HomeMy WebLinkAbout20040601.tiff HEARING CERTIFICATION
DOCKET NO. 2004-22
RE: SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT#1457
FOR ONE (1) RADIO COMMUNICATION TRANSMISSION TOWER OVER SEVENTY
FEET IN HEIGHT (755 FEET) IN THE A(AGRICULTURAL) ZONE DISTRICT - REGENT
BROADCASTING OF FORT COLLINS, INC.
A public hearing was conducted on March 17, 2004, at 10:00 a.m., with the following present:
Commissioner Robert D. Masden, Chair- EXCUSED
Commissioner William H. Jerke, Pro-Tern
Commissioner M. J. Geile
Commissioner David E. Long
Commissioner Glenn Vaad - EXCUSED
Also present:
Acting Clerk to the Board, Esther Gesick
Assistant County Attorney, Lee Morrison
Planning Department representative, Sheri Lockman
Health Department representative, Char Davis
Public Works representative, Donald Carroll
The following business was transacted:
I hereby certify that pursuant to a notice dated February 27,2004,and duly published March 4,2004,
in the South Weld Sun, a public hearing was conducted to consider the request of Regent
Broadcasting of Fort Collins, Inc.,fora Site Specific Development Plan and Use by Special Review
Permit#1457 for one (1) Radio Communication Transmission Tower over seventy feet in height
(755 feet)in the A(Agricultural)Zone District. Lee Morrison,Assistant County Attorney, made this
a matter of record. Chair Pro-Tem Jerke advised the applicant's attorney, Ken Lind of Lind,
Lawrence and Ottenhoff, LLP,that he has the option of continuing this matter to a date when the full
Board will be present. However, if he decides to proceed today, approval will require three
affirmative votes or the matter will be deemed denied. Mr. Lind indicated he would like to proceed
today.
Sheri Lockman, Department of Planning Services, presented a brief summary of the proposal and
entered the favorable recommendation of the Planning Commission into the record as written. Ms.
Lockman stated the application is for a 755-foot tower, and she gave a brief description of the
location of the site and the surrounding uses. Ms. Lockman stated ten referral agencies reviewed
this proposal,and six responded favorably or provided comments that have been incorporated into
the Conditions of Approval and Development Standards. She stated the original tower was
constructed in 1975 under Conditional Use Permit#9. She stated there is a second tower on the
parcel,which is currently owned by Denver Television, Inc.,dba KDVR(Fox 31),and the applicant
is currently in negotiations with Fox 31 regarding an operating agreement. Responding to
Commissioner Geile,Ms. Lockman clarified the third tower,which would be permitted through this
application,has already been constructed through the early release of Building Permits. She stated
if this permit is approved, the old tower will be vacated and demolished. Mr. Morrison stated the
Board will also hold collateral to ensure the work is completed as agreed. Responding to
Commissioner Jerke, Mr. Morrison stated applying for this Use by Special Review Permit was a
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condition of the early release of Building Permits, and the applicant has also provided collateral
which will ensure one of the towers is removed. Ms. Lockman stated the applicant submitted
documentation that they have addressed the requirements of the Federal Aviation Administration
(FAA) and Federal Communications Commission (FCC).
Char Davis, Department of Public Health and Environment, stated she has no comments at this
time.
Donald Carroll, Department of Public Works, described the location of the site, which has one
access from Weld County Road 90 as shown on the recorded information to be provided by the
applicant (See Exhibit L).
Due to a leg injury, Mr. Lind stated he is being assisted by Christen Heinz who will submit the
various documents which he will reference in his presentation to be marked as Exhibits. He
explained in 1975 the Board of Commissioners approved the application of the Wells-Tennessen
Tower Company for Conditional Use Permit, CUP #9, for the original 605-foot tower, which is
currently owned by Regent Broadcasting (See Exhibit K). He stated in 1994 the Board approved
the application of Fox 31 for Use by Special Review Permit, USR#1047,with the condition that the
old 605-foot tower be torn down and replaced with a 738-foot tower. He stated the radio stations
were to be transferred from the old tower to the new Fox 31 tower. He stated Fox 31 has expressed
objections to the early release of Building Permits for the third tower; however, a similar process
was used for the tower constructed in 1994. He stated the primary difference is that Regent has
provided financial assurances for the construction of the new tower and demolition of old tower,or
demolition of new tower if the applicant fails to perform as required under this permit. He explained
following approval of the 1994 permit, Fox 31 later decided it did not want to share the site or have
other stations on its tower,therefore,it submitted an amended application requesting the old tower
remain in place with ownership being transferred to the stations already on the old tower, and the
amendment request was approved. Mr. Lind read portions of a letter from Fox 31 to the Department
of Planning Services, dated December 1, 1994, regarding Amended USR#1047, included with
Exhibit H. He stated it still makes sense to have two towers on site, and under this permit the old
605-foot tower will be removed and replaced with a 755-foot tower. He stated the site layout and
location of cables will have minimal changes,and the two towers are only 15 feet away from each
other. He confirmed that the request has been approved by the FAA and FCC,and that information
was submitted as part of Building Permit and Use by Special Review Permit applications. Mr. Lind
stated with FCC approval, the two stations (KUNC and KUAD) have moved from the old tower to
the new tower and they are currently broadcasting. He stated the new tower was designed and
constructed to ensure the health, safety, and welfare of the neighborhood.
