HomeMy WebLinkAbout20033100.tiff Courtlink
From: CLMaiI [CLMail@fileandserve.lexisnexis.com]
Sent: Thursday, October 30, 2003 8:31 AM
To: PCourtlink
Subject: CourtLink eFile USMail Delivery for(CO)2628126_768420+17
FC
Li"
Verified Motion for Order on Verified
.pdf Mo.pdf
2628126 768420+17
Vaad, Glenn
c/o Weld County Government
915 10th Street
Greeley, CO 80631
To: Vaad, Glenn
From: LexisNexis File & Serve
Subject: Service of Documents in Fox Television Stations, Inc. v.
Board of County Commissioners of Weld County
You are being served documents that have been electronically filed in
Fox
Television Stations, Inc. v. Board of County Commissioners of Weld
County
through LexisNexis File & Serve. The details of this filing are listed
below.
Court: CO Weld County District Court 19th JD
Case Name: Fox Television Stations, Inc. v.
Board of County Commissioners of Weld County
Case Number: 2003CV1390
Filing ID: 2628126
Document Title (s) :
Verified Motion for Special Admission of Counsel Pro Hac Vice
Order on Verified Motion for Special Admission of Counsel Pro
Hac
Vice
Authorized Date/Time: Oct 30 2003 10:30AM ET
Authorizing Attorney: Kenneth F Lind
Authorizing Attorney Firm: Lind Lawrence & Ottenhoff LLP
Filing Parties:
Regent Broadcasting of Fort Collins, Inc.
You are not currently a subscriber to the LexisNexis File & Serve
Service.
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Television Stations, Inc. v. Board of County Commissioners of Weld
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«Verified Motion for .pdf» «Order on Verified Mo.pdf»
1
//- QS °---3 0.9. 2003-3100
•T" LexisNexis-
CourtLink"
October 30, 2003
The documents enclosed are part of a case that is being electronically filed and
either you or someone in your firm is being served.
The firm representing the filing party in this case is a subscriber to LexisNexis'" File &
Serve, the e-filing solution for the assigned jurisdiction. You are receiving these
documents via the U.S. Mail because you or your firm are not yet subscribers to
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Enclosed in this envelope are the following documents:
• A filing details page, which includes the Court, Case
Number, Case Class, and court filing information
• The pleading(s)filed with the court
Please note that while the pleading in this packet appears unsigned, when
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13427 N.E. 16th Street • Suite 100 • Bellevue,WA 98005
www.lexisnexis.com/courtlink
DISTRICT COURT, WELD COUNTY, COLORADO
Address: 9th Street & 9th Avenue
P.O. Box 2038
Greeley, CO 80632
Plaintiff:
FOX TELEVISION STATIONS, INC.,
a Delaware corporation
v.
Defendants:
BOARD OF COUNTY COMMISSIONERS OF tCOURT USE ONLY 4
WELD COUNTY; WELD COUNTY; DAVID E.
LONG; ROBERT D. MADSEN; M.J. GEILE;
WILLIAM H. JERKE; AND GLENN VAAD, in their
official capacities as Weld County Commissioners;
REGENT BROADCASTING OF FORT COLLINS,
INC., a Delaware corporation
Kenneth F. Lind, Esq.
Lind, Lawrence & Ottenhoff LLP Case No. 03-CV-1390
1011 11`h Avenue
Greeley, CO 80631 Division No. 1
Telephone: (970) 353-2323
Fax: (970) 356-1111
E-mail: ken@llolaw.com
Attorney Registration No. 7792
John J. Kropp, Esq.
Graydon Head & Ritchey LLP
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202
Telephone: (513) 621-6464
Fax: (513) 651-3836
E-mail:jkrormeoravdon.com
Ohio Attorney Registration No. 0018158
VERIFIED MOTION FOR SPECIAL ADMISSION OF COUNSEL
PRO HAC VICE
COMES NOW, Defendant Regent Broadcasting of Fort Collins, Inc., by and through
its attorneys, LIND, LAWRENCE & OTTENHOFF LLP , by Kenneth F. Lind, Esq., and
GRAYDON, HEAD& RITCHEY, LLP by John J. Kropp, Esq., and hereby moves this Court
for the special admittance of John J. Kropp, of GRAYDON, HEAD, & RITCHEY, LLP pro
hac vice,to serve as co-counsel in the above-captioned matter, pursuant to Rules 121 '1-
2 and 221, C.R.C.P. As grounds therefor, Defendants counsel sets forth the following:
1. John J. Kropp is a practicing attorney licensed for law practice in the State of Ohio,
and is counsel with the firm of Graydon, Head& Ritchey, LLP, 1900 Fifth Third Center, 511
Walnut Street, Cincinnati, OH 45202.
2. Although Mr. Kropp is not a member of the Colorado Bar, he has been licensed to
practice law in the following jurisdictions:
OHIO
3. No disciplinary or grievance proceedings have ever been filed or initiated against
Mr. Kropp.
4. Within the past five years, Mr. Kropp has sought pro hac vice admission in the
following cases (indicate case name, case number, date, and whether or not admitted):
IN THE CIRCUIT COURT OF CHESTERFIELD COUNTY, VIRGINIA
CASE NUMBER: CL 99-285
NAP Chesterfield, L.P., et al., a Georgia Limited Partnership, et al.
vs.
J.H. Martin & Sons, Contractors, Inc., et al.
Admission was granted on July 23, 1999.
5. Mr. Kropp has notified the represented party, Regent Broadcasting of Fort Collins,
Inc., of this request for permission to appear pro hac vice.
•
6. Mr. Kropp acknowledges that he is subject to all applicable provisions of the
Colorado Rules of Professional Conduct and the Colorado Rules of Civil Procedure, have
read such rules, and that such will be followed throughout the pro hac vice admission.
7. The Movants local counsel, Kenneth F. Lind of Lind, Lawrence & Ottenhoff LLP,
1011 11th
Avenue, Greeley, CO 80631, is licensed to practice law in the state of Colorado
and is a member in good standing of the Colorado Bar.
8. The Movant=s local counsel, Kenneth F. Lind, shall maintain his involvement in this
case as co-counsel.
Dated: October 30, 2003
GRAYDON, HEAD & RITCHEY, LLP LIND, LAWRENCE & OTTENHOFF, LLP
By: By: --
John J. Kropp, Ohio # 0018158 Kenneth F. Lind, #7792
Attorneys for Defendant Regent
Broadcasting of Ft. Collins, Inc.
E-flled per Rule 121
Duly signed copy on file
at the law offices of
Lind, Lawrence&Ottenhoff LLP
VERIFICATION
STATE OF OHIO
) ss.
COUNTY OF HAMILTON
I have read the foregoing Verified Motion for Special Admission of Counsel Pro Hac
Vice, and the same is true and accurate to the best of my knowledge and belief and
complies with the Colorado Rules of Professional Conduct and the Colorado Rules of Civil
Procedure.
John J. Kropp
Subscribed and sworn to before me this ____ day of October, 2003 by John J.
Kropp, Esq.
Witness my hand and official seal.
My commission expires:
Notary Public
CERTIFICATE OF SERVICE AND MAILING
I hereby certify that on the 30th day of October, 2003, a copy of the foregoing
VERIFIED MOTION FOR SPECIAL ADMISSION OF COUNSEL PRO HAC VICE was duly
delivered to the following via Justice Link E-filing and/or mailed in the United States mail,
postage prepaid and properly addressed to:
Colorado Supreme Court
Attorney Registration Office
600 171 Street, Suite 305-S
Denver, CO 80202-5433
Mark G. Grueskin, Esq.
Blain D. Myhre, Esq.
ISAACSON, ROSENBAUM, WOODS & LEVY, P.C.
633 17th Street, Suite 2200
Denver, CO 80202
Lee Morrison, Weld County Attorney
915 10th Street
Greeley, CO 80631
David Remund, VPE
Regent Broadcasting of Fort Collins, Inc.
710 Cassidy Court
Yuba City, CA 95991
Cindy B. Gormley, Legal Assistant
E-filed per Rule 121
Duly signed copy on file
at the law offices of
Lind, Lawrence&Ottenhoff LLP
359726.1
DISTRICT COURT, WELD COUNTY, COLORADO
Address: 9th Street& 9t Avenue
P.O. Box 2038
Greeley, CO 80632
Plaintiff:
FOX TELEVISION STATIONS, INC.,
a Delaware corporation
v.
Defendants: ACOURT USE ONLY A
BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY; WELD COUNTY; DAVID E.
LONG; ROBERT D. MADSEN; M.J. GEILE;
WILLIAM H. JERKE; AND GLENN VAAD, in their
official capacities as Weld County Commissioners;
REGENT BROADCASTING OF FORT COLLINS,
INC., a Delaware corporation
Kenneth F. Lind, Esq.
Lind, Lawrence & Ottenhoff LLP Case No. 03-CV-1390
1011 11th Avenue
Greeley, CO 80631 Division No. 1
Telephone: (970) 353-2323
Fax: (970) 356-1111
E-mail: ken@llolaw.com
Attorney Registration No. 7792
John J. Kropp, Esq.
Graydon Head & Ritchey LLP
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202
Telephone: (513) 621-6464
Fax: (513) 651-3836
E-mail:jkropocWciravdon.com
Ohio Attorney Registration No. 0018158
C:\Documenls and Settingsyladnun\My Documents\ConversbnWorkDir\646_200310301523000830.wpd
ORDER ON VERIFIED MOTION FOR
SPECIAL ADMISSION OF COUNSEL PRO HAC VICE
THE COURT having considered the Verified Motion for Special Admission of Counsel pro
hac vice concerning Defendant Regent Communications of Fort Collins, Inc.'s Ohio
counsel, and any responses or objections thereto, and being fully advised of the record
and the premises, makes the following Findings and Order
1. The Verified Motion for Special Admission of Counsel pro hac vice requests special
admission of counsel pro hac vice in the above-captioned matter of John J. Kropp, a
licensed attorney currently practicing in the State of Ohio with the law firm of Graydon,
Head& Ritchey, LLP, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, OH 45202.
2. The Motion requests special admission of Mr. Kropp for the representation of
Defendant Regent Broadcasting of Fort Collins, Inc., as co-counsel to said defendant's
Colorado attorney of record, Kenneth F. Lind of Lind, Lawrence & Ottenhoff LLP, a
licensed Colorado attorney in good standing who will remain involved as co-counsel in the
above-captioned case.
3. The Verified Motion for Special Admission of Counsel pro hac vice complies with
the Colorado Rules of Professional Conduct and the Colorado Rules of Civil Procedure.
NOW THEREFORE IT IS HEREBY ORDERED:
John J. Kropp, attorney, is hereby specially admitted in the above-captioned matter for
representation as co-counsel of Defendant Regent Broadcasting of Fort Collins, Inc.
DONE this __ day of_ , 2003.
BY THE COURT
District Court Judge
C:\Documents and Settings\jladmin\My Documents\ConversionWorkoir\646_200310301523000830.wpd
Courtlink
From: CLMaiI [CLMail@fileandserve.lexisnexis.com]
Sent: Thursday, October 30, 2003 8:51 AM
To: PCourtlink
Subject: CourtLink eFile USMail Delivery for(CO)2628332_768420+17
04
Defendant Regent
Bro.pdf
2628332 768420+17
Vaad, Glenn
c/o Weld County Government
915 10th Street
Greeley, CO 80631
To: Vaad, Glenn
From: LexisNexis File & Serve
Subject: Service of Documents in Fox Television Stations, Inc. v.
Board of County Commissioners of Weld County
You are being served documents that have been electronically filed in
Fox
Television Stations, Inc. v. Board of County Commissioners of Weld
County
through LexisNexis File & Serve. The details of this filing are listed
below.
Court: CO Weld County District Court 19th JD
Case Name: Fox Television Stations, Inc. v.
