely affect human health."Weld
County Code Section 23-4-820.
28. The U.S. Federal Communications Commission(FCC)has adopted guidelines and procedures for
evaluating environmental effects of radiofrequency(RF)fields, including microwave and cellular
frequencies. The guidelines incorporate limits for Maximum Permissible Exposure(MPE)in terms
of electric and magnetic field strength and power density for transmitters operating at frequencies
between 300kHz and 100 GHz. According to the application, the proposed tower would transmit at
1960 MHz,which falls within the range regulated by the FCC.
29. Under FCC rules,certain wireless telecommunications facilities are "categorically excluded"from
routine evaluation for compliance with MPE limits. The FCC publication, "A Local Government
Official's Guide to Transmitting Antenna RF Emission Safety: Rules,Procedures,and Practical
Guidance", includes a checklist to guide permit applicants and local government officials in
making a determination of categorical exclusion. Detailed technical information regarding RF
issues can be found in the FCC publication,"Evaluating Compliance with FCC Guidelines for
Human Exposure to Radiofrequency Electromagnetic Fields."
30. The applicant failed to submit documentation that would allow the County and stakeholders to
determine if the proposed tower would or would not be categorically excluded pursuant to FCC
rules. If a proposed facility is not categorically excluded,an evaluation of potential exposure must
be conducted to determine whether the proposed facility complies with FCC guidelines.Rather
than provide the documentation required by Sec. 23-4-820,the applicant simply"affirmed"that the
proposed tower will operate"per FCC rules and industry best practices."
31. Rather than submitting technical specifications on power density, electric and magnetic field
strength, and specific absorption rate at given locations from the proposed tower,the applicant
simply provided vague assertions regarding compliance with FCC rules. The Code specifically
requires documentation that radiation emitted will not adversely affect human health, and adjacent
property owners require such documentation to adequately asses any potential health risks posed
by the proposed tower. The lack of such documentation renders the application substantially
incomplete.
32. The Code requires an applicant for a Special Use Permit to submit photo-realistic renderings,or
photo simulations,of the proposed project. Weld County Code Section 23-4-870. Photo
simulations allow County officials, affected neighbors, and the general public to assess the visual
impact of a proposed tower.
33. The applicant failed to submit a photo simulation looking from west to east from the vantage point
of the closest residence, located approximately 550 feet to the west of the tower.
34. Instead,the applicant submitted two photo simulations taken from roughly three-quarters of a mile
west and southwest of the proposed site. These two photo simulations exhibit perspective
distortion,making the tower look smaller than it would with the naked eye. The photographs were
apparently taken using a wide angle lens or setting. The effect of this wide angle lens or setting is
to make distant objects look smaller. The simulated tower in the applicant's renderings is
significantly smaller than it would look with the naked eye.
5
35.No photo simulation was submitted looking south to north, even though several residences exist to
the south and southeast of the proposed site.
36. The applicant submitted two different photo simulations looking from east to west. Both
simulations exhibit perspective distortion, making the tower look smaller than it would with the
naked eye. Further,the photo simulations show the proposed tower in two different locations,
north to south. And both photo simulations show the tower to be located on the north property line
of the subject parcel,approximately 200 feet west of the location designated on the Special Review
Permit Plan Map submitted to the County.
37. The applicant submitted photo simulations that are distorted and inaccurately represent the location
of the proposed tower. Further, the applicant failed to submit photo simulations from the vantage
point of residents whose views will be impacted by the proposed tower. Therefore,the applicant's
photo simulations do not comply with the Code's requirement to demonstrate the true impact of the
proposed tower facility on the surrounding visual environment.
38. The Code requires an applicant for a Use by Special Review Permit to submit a statement which
explains that the proposed use will be compatible with the existing surrounding land uses. Weld
County Code Sec. 23-2-260.A.4.
39. Applicant attempted to address this requirement by stating that the subject property and all
surrounding properties are zoned A(Agriculture), and that telecommunication towers are allowed
as a use by special review. The response is incomplete and misleading since it omits the fact that
there are numerous private residences within a one mile radius of the proposed tower site. In fact,
one residence is located only about 550 feet from the proposed site.
40. In addition to withholding relevant factual data in its response, applicant does not even attempt to
explain how the proposed tower would be compatible with existing surrounding residential and
agricultural land uses. As a result,the application is incomplete,deficient,and misleading.
41. In summary,the application is substantially incomplete and does not comply with the requirements
of the Code. The BOCC initiated a permitting proceeding based on a deficient application and
misapplied the governing law by approving the Use by Special Review Permit.
SECOND CLAIM FOR RELIEF
DEFENDANTS ABUSED THEIR DISCRETION BY ISSUING THE SPECIAL USE PERMIT
BASED ON FACTUALLY-INACCURATE,INCOMPLETE,AND MISLEADING INFORMATION
SUBMITTED AND COMMUNICATED BY THE APPLICANT AND COUNTY STAFF
42. Plaintiff restates and incorporates herein by reference the allegations set forth in this Complaint as
if fully set forth herein.