Ernie Jones, Electronic Research, Inc. (ERI), gave a brief summary of his qualifications for the
record. He stated the new tower design meets and exceeds the minimum structural standards for
steel towers, and the specifications were submitted as part of the Building Permit process. Mr.
Jones stated the new structure is 1.65 times stronger than the old structure due to increased design
code requirements. He explained the older tower was constructed with pipe which is subject to
corrosion, cracking, and deterioration; however, the new tower was constructed with solid round
steel construction. In response to CommissionerGeile,Mr.Jones stated he is a structural engineer,
therefore, he is unable to determine whether there is interference between the Regent and Fox 31
towers.
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Mr. Lind stated Building Permit#BC030382 was issued September 9, 2003, and the application
materials contain engineering reports and technical data which show compliance with local,state,
and national codes. He submitted a letter, marked Exhibit J,dated Jan 5,2004,from Latham and
Watkins, LLP, which is a firm that was hired to present the application before the FCC. He
explained applications to the FCC are reviewed and may or may not require a hearing at which time
the FCC will make a decision. Mr. Lind stated this facility was reviewed by the FCC which
concluded there is no interference with any other facilities in the region. He submitted a letter,
marked Exhibit I, from du Treil, Lundin and Rackley, Inc., dated Jan 5, 2004, that indicates
compliance with all FCC regulations and requirements. He stated their opinion is also that there is
no interference and less radiation emitted at ground level from the new tower compared to the old
tower.
David Remund,Vice-President for Regent,stated Regent bought the station out of bankruptcy. He
stated at the time there was a number of FCC permits and projects in the process and he had to
determine which projects to pursue. He stated this project was filed prior to the bankruptcy,and he
saw the benefit of improving the site with a new tower and providing more space and safety. He
stated the FCC grants construction permits for three-year periods, and the pending permit was
going to expire so they requested an early release of the Building Permit from Weld County to satisfy
FCC and FAA requirements.
Quin Morrison,Chief Radio Engineer for KUND,stated in 1976 the old tower was hit by an airplane.
He stated the damage was repaired;however,he still felt the structural integrity was compromised
and that it needed to be replaced. He further stated there is also a need for expansion, and they
intend to attract more customers for the new tower. He stated at one time there were three FM
tenants on the original Fox 31 tower and they had commitments to transfer to the new tower;
however,the new owners would not provide new lease papers and they were unable to relocate to
the new tower as indicated by the previous owners.
Mr. Lind stated there is an operating agreement under negotiation between Fox 31 and Regent
which was required by the Planning Commission. He stated the terms address the access road,
easements for guy wires,fencing,lighting,etcetera. He further stated the corporate council for Fox
31 and Regent have had some discussions and a new operating agreement has been proposed,
as referenced in the letter dated March 2,2004, marked Exhibit N. He stated Regent accepted all
of the recommendations made by Fox 31,with the exception of accepting language stating Regent
must have consent from Fox 31 for any future modifications to the new tower. He explained the
FCC has exclusive authority regarding modifications to tower and transmissions,and consent from
Fox 31 also interferes with the controls and land use regulations of Weld County. He stated the
tower is limited to the plans shown in the application materials and on the plat,and any modifications
would require approval of an amended Use by Special Review Permit regardless of whether Fox
31 agrees or not. He stated there have been no further communications with Fox since March 2,
2004.
Cal Hall,Vice President and General Manager for KUND,stated the increased height expands and
upgrades the station's coverage, as well as improves the community service they are providing.
In response to Mr. Lind, Mr. Hall stated since they moved to the new tower they have not received
any complaints from Fox 31 regarding interference.