Board of County Commissioners of Weld County
Case Number: 2003CV1390
Filing ID: 2628332
Document Title(s) :
Defendant Regent Broadcasting of Fort Collins, Inc Motion to
Dismiss
Pursuant to Rules 12b1 and 12b5 CRCP, Motion for Summary Judgment
Pursuant
to Rule 56 CRCP, Motion for Sanctions Pursuant to Rule 11 CRCP, and
Motion
for Attorney Fees and Costs Pursuant to CRS 13 17 101
Authorized Date/Time: Oct 30 2003 10:50AM ET
Authorizing Attorney: Kenneth F Lind
Authorizing Attorney Firm: Lind Lawrence & Ottenhoff LLP
Filing Parties:
Regent Broadcasting of Fort Collins, Inc.
You are not currently a subscriber to the LexisNexis File & Serve
Service.
Subscribing to LexisNexis File & Serve allows you to file and serve in
Fox
Television Stations, Inc. v. Board of County Commissioners of Weld
County
electronically. Signing up is fast and easy. Visit us at
http://www.LexisNexis.com/FileAndServe and click "Sign Up" to begin.
If you have not received all documents (1) for this filing or believe
you
have received this message in error, please contact LexisNexis Customer
1
9@rvice by phone at 1-888-529-7587.
<<Defendant Regent Bro.pdf>>
2
®." LexisNexisTM
CourtLink•
October 30, 2003
The documents enclosed are part of a case that is being electronically filed and
either you or someone in your firm is being served.
The firm representing the filing party in this case is a subscriber to LexisNexis' File &
Serve, the e-filing solution for the assigned jurisdiction. You are receiving these
documents via the U.S. Mail because you or your firm are not yet subscribers to
LexisNexis File & Serve, or because the court's case management information does not
include you as the attorney of record for this case although you were on the certificate of
service.
Enclosed in this envelope are the following documents:
• A filing details page, which includes the Court, Case
Number, Case Class, and court filing information
• The pleading(s)filed with the court
Please note that while the pleading in this packet appears unsigned, when
documents are filed electronically through LexisNexis File & Serve, the filing
attorney uses their User ID and Password to sign on to the system and that User
Id and Password represents their"electronic signature."
If you have any questions about the documents contained in this transaction or if you
think you have received these documents in error, please contact the filing firm.
Electronic filing is being used to give law firms greater direct control over the filing and serving
of documents and to eliminate the uncertainty and cost of the paper-based process. To view
a copy of the court rules governing e-filing, visit www.lexisnexis.com/fileandserve, select"E-
filing Rules" and view the appropriate jurisdiction.
If you are interested in finding out more about how LexisNexis File & Serve can help your
law firm, visit us at www.lexisnexis.com/fileandserve or call us at 1.800.869.1910. We
would be happy to talk with you about our free online training and how to get your firm
started with e-filing.
Sincerely,
LexisNexis'
LexisNexis CourtLink, Inc.
13427 N.E. 16th Street• Suite 100 • Bellevue,WA 98005
wwwlexisnexis.com/courtlink
DISTRICT COURT, WELD COUNTY, COLORADO
Address: 9th Street & 9th Avenue
P.O. Box 2038
Greeley, CO 80632
Plaintiff:
FOX TELEVISION STATIONS, INC.,
a Delaware corporation
v.
Defendants: ACOURT USE ONLY A
BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY; WELD COUNTY; DAVID E.
LONG; ROBERT D. MADSEN; M.J. GEILE;
WILLIAM H. JERKE; AND GLENN VAAD, in their
official capacities as Weld County Commissioners;
REGENT BROADCASTING OF FORT COLLINS,
INC., a Delaware corporation
Kenneth F. Lind, Esq.
Lind, Lawrence & Ottenhoff LLP Case No. 03-CV-1390
1011 11'h Avenue
Greeley, CO 80631 Division No. 1
Telephone: (970) 353-2323
Fax: (970) 356-1111
E-mail: ken@llolaw.com
Attorney Registration No. 7792
John J. Kropp, Esq.
Graydon Head & Ritchey LLP
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202
Telephone: (513) 621-6464
Fax: (513) 651-3836
E-mail:jkroopegravdon.com
Ohio Attorney Registration No. 0018158
C:\Documenls and Setlingsyladmin\My Documents\ConversionWorkDir\311_200310301547090669.wpd
DEFENDANT REGENT BROADCASTING OF FORT COLLINS, INC.'S MOTION TO
DISMISS PURSUANT TO RULES 12(b)(1) AND 12(b)(5) C.R.C.P.,
MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 C.R.C.P.,
MOTION FOR SANCTIONS PURSUANT TO RULE 11 C.R.C.P., AND
MOTION FOR ATTORNEY FEES AND COSTS PURSUANT TO C.R.S. §13-17-101
COMES NOW one of the named Defendants, REGENT BROADCASTING OF FORT
COLLINS, INC. ("Regent") and by and through its attorneys LIND, LAWRENCE &
OTTENHOFF, LLP by Kenneth F. Lind, Esq. and GRAYDEN HEAD & RITCHEY, LLP by
John J. Kropp, Esq. and respectfully moves this court to enter an order dismissing
Plaintiffs Complaint in this matter for failure to state a claim for which relief can be granted
pursuant to Rule 12(b)(5) of the Colorado Rules of Civil Procedure ("C.R.C.P."), and for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and for judgment against
Plaintiff pursuant to Rule 56 C.R.C.P. Regent further requests this court to award recovery
of its costs, reasonable attorney fees and other appropriate fees against Plaintiff for
bringing a substantially groundless complaint.
I. MOTION TO DISMISS PURSUANT TO RULES 12(b)(1) and 12(b)(5) C.R.C.P.
1. Plaintiffs first claim for Rule 106(a)(4) C.R.C.P. relief fails to state a claim for relief
because Weld County, as a Home-Rule County pursuant to C.R.S.§30-11-501, et
seq. and the Colorado Constitution, Article 14, Sec. 16., has enacted its own
charter and regulations governing building permits and zoning,thereby superceding
the provisions of C.R.S. §30-28-114 in this matter. Therefore, C.R.S. §30-28-114
does not apply to establish the alleged abuse of discretion or exceeded jurisdiction
as required by Rule 106(a)(4) C.R.C.P.
2. Plaintiffs entire Rule 106(a)(4)C.R.C.P.complaint must be dismissed as this court
lacks jurisdiction to hear the claim because Plaintiff has not met its burden to show
it has no other plain, speedy and adequate remedy as a pre-requisite to bringing
a Rule 106(a)(4) claim, and because the issuance of the building permit is not ripe
for consideration.
3. Plaintiffs complaint must also be dismissed for lack of subject matter jurisdiction
because Plaintiff failed to exhaust its administrative remedies prior to bringing the
complaint, because it failed to appeal the issuance of the building permit to the
Weld County Board of Appeals, pursuant to Weld County Code §29-10-10, before
bringing this action. Janssen v. Denver Career Service Board, 998 P.2d 9 (CoA
1999, reh. den.); Heron v. City of Denver, 131 Cob. 501, 283 P.2d 647 (1955).
C:\Documents and SettingsVadmin\My Documents\ConversionWorkDir\311_200310301547090669.wpd
II. MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 C.R.C.P.
4. Regent is entitled to summary judgment against Plaintiff as to both claims because
the material, genuine, indisputable facts of public record show no plausible dispute
that the action complained of—issuance of a building permit—was not the action of
the BOCC. Thus, Plaintiff fails to meet its burden to show abuse of discretion or
exceeded jurisdiction to show no other adequate speedy remedy at law, and to
show exhaustion of administrative remedies through the Weld County Board of
Appeals, as required by Rule 106(a)(4) C.R.C.P.
5. Both of Plaintiffs claims fail as a matter of law because Plaintiff cites no legal
authority which prohibit the BOCC from approving an agreement concerning the
early release of a building permit and indemnification.
6. Plaintiffs second claim fails because the undisputable material facts as shown in
the public records of Weld County reveal that Regent complied with the Weld
County Code requirements in all aspects of its application submissions, and that
the Weld County Department of Planning Services reviewed the building permit
application prior to the issuance of the building permit by the Weld County Building
Inspection Department. As Plaintiffs second claim is founded entirely on bald
assertions which the public records disprove beyond doubt,the claim fails as wholly
unsupported in fact, and Regent is entitled to judgment against the Plaintiff.
III. MOTION FOR SANCTIONS PURSUANT TO RULE 11 C.R.C.P.
7. Regent is entitled to seek sanctions against Plaintiff Pursuant to Rule 11 C.R.C.P.
because the claims are not grounded in fact, easily verified, are not warranted by
existing law, and there is no good faith argument or basis for the extension,
modification or reversal of existing law. Regent is therefore entitled to recover its
costs, attorney fees and other appropriate fees incurred in responding to and
defending against Plaintiffs complaint.
IV. MOTION FOR ATTORNEYS FEES AND COSTS PURSUANT §13-17-101, et seq.
8. Regent is entitled to recover against the Plaintiff Regent's costs and reasonable
attorney fees incurred in this matter pursuant to §13-17-101 because the
allegations supporting the claims are substantially groundless, lacking substantial
justification.
Monuments and Settingsyladmin\My Documents\Con ersionWorkdr1311 200310301547090669.wpd
V. BRIEF IN SUPPORT
9. Regent incorporates its Brief in Support of Motion to Dismiss Pursuant to Rule 12
C.R.C.P., Motion to Dismiss Pursuant to Rule 56 C.R.C.P., Motion for Sanctions
Pursuant to Rule 11 C.R.C.P., and Motion for Attorney Fees and Costs Pursuant
to C.R.S. §13-17-101
WHEREFORE, Defendant Regent Broadcasting of Fort Collins, Inc. requests the Court to
enter an order dismissing Plaintiffs complaint with prejudice and awarding Regent its
reasonable attorney fees, costs and other appropriate fees against the Plaintiff pursuant
to Rule 11 C.R.C.P. and C.R.S. §13-17-101, et seq., and for such other additional relief
as the Court deems just and proper.
Dated: October 30, 2003
LIND, LAWRENCE & OTTENHOFF LLP GRAYDON HEAD & RITCHEY LLP
By: By:
Kenneth F. Lind, #7792 John J. Kropp, Ohio #0018158
E-filed per Rule 121
Duly signed copy on file
at the law offices of
Lind, Lawrence &Ottenhoff LLP
CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of October, 2003, a copy of the foregoing
Defendant Regent Broadcasting of Fort Collins, Inc.'s Motion to Dismiss Pursuant to Rules
12(b)(1) AND 12(b)(5) C.R.C.P.; Motion for Summary Judgment Pursuant to Rule 56
C.R.C.P.; Motion for Sanctions Pursuant to Rule 11 C.R.C.P.; Motion for Attorney Fees
and Costs Pursuant to C.R.S. §13-17-101 was duly delivered to the following via Justice
Link E-filing:
Mark G. Grueskin, Esq.
Blain D. Myhre, Esq.
ISAACSON, ROSENBAUM, WOODS & LEVY, P.C.
633 17'" Street, Suite 2200
Denver, CO 80202
Lee Morrison, Weld County Attorney
915 10'h Street
Greeley, CO 80631
Monuments and Setings'Iadmin\My Documents\ConversionWorkDiA311200310301547090669.wpd
Cindy B. Gormley, Legal Assistant
E-filed per Rule 121
Duly signed copy on file
at the law offices of
Lind, Lawrence &Ottenhoff LLP
C:\Documen6:and Setttngsyladmin\My Documents\ConversionWorkDir\311_200310301547090669.wpd
Courtlink
From: CLMaiI [CLMail@fileandserve.lexisnexis.com]
Sent: Thursday, October 30, 2003 9:52 AM
To: PCourtlink
Subject: CourtLink eFile USMail Delivery for(CO)2629264_768392+17
17,-41
EFIUNG
DEFICIENCY N.pdf
2629264 768392+17
Board of County Commissioners of Weld County
915 10th Street
Greeley, CO 80631
To: Board of County Commissioners of Weld County
From: LexisNexis File & Serve
Subject: Service of Documents in Fox Television Stations, Inc. v.