43. At the May 18,2011 hearing of the Board of County Commissioners, county planner Chris
Gathman made the misleading statement that approximately 25%of the tower height would be
partially obscured because the applicant has proposed to locate the tower below the crest of a hill.
According to Mr. Gathman, this statement was based on representations made by the applicant.
Hearing Certification—Docket No. 2011-24.A.
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44. As Mr. Gathman explained,the hill is located to the west of the proposed tower site. However,
with respect to the visual impact of the tower,Mr. Gathman failed to mention that the numerous
residences, including the Plaintiff's,that are located east, southeast, and south of the proposed site
would have a full and unobstructed view of 100%of the tower.
45. Mr. Gathman's comments to the commissioners also implied that those residents who had
submitted comment letters addressing the visual impact of the proposed tower would benefit
because the lower 25%of the tower would be obscured by the crest of a hill. The fact is that every
resident who submitted a comment letter would have an unobstructed view of the entire tower.
46. At the same hearing, Mr. Gathman made the misleading statement that the applicant had provided a
cellular service signal map which indicates there is little to no service in this area for residents.
Hearing Certification—Docket No. 2011-24.A.
47. Plaintiff is an AT&T Wireless subscriber and has been successfully using a cell phone in this area
for several years. Signal strength may vary,but the assertion that there is little to no service in the
area is factually inaccurate.
48. Further,the permit application states that the proposed tower is intended to provide a microwave
link from Ault to downtown Loveland and the Owl Canyon area in Larimer County. There is no
mention in the application of providing local cellular service in the area surrounding the proposed
tower.
49. Because of these statements made at the May 18, 2011 hearing,the BOCC relied on factually
inaccurate, incomplete, and misleading information during their deliberations and decision to
approve the Permit.
THIRD CLAIM FOR RELIEF
DEFENDANTS ABUSED THEIR DISCRETION BY ISSUING THE SPECIAL USE PERMIT
WHEN A CONTROVERSY EXISTS REGARDING THE IDENTITY OF THE APPLICANT
50. Plaintiff restates and incorporates herein by reference the allegations set forth in this Complaint as
if fully set forth herein.
51. The permit application lists the applicant(or authorized agent) as "Viaero Wireless/Henry
Jacobsen." Viaero Wireless is the registered trade name of NE Colorado Cellular, Inc. Henry
Jacobsen is an employee of NE Colorado Cellular, Inc. It is not clear from the application if
Viaero Wireless and Henry Jacobsen are co-applicants or co-authorized agents.
52.The Land Use Application Summary Sheet for Case Number USR-1776 published by the Weld
County Department of Planning Services lists the applicant as"Viaero Wireless—C/O Henry
Jacobsen."
53. According to the aforementioned document, the applicant is Viaero Wireless.
54. In contrast, other documents entered into the administrative record, including the Weld County
Referral form,the summaries of the April 5, 2011 and May 3, 2011 Planning Commission
meetings, the May 3, 2011 Resolution of Recommendation to the Board of County Commissioners,
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the Application Review Notification Cards,the Heating Certification, and the May 18,2011 BOCC
Resolution list the applicant as "Beverly Ensley c/o Viaero Wireless."
55. According to the aforementioned documents,the applicant is Beverly Ensley.
56. Beverly Ensley is the former owner of the subject parcel. On information and belief, the subject
parcel was transferred to NE Colorado Cellular,Inc. by Special Warranty Deed recorded with the
Weld County Clerk and Recorder on June 1,2011.
57. A controversy exists with respect to the identity of the applicant and the party issued the Use by
Special Review Permit since various documents in the administrative record appear to list different
parties as the applicant.
REQUEST FOR RELIEF
Plaintiff respectfully requests that the Court:
A. Invalidate the BOCC's May 18, 2011 resolution as an abuse of discretion and in excess of statutory
authority;
B. Remand this matter to the BOCC with the instruction that any approval process concerning the
proposed facility begin anew and that no person may rely on any findings or determinations made
during the proceedings; and
C. Grant Plaintiff such further relief as may be just,proper, and equitable.
RESPECTFULLY SUBMI I FED THIS 17TH DAY OF JUNE,2011
J/44444 $. W
James B. Woodward
P.O. Box 599
Wellington, Colorado 80549
(970) 897-3029
Fax: (970) 897-3021
Email: ibw@frii.com
8
Address of Plaintiff
James B. Woodward
47897 Weld County Road 15
P.O. Box 599
Wellington, Colorado 80549
Address of Defendant
Board of County Commissioners of Weld County
915 Tenth Street
P.O. Box 759
Greeley, Colorado 80632
Address of Indispensable Parties
NE Colorado Cellular, Inc.
1224 West Platte Avenue
Fort Morgan,Colorado 80701
Beverly Ensley
512 Hanna
Fort Collins, Colorado 80521
Henry Jacobsen
1350 West Sixth Street
Loveland, Colorado 80537
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