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Neil Best, KUNC General Manager,concurred with the previous testimony and stated the increased
height allows for better service. He stated their station operates based on community support,
therefore, moving higher on the antenna allows them to provide better service and reach more
members of the public who are likely to support their business. Responding to Mr. Lind, Mr. Best
stated since operating from the new tower they have received no complaints from Fox 31 regarding
interference; however, they have received compliments from the listeners.
Mr. Lind stated the new tower was designed to handle co-location with other radio stations and
transmitting facilities, which reduces the need for another new tower in the area. He stated any
changes or modifications will require FCC approval, as well as review by County staff and an
amendment to this permit. He stated,if approved,the work to remove the old tower will commence
this week. He stated the specific engineering designs and plans are almost complete, and it will
take approximately one month to remove the structure and clean up the site. Responding to
Commissioner Geile, Mr. Lind stated Fox 31 has no vested interest in the old or new towers,which
are owned by Regent. He explained all three towers are located on a 160-acre parcel,and they are
permitted under separate Use by Special Review Permits with recorded plats. He further stated
the proposed operating agreement has incorporated the provisions as proposed by Fox 31,and they
have been accepted by Regent, with the one exception regarding consent by Fox 31 for any
modifications.
Mark Grueskin, attorney, stated Fox 31 does not oppose the new tower, its improvements, or
operations; however,they are opposed to the construction of the new tower prior to the completion
of the Use by Special Review Permit process. He stated although there was an operating
agreement between the previous owners,Regent took the property out of bankruptcy and acquired
the property free and clear without any encumbrances, therefore, the original agreement was
assumed void. He stated Fox 31 representatives attended the Planning Commission hearing and
expressed concern regarding the need to establish a basic fundamental agreement, which is a
common practice throughout the industry. He stated the Planning Commission instructed the
applicant to commence negotiations regarding an operating agreement, and he gave a brief
summary of the correspondence which has been sent between the two parties. He stated there has
been no further correspondence following receipt of the letter dated March 2,2004, marked Exhibit
N,and it was not even considered as part of this process until requested by Fox 31 at the Planning
Commission hearing. He stated if this permit is approved, there will be no reason for Regent to
pursue an operating agreement. He stated Fox 31 would like to have an agreement which
establishes the responsibilities of both parties to provide notice of modifications, assurance of
access because the two facilities share a road, and identification of the various cross easements
for guy wires. Mr. Grueskin expressed concern with the letters provided by Mr. Lind because they
do not provide absolute assurance that there will be no interference. He stated at this point they
have not been able to come to an agreement, and he is uncertain of the progress being made by
the corporate attorneys. He suggested this hearing be continued for 30 days to allow the parties to
complete an operating agreement. Responding to Commissioner Geile, Mr. Grueskin stated the
Operating Agreement that has been submitted and marked Exhibit N, includes terms that are
sufficient for deliberating whether the issues can be addressed. However, at the Planning
Commission hearing the applicant indicated there was no need for an operating agreement and
there has been minimal communication since that time. He stated the submitted agreement is
unsigned and does not provide any assurance of insurance or notification of modifications. In
response to Commissioner Jerke, Mr.Grueskin stated the County does not have the jurisdiction to
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create an ordinance that restricts interference because that is under the jurisdiction of the FCC;
however, there are no federal laws which prohibit tower owners from entering into agreements
which stipulate how they will deal with interference in the event it does occur. There being no further
comments, Chair Pro-Tem Jerke closed public testimony.
Mr. Lind stated the parties can agree to an operating agreement; however, the FCC has specific
procedures which can be pursued if anyone is of the opinion that interference is occurring. He
stated there are leases,amendments,and supplements that specifically identify the easements for
the road and cables. He stated at the request of the Planning Commission, the applicant has
provided evidence of access to the properties from Weld County Road 90, marked Exhibit L. He
stated there is no agreement regarding maintenance of the road; however,common law indicates
both parties are responsible. He further stated the leases for the two properties provide for cross
easements,and there are specific meets and bounds which have been surveyed for the locations
of the towers, guy wires, etcetera, as shown on the plats. Mr. Lind stated everything proposed by
Fox 31 was incorporated into the submitted operating agreement,with one exception. He stated
there is a lawsuit by Fox 31 against Regent requesting revocation of Building Permits and to cease
use of the new tower. He expressed concern that if this hearing is continued, Fox 31 will acquire
veto power by declining to sign an operating agreement. He stated a Use by Special Review Permit
should not be dependent on a separate agreement with a third party,and he feels there will be an
operating agreement in the future. In response to Commissioner Geile,Mr.Lind stated the original
operating agreement was not listed as part of the bankruptcy assets,it did not show in the title work,
and it is not clear whether it is binding. He stated all of the terms from the old agreement have been
incorporated into the new agreement, in addition to more current terms. Responding further to
Commissioner Geile, Mr. Lind stated the new version has been accepted by Regent and will be
signed if Fox agrees.