Board of County Commissioners of Weld County
You are being served documents that have been electronically filed in
Fox
Television Stations, Inc. v. Board of County Commissioners of Weld
County
through LexisNexis File & Serve. The details of this filing are listed
below.
Court: CO Weld County District Court 19th JD
Case Name: Fox Television Stations, Inc. v.
Board of County Commissioners of Weld County
Case Number: 2003CV1390
Filing ID: 2629264
Document Title(s) :
EFILING DEFICIENCY NOTICE TO ATTORNEY LIND FROM COURT
Authorized Date/Time: Oct 30 2003 11:50AM ET
Authorizing Attorney: Roger A Klein
Authorizing Attorney Firm: CO Weld County District Court 19th JD
Filing Parties:
N/A
You are not currently a subscriber to the LexisNexis File & Serve
Service.
Subscribing to LexisNexis File & Serve allows you to file and serve in
Fox
Television Stations, Inc. v. Board of County Commissioners of Weld
County
electronically. Signing up is fast and easy. Visit us at
http://www.LexisNexis.com/FileAndServe and click "Sign Up" to begin.
If you have not received all documents (1) for this filing or believe
you
have received this message in error, please contact LexisNexis Customer
Service by phone at 1-888-529-7587.
<<EFILING DEFICIENCY N.pdf>>
1
•TM LexisNexisiM
CourtLink°
October 30, 2003
The documents enclosed are part of a case that is being electronically filed and
either you or someone in your firm is being served.
The firm representing the filing party in this case is a subscriber to LexisNexis"' File &
Serve, the e-filing solution for the assigned jurisdiction. You are receiving these
documents via the U.S. Mail because you or your firm are not yet subscribers to
LexisNexis File & Serve, or because the court's case management information does not
include you as the attorney of record for this case although you were on the certificate of
service.
Enclosed in this envelope are the following documents:
• A filing details page, which includes the Court, Case
Number, Case Class, and court filing information
• The pleading(s) filed with the court
Please note that while the pleading in this packet appears unsigned, when
documents are filed electronically through LexisNexis File & Serve, the filing
attorney uses their User ID and Password to sign on to the system and that User
Id and Password represents their"electronic signature."
If you have any questions about the documents contained in this transaction or if you
think you have received these documents in error, please contact the filing firm.
Electronic filing is being used to give law firms greater direct control over the filing and serving
of documents and to eliminate the uncertainty and cost of the paper-based process. To view
a copy of the court rules governing e-filing, visit www.lexisnexis.com/fileandserve, select "E-
filing Rules" and view the appropriate jurisdiction.
If you are interested in finding out more about how LexisNexis File & Serve can help your
law firm, visit us at www.lexisnexis.com/fileandserve or call us at 1.800.869.1910. We
would be happy to talk with you about our free online training and how to get your firm
started with e-filing.
Sincerely,
LexisNexisTM
LexisNexis CourtLink, Inc.
13427 N.E. 16th Street • Suite 100 • Bellevue,WA 98005
www.lexisnexis.com/courtlink
MEMO
Date: October 30, 2003
To: Kenneth Lind, Esq.
Re: Case No. 03CV1390 Fox v. Board of County Commissioners, et al.
Motion to Dismiss, Motion for Summary Judgment & Motion for
Attorney's Fees & Costs
Deficiency re: e-filing dated 10-30-03
From: Joyce Lewis, Division Clerk
Division 1, Weld County District Court
(970) 351-7300, Extension 4554
We are in receipt of the above-referenced e-filing submitted by your
office. It will be necessary for you to make the following correction in order for
the court to process your pleading:
A proposed order must be submitted (in Microsoft Word or WordPerfect
format) whenever the court is expected to make a ruling on an issue. Also, it
would be greatly appreciated if you could condense your case caption on
pleadings in this matter so that the title of the pleading could be included on
the first page rather than the second.
Thank you in advance for your prompt attention to this matter.
CouNink
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,411i
Brief in Support of Exhibit A-E.pdf Exhibit F.pdf Exhibit G.pdf Exhibit H.pdf
.pdf
2628493 768407+17
Long, David E.
c/o Weld County Government
915 10th Street
Greeley, CO 80631
To: Long, David E.
From: LexisNexis File & Serve
Subject: Service of Documents in Fox Television Stations, Inc. v.
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Case Name: Fox Television Stations, Inc. v.
Board of County Commissioners of Weld County
Case Number: 2003CV1390
Filing ID: 2628493
Document Title (s) :
Brief in Support of Motion to Dismiss Pursuant to Rule 12 CRCP,
Motion to Dismiss Pursuant to Rule 56 CRCP, Motion for Sanctions
Pursuant to
Rule 11 CRCP, and Motion for Attorney Fees and Costs Pursuant to CRS 13
17
101
Exhibit A - E
Exhibit F
Exhibit G
Exhibit H
Authorized Date/Time: Oct 30 2003 11:14AM ET
Authorizing Attorney: Kenneth F Lind
Authorizing Attorney Firm: Lind Lawrence & Ottenhoff LLP
Filing Parties:
Regent Broadcasting of Fort Collins, Inc.
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DISTRICT COURT, WELD COUNTY, COLORADO
Address: 9th Street & 9'"Avenue
P.O. Box 2038
Greeley, CO 80632
Plaintiff:
FOX TELEVISION STATIONS, INC.,
a Delaware corporation,
v.
Defendants: ACOURT USE ONLY•
BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY; WELD COUNTY; DAVID E.
LONG; ROBERT D. MADSEN; M.J. GEILE;
WILLIAM H. JERKE; AND GLENN VAAD, in their
official capacities as Weld County Commissioners;
REGENT BROADCASTING OF FORT COLLINS,
INC., a Delaware corporation
Kenneth F. Lind, Esq.
Lind, Lawrence & Ottenhoff LLP Case No. 03-CV-1390
1011 11th Avenue
Greeley, CO 80631 Division No. 1
Telephone: (970) 353-2323
Fax: (970) 356-1111
E-mail: ken@llolaw.com
Attorney Registration No. 7792
John J. Kropp, Esq.
Graydon Head & Ritchey LLP
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202
Telephone: (513) 621-6464
Fax: (513) 651-3836
Email:jkropDWgraydon.com
Ohio Attorney Registration No. 0018158
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BRIEF IN SUPPORT OF MOTION TO DISMISS PURSUANT TO RULE 12 C.R.C.P.,
MOTION TO DISMISS PURSUANT TO RULE 56 C.R.C.P.,
MOTION FOR SANCTIONS PURSUANT TO RULE 11 C.R.C.P. AND
MOTION FOR ATTORNEY FEES AND COSTS PURSUANT TO C.R.S. §13-17-101
REGENT COMMUNICATIONS OF FORT COLLINS, INC. ("Regent") by and through its
attorneys, LIND, LAWRENCE & OTTENHOFF, LLP by Kenneth F. Lind, Esq. and
GRAYDON, HEAD AND RITCHEY, LLP by John J. Kropp, Esq., submits the following in
support of its Motion to Dismiss under Rule 12 C.R.C.P., Motion to Dismiss Pursuant to
Rule 56 C.R.C.P., Motion for Sanctions Pursuant to Rule 11 C.R.C.P., and Motion for
Attorney Fees and Costs Pursuant to C.R.S. §13-17-101.
Factual Background
In 1975, one of Regent's predecessors, Wells-Tenneson, leased a parcel of land and
obtained from Weld County, Conditional Use Permit #9, to construct a 605 foot radio
tower ("Existing Tower").
On April 14, 1994, Plaintiffs predecessor, Denver Television Inc. d/b/a KDVR ("DTI")
applied to Weld County for a Use By Special Review (USR) for the purpose of
constructing a 738-foot guyed television communications tower and transmission facility
("TV Tower"), said tower being approximately 150 feet northwest of the Existing Tower.
This USR is referred to as USR#1047.
Prior to filing the USR application, specifically on February 16, 1994, DTI applied for a
building permit for its TV Tower. On March 14, 1994 DTI sent a letter to Weld County
Planning requesting the early release and issuance of a building permit for the TV
Tower. See Exhibit "A", attached and incorporated herein.
The Weld County Department of Planning Services ("Planning Department") referred
said request to the Weld County Board of County Commissioners ("BOCC"). On April
20, 1994, the Planning Department sent a letter to DTI stating that a building permit
would issue for the TV Tower prior to the approval of the USR application. See Exhibit
"B" , attached and incorporated herein.
Building permit #BP43369 for the TV Tower was issued on April 29, 1994, prior to the
approval of USR #1047. This building permit expired on November 26, 1997 by
resolution of the BOCC.
On June 8, 1994, DTI's USR#1047 was approved, subject to, inter alia, development
standards including:
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-the tower was to be a 738-foot guyed communications tower
-construction must be in accordance with the Weld County Building Code
-if compliance was not met, the USR is subject to revocation
-the Existing Tower was to be removed before January 1, 1996
In November, 1994, DTI entered into a new land lease with the owners of the real
property, and a purchase and sale agreement with Wells-Tenneson for the TV Tower,
the Existing Tower and associated facilities.
DTI sent a letter dated December 1, 1994 to the Weld County Planning Department
explaining the need for both towers (the Existing Tower and the TV Tower, and that the
FM stations wanted to maintain their use on the Existing Tower. The letter stated
"There is no technical or safety reason that both towers cannot co-exist". See attached
Exhibit "C". On December 8, 1994, DTI applied for Amended USR #1047 to allow the
continuation of the Existing Tower. See attached Exhibit"D".
Amended USR #1047 was approved on February 8, 1995 for the benefit of DTI,
allowing both the Existing Tower and the TV Tower on the subject land.
In March,1995, Northern Colorado Radio, Inc. ("NCR"), a predecessor to Regent,
entered into an operating agreement with DTI and a lease assignment with the owners
of the real property, whereby the parcel of land for the Existing Tower was redefined
and assigned to NCR.
In 2000, NCR and/or its parent company, Brill Media Company, a predecessor to
Regent, applied for and received a Federal Communications Commission ("FCC")
permit (the "FCC Construction Permit") for the construction of the new proposed 753-
foot radio communications tower ("New Tower") to replace the Existing Tower in the
proposed New Tower location. DTI and Plaintiff had the right and opportunity to contest
the FCC Construction Permit and the New Tower before the FCC, but took no action.
In February, 2003, Regent acquired the Existing Tower, facilities, lease, FCC licenses
(including the FCC Construction Permit) and other radio station assets of KUAD-FM
from NCR and Brill Media Company's bankruptcy estate pursuant to a sale order of the
bankruptcy court.
In July 2003, after receiving final FCC approval for transfer of the permits from Brill
Media to Regent, Regent commenced efforts to obtain the necessary County permits
and authorization to construct the New Tower.
The New Tower is proposed to be located approximately 164 feet southeast from the
Existing Tower, actually further away from the TV Tower than the Existing Tower. After
the New Tower is completed, the Existing Tower will be removed, as the proposed use
of the New Tower is the same as the Existing Tower. Regent believes that the
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structural construction and safety of the New Tower will be superior to that of the
Existing Tower.
The FCC Construction Permit for the New Tower requires that the said New Tower be
operational not later than 3:00 a.m., November 22, 2003. Pursuant to FCC policy,
extensions of this deadline are not generally available to Regent. Because of the time
required to complete the USR process and because of the FCC Construction Permit
expiration deadline, Regent requested Weld County to allow the construction of the New
Tower before the USR procedure was complete. Accordingly, Regent's attorneys sent a
letter dated August 13, 2003 to the Director of Planning Services, Monica Daniels-Mica
("Director" or "MDM"), explaining the project and the need for early issuance of a
building permit, along with copies of the FCC Construction Permit; FCC Antenna
Structure Registration ("FCC-ASR"); Assignment of FCC-ASR; FAA No Hazard
Determination; and August 1, 2003 Engineering Design Summary concerning the New
Tower.
Pursuant to the Weld County Code, an application for such building permit was
submitted to the Weld County Building and Inspection Department on August 21, 2003.
On the face of the application is the required submittal information, including valuation
estimate for the New Tower. See Exhibit "E", attached and incorporated herein.
In addition to the application for building permit, Regent submitted: two sets of
engineered design summaries for the New Tower, a set of surveyed site and plot plans,
and copies of Regent's leasehold interest in the property (an allowable substitute for
warranty deed). Subsequently, pursuant to the Building Official's request, supplemental
construction plans for the New Tower were submitted on August 25, 2003.
In addition to the materials supplied to the Director on August 13, 2003, the Director
reviewed Regent's building permit application and approved the permit application
pursuant to Weld County Code ("WCC") §29-3-160, subject to an agreement to
indemnify the County for removal of the New Tower if the same did not get final
approval through the USR process. The Director's prior review of the building permit
application before the permit issued is reflected on the face of the September 9, 2003
building permit, "NOTE: USR/SE IN PROCESS-EARLY RELEASE PER MDM" and
"KUAD TOWER—EARLY RELEASE PER MDM". See Exhibit "F", attached and
incorporated herein.
On September 3, 2003, the Weld County Board of County Commissioners (BOCC)
reviewed and approved an agreement concerning the early issuance of the building
permit. See Exhibit "G", attached and incorporated herein. On September 9, 2003, the
BOCC signed the Resolution concerning the September 3, 2003 action. See Exhibit "H"
attached and incorporated herein.
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To meet certain conditions required by the BOCC for the early release of the building
permit, Regent submitted a performance deposit to the BOCC in the amount of
$105,600.00 on September 8, 2003 and submitted its USR application for the New
Tower to the Planning Department on September 9, 2003.
On September 9, 2003, the Building Official issued the building permit for the New
Tower, Building Permit #BCN-030382, after the Planning Department's review and
consideration of the permit application as noted on the face of the permit. (See Exhibit
"F", "early release per MDM").
On October 9, 2003 Plaintiff brought it's complaint under C.R.C.P. Rule 106(a)(4),
alleging that the BOCC approved the building permit prior to zoning and subdivision
review and approval, and in doing so has acted contrary to law, exceeding its
jurisdiction and authority, and that said action constitutes an abuse of discretion.
MOTION TO DISMISS UNDER RULE 12 C.R.C.P.
The foregoing is incorporated here as if fully set forth.
Plaintiff brings this action pursuant to Rule 106(a)(4) C.R.C.P., which states, in relevant
part:
(a) In the following cases relief may be obtained in the district court by appropriate
action under the practice described in the Colorado Rules of Procedure:
(4) Where any governmental body or officer or any lower judicial body exercising
judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion,
and there is no plain, speedy and adequate remedy otherwise provided by law: ....
C.R.C.P. Rule 106(a)(4), emphasis added.
Regent is entitled to judgment under C.R.C.P. Rule 12(b)(5) because the pleadings of
Plaintiffs complaint fail to satisfy the requirements for bringing a Rule 106(a)(4)
complaint.
I. PLAINTIFF'S FIRST CLAIM FOR RELIEF MUST BE DISMISSED PURSUANT
TO RULE 12(b)(5) BECAUSE WELD COUNTY IS A HOME-RULE COUNTY, WITH
ITS OWN GOVERNING CHARTER AND CODE OF REGULATIONS, AND THERE
CAN BE NO ABUSE OF DISCRETION OR EXCEEDING JURISDICTION CLAIM
BASED ON A VIOLATION OF C.R.S. 30-28-114.
Plaintiff alleges that the BOCC September 3, 2003 decision to authorize the early
release of the building permit violated C.R.S. 30-28-114 by "issuing the permit" before a
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•
determination (i.e. through the USR process) that the structure complies with all zoning
regulations. This argument serves as a basis for Plaintiffs assertion that the BOCC
acted outside its jurisdiction or abused its discretion.
Weld County is a Home Rule County, pursuant to Colorado Const. Art. 14 Sec. 16 and
C.R.S. §30-11-501 et seq., and has adopted its own code and charter. Therefore, the
statutory language of §30-28-114 is superceded by Weld County's zoning procedures
with respect to issuance of a building permit.
Colorado Constitution Article 14, Sec. 16 and C.R.S.§30-11-511 provides for counties to
establish home rule to govern all mandatory County functions. Weld County adopted its
charter effective January, 1976. (See Weld County Charter). Zoning is generally
considered a local matter. For instance, the Colorado Supreme Court was required to
look to a city's charter and ordinance to determine proper procedures for amendment of
a zoning map in McArthur v. Zabka, 494 P.2d 89, 177 Colo. 337 (1972). The state
statutory provisions exist to supplement where there is an absence of local legislation.
Rabinoff v. District Court In and For the City and County of Denver, 360 P.2d 114, 145
Cob. 225 (1961).
Here, Weld County has enacted its own charter and code and has enacted zoning and
building provisions which are not in contradiction to state statutes. The relevant County
code provisions are:
$ 29-1-120, defining the Building Official as the designated authority
charged with the administration and enforcement of the County building
codes;
$ 29-3-110 through 29-3-150, providing submission requirements for
building permits;
$ 29-3-160, providing for the Planning Departments review of building permit
applications prior to issuance to check compliance with the Zoning Code;
and
• 29-3-170, providing for Building Official's issuance of building permits.
As these provisions govern the subject of C.R.S.§30-28-114 and are not in
contravention of the statute, it is error as a matter of law for Plaintiff to allege a violation
of C.R.S. §30-28-114 as grounds for abuse of discretion or lack of jurisdiction, as the
legal question goes to compliance with the Weld County Code and not C.R.S. 30-28-
114. This claim must be dismissed for failure on its face to state a claim for relief.
Even were C.R.S. 30-28-114 to govern the issuance of the building permit, this claim
fails because the BOCC did not issue the building permit. The Building Official issued
the building permit only after the building permit application was reviewed by the
Planning Department to check conformance to the zoning regulations. Therefore, the
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statute was complied with in all respects, notwithstanding the Plaintiffs unsupported
allegations. (For further discussion, see Paragraph I of Regent's Rule 56 Motion for
Summary Judgment below.)
II. BOTH CLAIMS FOR RELIEF MUST BE DISMISSED BECAUSE PLAINTIFF
HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY THROUGH THE PENDING USE
BY SPECIAL REVIEW PROCEEDING.
Rule 106(a)(4) provides as a pre-requisite for judicial jurisdiction to consider a claim that
the proponent has no other plain, speedy and adequate remedy for the requested relief.
The agreement between Regent and the BOCC establishes the building permit issued is
subject to the condition that the New Tower will only remain standing if the USR
application is approved. The USR application is scheduled for a hearing before the
Weld County Planning Commission on January 6, 2004. It is anticipated that the BOCC
will consider this USR application in February, 2004. If Regent's pending USR
application is approved, then the building permit will remain in force. If Regent's
pending USR application is not approved, then Regent will have to remove the New
Tower. Plaintiff has opportunity to be fully heard in the USR proceedings and have its
objections to the USR and building permit considered there, and therefore this action is
not proper. Purcell v. Cob. Div. of Gaming, 919 P.2d 905 (COA 1996).
III. BOTH CLAIMS FOR RELIEF MUST BE DISMISSED BECAUSE THE ISSUE
OF THE BUILDING PERMIT IS NOT RIPE OR FINAL FOR REVIEW BY THIS COURT.
Since the building permit issue will be finally determined through the USR proceedings
for the New Tower, the matter is not ripe for consideration here. As stated above, the
building permit will be either finalized or nullified through the pending USR proceedings
in January and February, 2004. Thus, the building permit issuance is tentative and not
ripe for review by this Court. Janssen v. Denver Career Service Bd., 998 P2d 9 (COA
1999 reh.den.); Bad Boys of Cripple Creek Mining Co, Inc. v. City of Cripple Creek, 996
P2d 792 (COA 2000). (Inverse condemnation claim was not ripe to the extent it related
to issues being considered by County in separate proceeding).
IV. BOTH CLAIMS FOR RELIEF MUST BE DISMISSED FOR LACK OF SUBJECT
MATTER JURISDICTION BECAUSE THE PLAINTIFF DID NOT FIRST APPEAL THE
ISSUANCE OF THE BUILDING PERMIT TO THE BOARD OF APPEALS, AND
THEREBY HAS NOT EXHAUSTED ITS ADMINISTRATIVE REMEDIES BEFORE
BRINGING ITS COMPLAINT.
Plaintiffs entire complaint is an appeal of a decision to issue a building permit. Weld
County has specifically created a Board of Appeals to hear and decide appeals of
decisions or determinations of the Building Official. WCC §29-10-10. The members of
the Board of Appeals are to be uniquely qualified through their experience to consider
the technicalities surrounding building and construction issues. WCC §29-10-10.
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Although Plaintiff complains that the BOCC issued the permit, it is clearly a matter of
public record that the Weld County Building Inspection Department, under the direction
and authority of the Building Official, issued the permit. See Exhibit "F".
A party must pursue its available administrative remedies before seeking judicial review,
and if a plaintiff has not done so, a court is without subject matter jurisdiction to hear the
action. Janssen v. Denver Career Service Board, 998 P.2d 9, p. 9 (COA 1999, reh.
den.). This rule has been applied specifically to a Plaintiffs failure to appeal a building
permit issue to a locally-created board of appeals in Heron v. City of Denver, 131 Cob.
501, 283 P.2d 647 (1955). There, an engineer brought suit for mandatory injunction
requiring the city's building inspector to take action to allow a building permit to issue.
The Colorado Supreme Court upheld the lower court's ruling against the Plaintiff, adding
that it was error that the trial court did not grant defendants their relief on summary
judgment based on plaintiff's failure to exhaust its administrative remedies, because the
city code created a board of appeals for determining decisions of the chief building
inspector, and the plaintiff was required to seek relief before the Board of Appeals
before a judicial court could take jurisdiction of the claim. Id. at p. 507 (emphasis
added).
Plaintiff was therefore, required to appeal the Building Official's determination to issue
the permit before the Weld County Board of Appeals before it could file its action in this
Court, and this Court is without jurisdiction to hear this claim.
Although Rule 12(b)(5) motions are viewed with disfavor, such a motion should be
granted if it appears, after considering the allegations of the complaint favorably toward
the plaintiff, that the plaintiff cannot prove facts in support of its claim that would entitle
him to relief. Dorman v. Petrol Aspen, Inc. , 914 P.2d 909, 911 (Cob. 1996). As well,
the complaint may be dismissed where, as here, substantive law is lacking which would
entitle the plaintiff to its relief. Nelson v. Nelson, 497 P.2d 1284, 1286, 37 Colo. App. 63
(1972). Here, the claims must fail, because, as a matter of law, there could be no
requisite showing of abuse of discretion or excess jurisdiction in violation of C.R.S.
Section 30-28-114, and because Plaintiff has also failed to meet the Rule 106(a)(4)
requirement of no other speedy, adequate remedy due to the pending USR proceeding.
As well, the claim is not ripe for review to this Court, therefore, the complaint must be
dismissed with prejudice for failure to state a claim and for lack of subject matter
jurisdiction pursuant to C.R.C.P. Rules 12(b)(1) and 12(b)(5).
MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 C.R.C.P.
The foregoing is incorporated here as if fully set forth.
Defendant Regent is entitled to Summary Judgment pursuant to C.R.C.P. Rule 56 in
this matter because the genuine, material facts which cannot be disputed in this matter
establish that as a matter of law, the complaint fails. The purpose of summary judgment
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is to permit the allegations of the pleadings to be pierced, saving the time and expense
connected with trial when, based on undisputed facts, one party could not prevail.