Responding to Chair Pro-Tem Jerke,Mr.Lind stated he and the applicant have reviewed and concur
with the Conditions of Approval and Development Standards as proposed. He stated they have
provided a request to vacate Conditional Use Permit#9,marked Exhibit K,as well as a report from
the Sheriffs Office regarding the Crime Prevention through Environmental Design Program,marked
Exhibit M. He stated the fencing and lighting,as requested by staff,is acceptable,and the specific
lease provisions regarding access from the County road has been provided in Exhibit L. He stated
they would be agreeable to incorporating the provisions of the proposed operating agreement into
the Conditions of Approval and Development Standards. Mr. Morrison expressed concern that
some of the agreement terms have reciprocal requirements that involve Fox 31. Commissioner
Jerke commented there are also terms in the agreement that may be contrary to the intent of this
permit and are not within the jurisdiction of the County. Mr. Morrison stated the Board does have
the option of continuing this hearing to allow the parties to negotiate the terms of an operating
agreement,or adding a Condition that requires submittal of a signed agreement prior to recording
the plat or at least making an attempt to address Fox 31's concerns. He stated the briefs for the
court case regarding the early release of Building Permits have been filed; however, the parties
could request the court to stay its decision until a time when there has been final resolution
regarding this permit. Chair Pro-Tem Jerke commented he is not interested in continuing this
matter since there are only three Commissioners present and a continuance would require the two
Commissioners who are absent to review the entire record. Commissioner Geile commented there
has been adequate testimony,he is not interested in continuing this hearing,and he feels the terms
of the proposed operating agreement are adequate to litigate.
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Commissioner Geile moved to approve the request of Regent Broadcasting of Fort Collins, Inc.,for
a Site Specific Development Plan and Use by Special Review Permit #1457 for one (1) Radio
Communication Transmission Tower over seventy feet in height(755 feet) in the A(Agricultural)
Zone District,based on the recommendations of the Planning staff and the Planning Commission,
with the Conditions of Approval and Development Standards as entered into the record. The motion
was seconded by Commissioner Long,who also stated if this hearing is continued then Fox gains
some level of veto power. Chair Pro-Tem Jerke concurred and stated the applicant has shown due
diligence in pursuing an agreement and he feels these companies will be able to resolve the minor
issues of concern. There being no further discussion, the motion carried unanimously. Mr. Lind
stated they will continue to work diligently to enter into an agreement with Fox 31 and he will report
to the County Attorney if an agreement is reached. The hearing was completed at 11:45 a.m.
This Certification was approved on the 22nd day of March 2004.
APPROVED:
doss,„„,,, BOARD OF COUNTY COMMISSIONERS
, \' 1 / \ WELD COUNTY, COLORADO
00.101I �� EXCUSED
a""�StA �'n• Robert D. Masden, Chair
.,,t••Co lerk to the Board
N* •( ti \ �� William . -rke, Pro-Tem
•
t lawls�_ _ +�_
reputy Clerk to the Board
M. J. ele
TAPE #2004-11 i
David E. Long /
DOCKET#2004-22 EXCUSED
Glenn Vaad
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EXHIBIT INVENTORY CONTROL SHEET
Case USR#1457 - REGENT BROADCASTING OF FORT COLLINS, INC.
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 01/06/2004)
D. Clerk to the Board Notice of Hearing
E. Lind, Lawrence and Ottenhoff, LLP Letter and Proposed Operating Agreement
(02/02/2004)
F. Lind, Lawrence and Ottenhoff, LLP Tower Site Inspection report from
Electronics Research, Inc.
G. Planning Staff Certification and Photo of sign posting
H. Ken Lind FOX Application (03/14/1994)
Ken Lind Letter from du Treil, Lundin and Rackley,
Inc. (01/05/2004)
J. Ken Lind Letter from Latham and Watkins, LLC
(01/05/2004)
K. Ken Lind Request to Vacate CUP #9
L. Ken Lind Identification of Existing Access to WCR 90
M. Ken Lind Report re: Crime Prevention through
Environmental Design Program
N. Ken Lind Draft Operating Agreement (03/02/2004)
O.
P.
O.
R.
S.
T.
ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 17TH DAY OF MARCH, 2004:
DOCKET#2004-21 - RALPH AND BARBARA MAY
DOCKET#2004-22 - REGENT BROADCASTING OF FORT COLLINS, INC.
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