Walcott v. Total Petroleum, Inc. 964 P.2D 609 (COA 1998, reh. den., cert. den.)
A genuine issue of material fact so as to defeat a motion for summary judgment cannot
be raised by bald assertions or allegations, but must be supported by affidavit or
otherwise set forth specific facts showing a genuine issue for trial. Brown v. Teitelbaum,
830 P.2d 1081 (COA 1991, cert. den.) The following allegations set forth in Plaintiffs
complaint do not create a genuine dispute of material fact, either because they wholly
lack support or are immaterial:
1. Plaintiff alleges in Paragraph 6 of its complaint that at the September 3, 2003
meeting of the Board of County Commissioners, the BOCC "approved a
resolution authorizing the `early release and issuance of a building permit'for the
proposed tower."
As stated in the meeting agenda and the resolution, the action of the BOCC on
September 3, 2003 was to approve an agreement concerning the early release
and issuance of a building permit for the New Tower. See Resolution, Exhibit
"G", attached and incorporated herein.
2. Plaintiff alleges in Paragraphs 7 and 10 of its complaint that the proximity of the
(New Tower) may threaten the physical safety of the Plaintiff Tower (TV Tower)
and its guy wires, and the Plaintiff Tower(TV Tower) will be within the fall zone of
the New Tower.
First, these facts are immaterial because the public records establish that the
Planning Department reviewed the building permit application prior to its
issuance. As well, the public record shows that this is not the first time these
issues have been considered by the County. The County certainly took these
issues into consideration when allowing Plaintiffs predecessor to build its TV
Tower approximately 155 feet from the Existing Tower back in 1994. The County
(and Plaintiffs predecessor as well) also certainly took it into consideration when
Plaintiffs predecessor submitted its 1994 application for Amended USR#1047 to
allow the Existing Tower to continue its operations along side the TV Tower.
The claim of closer proximity, like many of the Plaintiffs claims, is simply a bald
assertion. Had Plaintiff made a proper inquiry into the facts before filing its
complaint, it would have discovered that the USR plats on record with the County
as of September 9, 2003 show the New Tower will actually be further from the TV
Tower than the Existing Tower.
3. Plaintiff alleges in Paragraphs 8 and 9 of its complaint that the two FM stations
and the height of the tower may cause potential Radio Frequency Interference
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(RFI) and hazardous emissions, as well as interfering with antenna transmission
patterns.
As a factual matter, the Plaintiff is simply incorrect. But more importantly, these
allegations are immaterial, as the FCC has exclusive jurisdiction to determine all
issues related to radio frequency interference and emissions. These allegations
are beyond the jurisdiction of the County, and of this Court.
The Federal Communications Act of 1934 created a "unified and comprehensive
regulatory system" that regulates all aspects of radio communications, including
"technical and engineering aspects." National Broad. Co. v. United States, 319
U.S. 190, 214-215 (1943). See also, e.g., Head v. New Mexico Board of
Examiners in Optometry, 374 U.S. 190 (1943)(FCC's jurisdiction over radio
frequency regulation "is clearly exclusive"). And indeed, "Congress intended
federal regulation of RFI issues to be so pervasive as to occupy the field."
Southwestern Bell Wireless v. Johnson County Board of County Comm'rs, 199
F.3d 1185, 1192 (10th Cir. 1999).
Numerous cases in numerous courts have rejected attempts by states and
municipalities to step into the exclusively federal domain of radio frequency
regulation. Thus, for example, in Southwestern Bell, the U.S. Court of Appeals
for the Tenth Circuit rejected an attempt by the Johnson County, Kansas, Board
of County Commissioners to deny authority for the construction of radio towers
based on interference concerns. Recognizing the "broad" and "pervasive"
federal regulation of radio emissions and interference, the Tenth Circuit aligned
itself with "virtually all courts considering RFI preemption" and struck down the
County's attempt to regulate radio interference through zoning conditions. 199
F.3d 1191-1193.
Similarly, courts have struck down state attempts to exert authority over radio
interference through tort law. In Broyde v. Gotham Tower, Inc., 13 F.3d 994 (6th
Cir. 1994), for example, the U.S. Court of Appeals for the Sixth Circuit rejected a
state law nuisance claim against a radio broadcaster that was allegedly
interfering with household appliances. Even assuming, on a motion to dismiss,
that the broadcaster was in violation of various of the FCC's rules, the Sixth
Circuit nonetheless recognized that the FCC's jurisdiction over "the transmission
of radio signals 'is clearly exclusive.'" Id. at 997 (quoting Head v. New Mexico
Board of Examiners in Optometry, 374 U.S. 424, 430 n.6 (1963)). And the court
accordingly dismissed the tort claim that the licensee's broadcasts were causing
harm to the adjacent residents' property.
The Courts in both Southwestern Bell and Brovde noted that the County and the
adjacent residents, respectively, did not lack for an enforcement mechanism. On
the contrary, each court spelled out in elaborate dicta the various mechanisms
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that are available to parties who suffer harmful interference. They may "lodge
informal written complaints" with the FCC, they may "file petitions to deny" the
interfering party's license, Broyde, 13 F.3d at 994, and the FCC may "hold
proceedings for investigation," and "issue declaratory rulings" or otherwise use its
licensing authority and "enforcement process" to resolve such "interference
complaints," Southwestern Bell, 199 F.3d at 1193 n.4.
Here the same is true. The gravamen of the Plaintiffs allegations is that the
radio emissions from Regent's tower might interfere with the use of its own
facilities. The Plaintiff is wrong, of course, but that question is for the FCC; it is
not for the Weld County Board of County Commissioners to decide.
4. In Paragraphs 11 and 12 of the complaint, Plaintiff alleges that the BOCC
approved the building permit.
This allegation is absolutely wrong and is not supported by the Weld County
public records. The face of the September 3 Resolution, (signed on September
9, 2003) indicates the action of the BOCC was to merely authorize the early
issuance of a building permit if certain conditions, including indemnification, were
met. (See Exhibit "H").
Furthermore, Building Permit #BCN-030382, dated September 9, 2003, was
issued six days after the BOCC action, by the Building Official. See Exhibit "F".
5. In Paragraph 20 of its complaint, Plaintiff alleges that the building permit issued
without first being reviewed by the Planning Department.
This allegation is also absolutely wrong and not supported by the Weld County
public records. The Planning Department did review the building application prior
to issuance, and a notation referencing the Director on the face of the building
permit confirms this. (See Exhibit"F", "early release per MDM")
I. PLAINTIFF'S FIRST CLAIM FOR RELIEF MUST BE DISMISSED BECAUSE
THE FACTUAL RECORD UNDISPUTABLY SUPPORTS THAT THE BUILDING
OFFICIAL, NOT THE BOCC, ISSUED THE PERMIT IN SATISFACTION OF THE
GOVERNING LAW (WELD COUNTY CODE).
As stated above, Weld County is a Home-Rule County and has passed its own code to
govern zoning (and other) matters. The Weld County Code provides that the Building
Official has the authority to enforce the County building codes and issue building
permits, (WCC 29-1-120; 29-3-170), after the Planning Department has reviewed the
building permit application and "all pertinent submittals" to check compliance with the
zoning code. (WCC 29-3-160).
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•
The BOCC action took place on September 3, 2003, six days prior to the issuance of
the building permit. As well, the face of the written resolution sets forth that the action of
the BOCC was to authorize the early release of the building permit and to approve
certain conditions and indemnification. Building Permit #BCN030382 itself shows that
the Building Official issued the permit on September 9, 2003, as indicated on the face of
the permit. There is no fact to support that the BOCC issued the building permit in
violation of the code.
A. As a matter of law, because the BOCC did not issue the building permit there can
be no determination that in so doing the BOCC either abused its discretion or exceeded
its jurisdiction to so do.
In a Rule 106(a)(4) case, the court's review of the prior decision is limited to whether the
body or officer has abused its discretion or exceeded its jurisdiction. C.R.C.P. Rule
106(a)(4)(l).
Here, Plaintiffs complaint is that the BOCC abused its discretion or exceeded its
jurisdiction by issuing the building permit in violation of a state statute. In addition to
that, the legal application is in error (as stated above), the facts do not support this
claim no matter what regulatory scheme applies because the public records establish
that the BOCC did not issue the building permit, but rather the properly appointed
authority, the Building Official issued the permit. The factual record so clearly
establishes this fact that Plaintiffs factual grounds abuse of discretion or excess of
jurisdiction fails and so must be dismissed.
Summary judgment is proper to determine and apply the correct legal principles and
issues strictly as a matter of law, where the facts, as here, are either undisputed or are
so certain as to not be subject to dispute. Morland v. Durland Trust Co., 252 P.2d 98,
127 Colo. 5 (1952)(emphasis added); Brown v. Teitelbaum, 830 P.2d 1081 (COA 1991,
cert. den.) (mere allegations do not give rise to genuine issue of material fact without
specific support).
B. Otherwise, as to the undisputable facts here, no grounds of abuse of discretion or
exceeded iurisdiction can be shown because of compliance with the Weld County Code
(In fact, Plaintiffs predecessor's request for and use of this procedure for its TV Tower
in 1994 establishes that Plaintiff is fully aware that early issuance of a building permit
prior to completion of the USR proceeding is a valid exercise of authority in Weld
County).
Plaintiffs first complaint is that the BOCC abused its discretion when it "issued" the
building permit without consideration of a USR application. This claim fails both in
undisputable fact and in law. As stated above, the claim fails as it relies on the
statutory language of C.R.S. Section 30-28-114. But additionally the claim fails
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because the building permit was issued in accordance with the pertinent County
regulations.
The applicable Weld County Code section requires only that the Planning Department
review a building permit application in consideration of the zoning regulations. WCC 29-
3-160.
The record facts establish that the Director of Planning Services was on notice of the
pending building permit application as early as August 13, 2003 when Regent sent its
letter outlining the request for early issuance, along with the FCC Construction Permit,
ASR Registration, FCC Antenna Structure Registration, FAA No Hazard Determination
and the Engineering Design Summary. That the Planning Department had reviewed
the building permit application prior to building permit's issuance is confirmed by a
notation on the face of the building permit indicating that the Director had considered
the building permit application and was fully aware of the pendency of the USR
proceeding, in compliance with the code provisions. (See Exhibit "F", "early release
per MDM") WCC 29-3-160. Nowhere does the code require that a USR must be
completed prior to issuance of a building permit.
There being no substance to Plaintiffs allegations that the permit was issued without
compliance to the law, the first claim for relief fails in fact as well as in law. An action
will be found an arbitrary and capricious abuse of discretion only if the action is devoid
of evidentiary support. Came v. Civil Service Commission, 30 P3d. 861 (COA 2001)
The documentation serves as evidentiary support that the County officials acted within
the procedures and authority as designated by the County code. Here, Plaintiffs
allegation that the proper procedures were not followed is itself devoid of evidentiary
support and must fail.
II. PLAINTIFF'S FIRST CLAIM FOR RELIEF MUST ALSO BE DISMISSED
BECAUSE THE PLAINTIFF CANNOT SUPPORT THAT THE BOCC ACTION OF
AUTHORIZING EARLY RELEASE OF THE BUILDING PERMIT WAS IN
CONTRAVENTION OF THE GOVERNING LAW (WELD COUNTY CODE), AND
THEREFORE AN ABUSE OF DISCRETION OR EXCEEDED JURISDICTION.
Nowhere does the County code prohibit the early issuance and release of a building
permit, or require that the USR process be completed before a building permit can be
issued. Plaintiff has cited no legal grounds that show the BOCC abused its discretion or
acted beyond its jurisdiction in simply authorizing the early release, as the final decision
of whether to issue or not issue the building permit was in the hands of the Building
Official.
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III. AS A MATTER OF LAW, IN ORDER TO APPEAL THE ISSUANCE OF THE
BUILDING PERMIT, PLAINTIFF WAS REQUIRED TO APPEAL THE ACTION OF
THE BUILDING OFFICIAL TO THE BOARD OF APPEALS BY WAY OF
EXHAUSTION OF ITS ADMINISTRATIVE REMEDIES, PRIOR TO BRINGING AN
APPEAL TO THIS COURT.
Because the facts establish beyond doubt that the Building Official issued the permit,
Plaintiff was required to appeal the issuance to the Board of Appeals. The Board of
Appeals was established to hear appeals concerning the decisions of the Building
Official. WCC 29-10-10. By failing to appeal to the Board of Appeals Plaintiff has failed
to exhaust its administrative remedies with respect to the issuance of the building
permit, and may not now seek its remedy in this court. Johnson v. Pueblo, 543 P.2d
1262 (Colo. 1975)
IV. THE UNDISPUTED GENUINE AND MATERIAL FACTS ESTABLISH THAT
THE FACTUAL GROUNDS OF PLAINTIFF'S SECOND CLAIM FOR RELIEF ARE
WHOLLY UNFOUNDED AND UNSUPPORTED, AND THEREFORE THE SECOND
CLAIM MUST BE DISMISSED.
Plaintiffs Second Claim for Relief alleges that the application for the building permit
consisted only of the August 13, 2003 letter, and did not comply with the County code
provisions requiring:
$ Written proof of ownership in the form of a warranty deed
$ The valuation of any new building or structure
$ A minimum of two sets of plans as required by WCC Sec. 29-3-130
through 29-3-150
Had Plaintiff reasonably inquired into the open and readily available public records
concerning the building permit issuance, Plaintiff would have discovered:
1. Written proof of Regent's leasehold interest in the subject property,
submitted on August 21, 2003;
2. Valuation of the proposed tower, submitted on August 21, 2003;
3. Two sets of plat plans, submitted on August 21, 2003;
4. Two sets of additional plans as requested by the Building Official and
submitted on August 25, 2003;
5. The Weld County Planning Department's review and approval of the
same, as indicated by initials of the Director on the building permit; and
6. The Building Official's issuance of the building permit as indicated on the
face of the building permit, dated September 9, 2003.
Plaintiff further alleges in its second cause of action that the issuance of the building
permit was an abuse of discretion and beyond the BOCC's jurisdiction because it was
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issued without prior review by the Planning Department. Again, these allegations are
hopelessly flawed because the Planning Department did review the building application
and the BOCC did not issue the building permit.
Minimal investigation by Plaintiff into the public records would have provided facts rather
than the totally inaccurate and false allegations Plaintiff made to support its claims in
the complaint. Simply inspecting the public building permit records would have revealed
that the Building Official and not the BOCC issued the permit. Clearly, the documented
facts of public record refute the bare allegations Plaintiff submitted so obviously without
reasonable inquiry, and even further establish that the County did act within its
jurisdiction and discretion according to the provisions of the Weld County Code that
Plaintiff raised.
V. REGENT INCORPORATES ITS ARGUMENTS AND FACTS SET FORTH IN
ITS MOTION TO DISMISS UNDER RULE 12 C.R.C.P., ABOVE, AS FURTHER
GROUNDS JUSTIFYING DISMISSAL OF THIS ACTION PURSUANT TO C.R.C.P.
RULE 56.
The material facts being firmly established by the County's public records, Regent is
entitled to summary judgment against Plaintiff in this matter. There can be no doubt
that the Building Official issued the permit; the Planning Department reviewed the
permit prior to its issuance (assuring that under the circumstances all relevant portions
of the zoning code would be protected and enforced), and the BOCC did nothing more
than to approve an agreement concerning the early release of the building permit. As
these are all appropriate actions pursuant to the Weld County Code, within the sound
jurisdiction and discretion of the acting County officials, Regent is entitled to summary
judgment dismissing Plaintiffs complaint with prejudice. Brown v. Teitelbaum., supra,
at pp. 1084, 1085; Walcott v. Total Petroleum, supra, at p. 611.
MOTION FOR SANCTIONS PURSUANT TO RULE 11 C.R.C.P.
The foregoing is incorporated here as if fully set forth.
Plaintiffs actions in bringing its complaint are so lacking in factual and legal justification,
that Plaintiffs are subject to Rule 11 sanctions.
As stated above, the First Claim for Relief is wholly in error because the County is not
subject to C.R.S. §30-28-114 by means of its home rule status. The Second Claim for
Relief is clearly unsubstantiated by factual assertions which could have been verified by
simple and reasonable inquiry into readily attainable and open public records.
Rule 11, C.R.C.P. states that when an attorney signs a pleading he or she thereby
certifies that to the best of his or her "knowledge, information and belief formed after
reasonable inquiry, the pleading is well grounded in fact and is warranted by existing
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law or a good faith argument for the extension, modification, or reversal of existing law,
and that it is not interposed for any improper purpose, such as to harass or cause
unnecessary delay or needless increase in the cost of litigation." C.R.C.P. Rule 11(a),
emphasis added.
A court is authorized to impose Rule 11 sanctions if a claim is not well-grounded in fact
or is not warranted by existing law or good-faith attempt to establish new law or extend,
modify or reverse existing law. Reifschneider v. City and County of Denver, 917 P.2d
315 (COA 1995).
The standard of Rule 11 focuses on what should have been done before a pleading was
filed. Switzer v. Giron, 852 P.2d 1320 (COA 1993).
Rule 11 sanctions are not limited to attorney fees and litigation expenses, but may
include other reasonable expenses incurred as a result of the sanctionable conduct.
Schmidt Const. Co. v. Becker-Johnson Corp., 817 P.2d 625 (COA 1991)
Because the Plaintiff could easily have discovered that Weld County is a Home Rule
County and not governed in this instance by C.R.S. §30-28-114, and the factual
allegations upon which the Second Claim for Relief relies would have been disproven
upon reasonable inquiry into the public records, Plaintiff should be sanctioned under
Rule 11 for bringing this complaint.
MOTION FOR ATTORNEY FEES AND COSTS PURSUANT TO C.R.S. 613-17-101
The foregoing is incorporated here as if fully set forth.
Plaintiffs actions in bringing its complaint are substantially groundless, and therefore,
Regent is entitled to recover its attorney fees and costs against the Plaintiff.
Regent incorporates the foregoing as if fully set forth.
C.R.S. §13-17-101, et seq. provides that a court shall award reasonable attorney fees
against a party who has brought a civil action, either in whole or in part, that lacks
substantial justification in that it is substantially frivolous, substantially vexatious, or
substantially groundless. C.R.S. §13-17-101, §13-17-102.
As stated above, Plaintiff could have, with little effort, determined that the facts
supporting its claims are groundless. Ironically, Plaintiff has brought this action to attack
the very same procedure to which Plaintiff, or its predecessor, had availed itself of in
1994.
As to the First Claim of Relief, there is no rational argument to support the allegation
that the County has violated C.R.S. §30-28-114 because the County is a Home-Rule
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County and not within the scope of the statute in zoning matters. As to the Second
Claim of Relief, there is no rational argument to support the claim because the easily
verified facts actually prove against the basis on which the Plaintiff claims abuse of
discretion and exceeded jurisdiction.
Plaintiff alleged that the BOCC issued the building permit. Clearly, it did not. Plaintiff
alleged that Regent failed to submit proper application materials. Clearly it did submit
proper materials. Plaintiff alleged that the County Planning Department failed to review
the building permit application prior to its issuance. Clearly it did review the permit
application. These are the allegations which Plaintiff relied on to state its case. These
allegations were easily verifiable before filing suit. Plaintiffs entire action violates the
statutory intent against burdening courts with groundless litigation.
Therefore it is only proper and just to grant Regent recovery of its costs and reasonable
attorney fees pursuant to C.R.S. §13-17-101. Zick v. Krob, 872 P.2d 1290 (COA 1993)
(Claim is groundless if complaint contains allegations which are not supported by any
credible evidence, even if they are sufficient to survive a motion to dismiss for failure to
state a claim).
WHEREFORE, Defendant Regent Broadcasting of Fort Collins, Inc. requests the
complaint be dismissed with prejudice and that this Defendant be awarded its costs and
attorney fees and other appropriate fees against the Plaintiff pursuant to Rule 11,
C.R.C.P. and C.R.S. §13-17-101.
Dated: October 30, 2003
LIND, LAWRENCE & OTTENHOFF LLP GRAYDON HEAD & RITCHEY LLP
By: By:
Kenneth F. Lind, #7792 John J. Kropp, Ohio #0018158
E-filed per Rule 121
Duly signed copy on file
at the law offices of
Lind, Lawrence&Ottenhoff LLP
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CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of October, 2003, a copy of the foregoing
Brief in Support of Motion to Dismiss Pursuant to Rule 12 C.R.C.P., Motion to Dismiss
Pursuant to Rule 56 C.R.C.P., Motion for Sanctions Pursuant to Rule 11 C.R.C.P. and
Motion for Attorney Fees and Costs Pursuant to C.R.S. §13-17-101 was duly delivered
to the following via Justice Link E-filing:
Mark G. Grueskin, Esq.
Blain D. Myhre, Esq.
ISAACSON, ROSENBAUM, WOODS & LEVY, P.C.
633 17th Street, Suite 2200
Denver, CO 80202
Lee Morrison, Weld County Attorney
915 10th Street
Greeley, CO 80631
Cindy B. Gormley, Legal Assistant
E-filed per Rule 121
Duly signed copy on file
at the law offices of
Lind, Lawrence&Ottenhoff LLP
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MR 16 '94 02:33PM lowR P.2 1
FOX31' 501 Wares Street
K D V R DELIVER� Denver,Colorado 60204-5859
THEFOX THERopaES Phone(303)595-3131 Fax(303)595-6312
•
Moth 14,1994
Greg Thcapson
Ogren&Flamer
Weld Canty Administrative Offices
1400 N.17th Avenue
thusly,Caliendo 60631
Dem Mr.Thommen:
Caopratolat me en the new sdditiool Ahmost hate to being up Mirk,however 1 must.
I've been waiting for the paperwodt for the special review,Mn*eve me 1 understand why then has been a
delay.As per err last conversation,lam salting fora building permit to be drawn prior to the special review,
I understand that inuring the building permit will allow me to bt$d the building end replacement totem
however,should the tower height Increase Ham 605 feet to 735 kat be found to be is violation of FCC,FAA,
local ordlanaa,or be demonstrated to prism t clear and ddnite harm,that the tower height would
be Sneed to a bright between 605 fat and 735 fat as ts to be terminal to the special review Foreas.
As we dieenaeed,XDVRis anemone to pat this traasm$oer(KPCT)on the air bs tiros for the Fall football
soon.The increased height of the tower permits us to plea the TV netmna on the tower entice disturbing
the three FM radio stations that now campy the mining tower(f the tower is shortened,the height and thus
the aoversge of the three FM abtioas would be advert*affected.
The choice of 735 fed is based on FM approval,which sa I wiile this,is still pending.It is passible that the
FAA willreduce the allowed height to somewhere between 605}end 735 feet This is still peedmg as the
impacts of Denver's en depart we being assessed.The 735 feet height would serve all of the broadastere
as the tower,and slightly increase each of their operating heights.
We n waking with the FAA to i1t_ ..1._what the 6n1 h1814shouldbeinthisrange.We would Ma to opportunity to do the same with you.In wma of visibility and Open,there is my little 605 foot tower and a loot.The only time one couldtellthe m is the difference between
pitied rides.rides. ne when
bath towers ars standing side by side,boars the older tow is removed.
At this pant time is critical to this project,I appreciate your willingness to expedite the poled,
and please let me know of anything I can do,or any intimation I can provide you.
Sincerely,
Frederick IL Baumgartner
Engineering Munger
MFR 16 '94 14;36 3035958312 PAGE.002
EXHIBIT "A"
3+ .1
ficit
k‘aligH4D
DEPARTMENT OF PLANNING SERVICES
PHONE(303)353-3845,EXT.3540
�• WELD COUNTY ADMINISTRATIVE OFFICES
1400 N.17TH AVENUE
GREELEY,COLORADO 80631
COLORADO
April 20, 1994
Fred Baumgartner
Fox 31
501 Wazee Street
Denver, CO 80204
Subject: Building permit application, located on property described as part of
the W2 SE4 of Section 19, TBN, R66W of the 6th P.M., Weld County,
Colorado.
Dear Mr. Baumgartner:
The Board of County Commissioners has approved your request to issue the building
permit for the construction of the equipment building and placing of the foundation
for the proposed replacement tower. The Board's approval is conditional upon the
following:
1. All activities conducted on the property are at your own risk;
2. All construction shall be in accordance with the requirements of the Weld
County Building Code Ordinance;
3. You will comply with any County, State, or Federal requirements which may
apply to the use of the property;
4. You will comply with any conditions of approval or development standards
identified through the Special Review permit process;
5. If the Site Specific Development Plan and Special Review Permit are not
approved, Fox 31, will be responsible for removing any improvements not
authorized under the existing zoning and Conditional Use Permit 019.
EXHIBIT "B" -
Fred Baumgartner
April 20, 1994
Page 2
If you agree to the Board's foregoing conditions, please respond in writing that you
understand the conditions and they are acceptable to you. When I receive a written
response from you, the building permit will be issued.
If you have any questions, please call me.
Sincerely,
Current Planner II
pc: Board of County Commissioners
Building Inspection Department
KDVR
501 Wazee
Denver, Colorado 80204
Thursday-December 1,1994-12:05pm
Department of Planning Services
Weld County Administrative Offices
1400 N. 17th Avenue
Greeley, Colorado 80631
Dear Sirs:
On 8 June 1994,the Board of County Commissioners of Weld County,Colorado, conditionally
approved a Site Specific Development Plan and Special Review Permit requested by Denver
Television, Inc., dba KDVR.
The approval covered the construction of a 738-foot guyed communication tower in the A
(Agriculteral)Zone District,West of Pierce.This new tower is immediately adjacent to an
exisiting 600-foot tower.
This application seeks to amend the 8 June 1994 approval and requests that the older tower be
permitted to remain with the new tower.
In the original application,KDVR had indicated their desire to remove the exisiting tower,and
was granted until the end of 1995 to do such.At that time,it was assumed that there would be
little interest in retaining the older tower, and it's best value would be realized by selling it
disassembeld after the radio staion tennents had been moved to the new tower.
The purpose of this request is to permit one of,or a group of, the tennents using the exisiting
tower(currently KGLL,KUAD,KUNC, and Interlink Communications)to purchase the older
tower for their use.Besides the obvious advantage to the purchaser of"controlling their own
destiny" (tower space being essential to a broadcaster)it also makes more tower space available
in Weld County.With tower space available,it is more likely that future radio,TV,cellular
telephone,two-way radio and other services will opt to locate on existing towers rather than seek
to construct new sites.
This application is almost exactly as the application submitted in April 1994 as USR-1047.The
only change is that USR-1047 included the removal of the older tower, and this submission sears
to remove that condition. Thus,this application requests that the facility and use remain as they
are at this time.This being the case,there appears to be no traffic,environment,visual,or other
impact. There is no technical or safety reason that both towers can not coexist. Currently, the
Federal Aviation Administration has both towers permitted.
If there is any question concerning this request for amendment,please call me at 303-595-3131.
Sincerely, kit_
Frederick M Baumgartt er
Engineering Manager
EXHIBIT "C" .�
REQUEST FOR AMENDMENT TO USR-1047
APPLICATION FOR USE BY SPECIAL REVIEW
Subject Property: Township 8 North Range 66 West 6th P M Weld County Colorado
Section 19: A tract in the SE1/4 more particularly described as
commencing at SE1/4 corner of said Section 19, thence
West 1,216 feet to the True Point of Beginning,thence
North 1,600 feet,thence West 1,490 feet,thence South
1,600 feet,thence East 1,490 to the True Point of
Beginning, containing 54.73 acres,more or less.
Denver Television Inc.,dba KDVR
1 December 1994
This Request for Amendment of USR-1047 is presented as an Application for Use by Special
Review and consists of the application page to which this is attached,and the following, which
appeared as part of the original filing of 13 April 1994.
1. Affidavit of surface fee(property)owners within the USR area and adjacent surface estates.
2. Affidavit of interest owners-mineral estate-within the USR area.
3. One 81/2 x 11 copy of the Special Review plat.
4. Various approvals granted as part of the initial application
5.I apse agreement for the facility.
Attached also is the approved Special Review Plat(10 copies),and reductions.
Further exhibits are included.
PROPOSED USP: By this Application,Denver Television,Inc., dba KDVR("KDVR")seeks
amendment to a Use by Special Review("USR")to permit the existing tower, originally
proposed for removal,to remain functional on the site.
1
EXHIBIT "D"
NEED:Permitting the older tower to remain permits one or more of the existing tenants to
remain on the existing tower. The current tenants are KUNC-FM,KGLL-FM,ICUAD-FM and
Interlink. There appears to be some interest on the part of one or more of the existing tenants to
remain on the existing tower,purchasing it in order to control their tower space and control their
own destiny. Likewise,there have been inquiries on the part of KCSU-FM,the Fort Collins
public radio station, and an engineering firth seeking cellular tower space.Removing the existing
tower would deny these and any future users tower space and force them to seek to construct
another tower in Weld County. Given the interests shown by the various patties,KDVR requests
that the existing older tower be permitted to remain.
KDVR does not desire to be in the tower rental business, except as is required by the acquisition
of the original tower, or is responsible to provide other users access to a limited resource.
Further,KDVR has not sought rate increases from the current tenants and has extended
invitations to occupy the new tower in a more favorable location(higher)and extend the existing
lease terms for a significant period of time,without cost increase.
It is our opinion that Weld County and the various tower space users,now and in the future,
would best be served by granting this amendment.
EXISTING I JSF.S: The USR area is located approximately tree miles West of Pierce and has
been used solely for agriculture and the two existing broadcast towers and related transmitter
buildings.Zoning is A(Agriculture)at the site,the towers being located approximately 700 feet
north of WCR 90 and approximately 1,855 feet west of WCR 27. All surrounding land is used
for agriculture.
USE BY SPECIAL REVIEW QUESTIONNAIRE
1. The proposed amendment is consistent with the Weld County Comprehensive Plan as it is an
existing and approved use.
2. The proposed amendment is consistent with the intent of the zone district it is located in,as it
is an existing and approved use.
3. The proposed amendment is consistent with future development as stated in the Weld County
Comprehensive Plan as it is an existing and approved use,and has the potential of reducing the
number of radio sites needed in Weld County.
4. The surrounding property is agricultural.
5. The property is not located in a Flood Hazard zone, Geologic Hazard zone, or Airport Overlay
zone.
6. All efforts have been made to preserve productive agricultural land. A minimum of land is
precluded from agricultural use by this facility.
2
7. The property is secured and exterior warning signs are posted concerning the high-voltage
• equipment located within the secured buildings.There are no other known dangers.
8. The site will continue to be used, as it is now,for transmitting radio and television signals.
9. The nearest residence is to the West,approximately 1,500 feet, the next nearest residence is
approximately one-and-one-half mile. There are few residences in this area.
10. Only maintenance personal will visit the site, and this is occasional.
11. It would be unusual for more than two people to be on the site at any given time.
12. There are no domesticated animals involved.
13. The is no operating or process equipment involved.
14. There are no new structures requested.
15. Vehicle access will normally be made by passenger cars.
16. There are no septic or sewer services.
17. There are no waste materials to be stored on site.
18.Debris and junk will be periodically hauled to the dump.
19.No construction is proposed.
20.No landscaping change is proposed.
21. Complete reclamation plans are covered in USR-1047, 8 June 1994. In brief,the towers and
buildings will be removed at the end of their useful life.
22. This seeks amendment of the original USR. Simply, there being no reason to remove the
original tower, and there being some interest in maintaining the original tower for use by one or
more of the existing users, it is requested that the condition applied in USR-1047 be removed
permitting both towers to remain on the site.
23. Current fire protection is adequate and will continue.
24.No water is required.
25. There is no change in storm water drainage.
3
EXHIBIT LIST
1. Use By Special Review Application.
2. Original USR plat.
3. Site Location.
4. Topographic Map.
5. Aerial Photo.
6. Affidavit of interest owners-surface area and adjacent estates.
7. Affidavit of interest owners-mineral estate.
8. Surrounding property owners and/or subsurface owners.
9. Conditional approval notice for USR 1047.
10.USR-1047 Determination
11. Site Specific Development Plan
12. Power of Attorney, landowner to Denver Television Inc.
13. Legal Description-Original Tower.
14.Legal Description-New Tower
15.Legal Description for Site and guy anchors.
16.Map of new site.
17. FAA approval.
18.Lease between Dummler and Denver Television Inc..
4
� � BUILDING PERMIT APPLICATION
f WELD COUNTY BUILDING INS.eCTION WELD COUNTY BUILDING INSPECTION
NORTH LOCATION SOUTHWEST LOCATION
Mk 1555 N. 17TH
GREELEY,CO 8 631UE .5 4209 CR 24
LONGMONT,
EXT.3540 (720) CO 80504
6 852 524210 EXT.8730
PLOT PLANS AND WARRANTY DEED REQUIRED FOR ALL STRUCTURES
PROPERTY99PNER Regent Broadcasting of Fort Collins, Inc. PHONE 353-9233 (Quinn Morrison)
MAILING ADDRESS 600 Main Street, Windsor, CO 80550
JOB SITE ADDRESS nia
LEGAL DESCRIPTION 554 SEC. 19 .T B N.R 66 W DISTANCE FROM LOT LINES
OR SUBDIVISION LOT BLOCK N $ E W
GENERAL CONTRACTOR MAIUNG ADDRESS IDs PHONE
TO be determined
Project t.nasneer
-ME6w!•NICAk CONTRACTOR MAILING ADDRESS ID/ PHONE
7777 Gardner Road
Electronics Research, Inc.
Chandler, IN 47610-9637 812-925-6000
ELECTRICAL CONTRACTOR MAILING ADDRESS IDE PHONE
PLUMBING CONTRACTOR MAILING ADDRESS ID/ PHONE
PURPOSE FOR PERMIT TYPE OF PROJECT TYPE OF CONSTRUCTION 'TYPE OF FOUNDATION
O NEW BUILDING 0 OWELUNG 0 WOOD FRAME O BASEMENT
❑ ADDITION 0 PRIVATE GARAGE El STRUCTURAL STEEL 0 FINISHED-SF:
❑ REMODEL 0 ATTACHED 0 DETACHED 0 MASONRY 0 UNFINISHED-SF:
Ol REPAIR/REPLACEMENT 0 SINGLE O 2 CAR + 0 REINFORCED CONCRETE 0 CRAWLSPACE:SF
O ELECTRICAL 0 PUBLIC GARAGE O BRICK VENEER 0 SLAB
O MOVE-IN RESIDENCE 0 STORAGE SHED 0 POLE FRAME O CAISSONS
D OTHER Bl OTHER Tnwvr 0 OTHER 343 OTHER concrete/steel rebar
Tower
HEIGHT OFBUROR9ff ant_/OF STORIES: /OF FIREPLACES MASONRY: —O-CLEARANCE: _GAS LOG: _
CARPORT SIZE:_X— PATIO: 1ST SIZE: —X_2ND SIZE:—X--COVERED:O YES Q NO
NUMBER OF BEDROOMS: DECK: 1ST SIZE: v 2ND SIZE:—X-- COVERED:0 YES 0 NO
BATHROOMS FULL: —3/4:-_1/2:— PLOT PLAN ON FILE:❑YES 0 NO BLUEPRINT ON FILE:0 YES 0 NO
TOTAL LAND AREA: DRIVEWAY ACCESS: O EXISTING 0 NEW--ONORTH OSOUTH°EAST OWEST
O SINGLE FAMILY 0 TWO OR MORE FAMILY 0 MOTEL/HOTEL N OF UNITS k1 OTHER Tower
TYPE OF SEWAGE: n/a TYPE OF WATER: n/a TYPE OF HEAT: n/a LECTRICAL SERVICE:
❑PUBLIC-NAME: 0 PUBUC-NAME: 0 NAT.GAS-NAME: t NAME: FVREA
❑PRIVATE 0 PRIVATE O PROPANE-NAME: SIZE OF SVC: 800 AMPS
PERMIT I: PERMIT I: ❑ELECTRIC-NAME: CALCULATIONS:
PERC.TEST DATE: ❑OTHER
SQUARE FOOTAGE: n/a VALUE$ 450,000.00 BUILDING FEE$
•*DO NOT INCLUDE THE FOLLOWING ITEMS IN THE ABOVE PRICE**
MAIN LEVEL:
2ND LEVEL: ELECTRICAL COSTS $ n/a FEE/
FOUNDATION: CONSTRUCTION METER: O YES I NO FEE$
GARAGE: PLAN CHECK: O YES a NO FEE$ -
OTHER: OTHER: FEE 4
TOTAL FEES 1
MORE THAN ONEI1)RESIDENCE ON SITE?_YES X NO •
INCLUDE A BRIEF DESCRIPTION OF THE WORK BEING DONE LISTING THE INTENDED USE
—
Applicant is installing a 753 foot telecommunications (radio and TV) tower.
EXHIBIT "E"
I HEREBY CERTIFY THE ABOVEVIAD ATTACHED ION IS ECT AND
SIGNATURE OF APPLICANT / DATE ��
•
went
EXHIBIT "F"
Weld County Building Inspection Department
1555 North 17th Avenue,Greeley,CO 80631
970-353-6100,Ext.3540 Fax:970-3046498
Permit# BCN-030382 Status ISSUED
Applied 08/21/2003 Issued 09/09/2003 Expires 03/07/2004
Job Address 12665 CR 90 WEL Job Location 12665 CR 90 - KUAD TOWER
Job Description REMOVAL OF EXISTING TOWERS&REPLACING W/753'GUYED TELECOMMUNICATIONS(READIO
&TV)TOWER-NO ELECTRIC INCLUDED IN PERMIT
REF AMUSR-I047/CUP-9(BP05260&BP43369)
NOTE:USR/SE IN PROCESS-EARLY RELEASE PER MDM(LIN)
Occ.Class U-2 Construction Type: VN Zone District AGRICULTURAL
Parcel Number 0553-19-0-00-005
1997 UBC Valuation 450,000.00
APPLICANT IIND KEN 08/27/2003 Phone:970-353-2323
1011 11 AVE
GREELEY CO
80631
OWNER DUMLER VERA L TRUSTEE 08/28/2003
1502 SHERRI MAR ST
LONGMONT CO
80501
TENANT KUAD TOWER 09/02/2003
CONTRACTOR PROJECT ENGINEER 08/28/2003 Phone:812-925-6000
7777 GARDNER RD
CHANDLER IL
47610-9637
TENANT REGENT BROADCASTING OF FT C008/28f2003 Phone:970-353-9233
600 MAIN ST
WINDSOR CO
80550
Minimum Required Zoning Setbacks N- 25 S- 25-E- 25 W- 25
SETBACKS FROM SE BOUNDRY LINES
KUAD TOWER-EARLY REL PER MDM
FEE SUMMARY
Total Permit Fees 54,388.46
Total Payments .00
Balance Due 54,388.46
FEE BREAKDOWN SUMMARY
Dense Description Account Code Tot Fee Paid Prv.Pmts Cur.Pmts
2010 Building Permit 100025100-42 2,637.25 .00 .00 .00
2020 Electrical 10002510042 37.00 .00 .00 .00
2040 Building Plan C 10002510042 1,714.21 .00 .00 SO
NOTICE
The applicant.agents and empbyca shall comply with WIN mks.rouktions and requirements of Weld County Zoning and Building Code Ordinances governing
location,constriction,demolition and erection of the above proposed work for which this permit is granted.The building Official is authorized to order the immediate
cessation of work a any time a violation of the adopted codes or regulations appears to have secured. Violations of any codes or regulations may resuk in the revocation
of this perms.
Buildings must conform with the plans as submiued to the Building Inspection Department. Any changes to the plans or lay-out must be approved prior to construction.
•
Any changes in the use aaceupency of the building be approved.
It shall be the duty of the property owner or the person doing the work authorized by this permit to notify the Weld County Building Inspection Department that such work
is teady for inspection.
This permit shall expire by limitation and bonne null and void(the building or work authorised by this permit Is not commenced within 180 days from the date this
permit is issued,or if the building or work authorized by this permit is suspended or abandoned at anytime alter the work is commented for a period of 180 days. Before
such work me recommence a new permit shall be required and the charge shall be dit the fee under the cumin Weld Count/Building Inspection Fee Schedule provided
that such suspension or abandonment has not exceeded five(S)years. What suspension or abandonment has exceeded five(S)leers,the nominee shall pay the full
pennit fee under the eonent fee ahcedule.
Weld County is not liable for workmanship. yecmiu are not tranferabk.
form:BidgComb
Y T Y..^ e4[.'.PM .+'�F! �. ...rw ..� Tie..^.�•�1 0 a 'SiftT T...C
+ ,;� .� ..ttBUILDIMG 5HALL�NOT5 BE OC,CPI,E o BEFORE;FINAL APPROVALS ''
x 4 I - 4.H :LL t+aGx� BE. 4Yx%c.^ w Rr r•tF , t, T tt y , u .
_t p w o Be Postedlin, . nspicuous L• t • F•r r ^ s K '�
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As - „ • • LF`1:C n '){ 7 s�•3.+t
�Y " REMODEL N ADDITION D REM EW
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O TOB s ONE ' ' a ' C Y =. yv s t? -.44,t,
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a'4 V,.n= � 4., f� '"'DATE"*.'
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DATEy INSPECTOR ..DATE INSPECTOR c,, +reNSPE R •"' y� ',X„?
-pS�
v .tom *In J � HATE JNSPECTOR
i _ + - f s'os y' ` ..SEWER≥ ail' ,+ .r a• SEPTIWLEACN v '< :,t ▪ .� y
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OS ' t ` k • i-t�t`.�1'%� •• W#4 34.--..4,9::!-.0: s • (WATER SVC `+''+e- , ♦.; (=mar t tL Y+ 3 ��.k TVxG
N.NSSONSS'•= n''':'
'' #,krY i1'r''' 45 ACILRY-�.: t t_ %,�.' .IiF tiJ�' I:
;•-PQUR O CONCRETE UNT I,AB EISlava:,* , r 3 r a +" r r�li �'
' "' 1y al' DO ROT COVER UNTIL ABOVE IS SIGNED ;, ,,
PERUI + k,Y k t d DAMP S .µM -...N. ti mn m _ '�2.r:v-
DRAWSH'. �`'4 cG °e ;414,-'I, ..,,, .:ROQ _ ' :%-.,..=,
4 a -•PERMANENT LL.� fi. ry" Y `ii... -':' LEAK DETECT ,'b�wr.. It}�.` .+� _
'PETER ..,≥.- ... 1 o.K. SYSTEM^ aZ $-t • = .k''AO NOT BAQK FILL UNTIL ABOVE IS$KGNED ,S ;:�� � k''
> , t ' FLOOD NATARD. 7" ,J'4 > c >. Y ,�
e.••••"'" Net t �- PLUMBING . . 47:.K4:' ERTIFICATE.4?S `,Ai `7 t . • • r� tti ,Y •'i f`+
.` " • NDNtORK rZ 'L.� GROUNDW t • ''"
..4e...•. .+YY•.r y '
"NS #r a Lr ,Kv / al C S .rL• FwLL ate.B -r
« x,. n t ! •" +•` !" ' "' x FINAL HEATING n"Y`'' .` ' „� r K
.DETER .. It "A. ,.,t , -.N.4 ;S t P IMMO♦,ar '.� r �,�'
D NO V,�ER UNTIL`+_a z TIJI'yw'vp �4 - : �
.w. )' > ;r,• _ + e tELECTRIC. �i'; ,I StAi .: w .. .�.8.ext,• t.6. { t :Is 'ro 'Taff r ROUGH-IN{t3 tit/IV *we +< rr '�: - - "Yu c +�1�,, ! , - .H �w.
VY' NSW 1 M • =a� t�,. -.r.-.«' iicits t =1 .. a•
_ i .RAMPIG iY `' ffTw FLUESNENT9 '' �` tFWALi ro� t.+aot '$... 4 4 t y,' ` I+t.'f t 4<
WO
"= i UIPPROVALY'n is I lich'i. 3I' e . ti .7'''"-A”.. .Jt. '- ,s '. y
vEN o rs� y ;5.44 ROUo o SO 17}444: T OCCUPY UNTIL THE ABOVE IS SIGNED: j 1n
+' . ` : DOxNOTCOVER UNTIL ABOVE1SS td° j `< `'`u r �qlc �^z
`%.C . 1..+y•,. a ,ti
-k.:
,t4Ntt 'ti tv.\.:*/1,52`0A 2`0A ? '`+tit ."` 5n.? +x s r a�`rw �'` t , .p x '+,.
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v bT`.a 'L'tti f I .. Gry} H<f u*y.�,'r'S�FY i ` +�r.� �j'.'r` rN^,vt s. ♦., . = tiJ '.v,T Y? !�'" y4' ..
'•K. L 'K 7,E`;t1 .' ,1' 14,:+Y PZr 4� "� �`
+.r z FOR INSPECTION CALL 3504111�I6s 0RRw1 800 23 ,,_2534 Cl,UISIQF TI E. GREELEY CALLING RA .,)
t taw .. x • 'y.. I.. 7"THIS-PERMIT is N N't ANSFPRAFIFF * Fee,;,., ,a
WELD COUNTY BUILDING INSPECTION DEPARTMENT
'x^�fru cc NORTH E - ..
9FF10. SOUTFNIEBTOFFICEj
NORTH,
1$55 N.1'RN AVBNE'�. 420➢CR 245 `
GREELEY,CO 16p1 2 R.2.05ON1',CO W50/
100 EXT 9510 (710�SW210 tt790
I INSPECTION REQUEST INFORMATION
-FOR ALL BUILDING INSPECTION REQUESTS: •
?
• CALL 356-8016 INSIDE GREELEY CALLING ARMOR,
1-800. 234-2534.OUTSIDE THE GREELEY CALLING AREA:
I
t9,1;'7*.
Y�k � -F uT •Y E. Ti'
INSPECTION REQUEST LINE OPERATES 24 HOURS A DAY
a• .
BU• I PERMI °1 r , JI,t .1,
NAf=t.d I I
vt. S.7 ,: . .�T-
ADDRES[S/LEGAtL' s,f.
..''THE ABOVE INFORMATION PLUS THE EXACT INSPECTIONS YOU A
'"READY'FOR ARE REQUIRED WHENREQUESTING AN.INSPECTION IF
PERMIT NUMBER,THE REQUESTED INSPECTIONS) OR ADDRESS IS INCOMPL Ig
'OR CANNOT BE UNDERSTOOD FROM YOUR CALL,THERE IS A RISK THAT-
C-ANkalf BE SCHEDULED}'.WE'ARE NOT`RESPONSIBLEF• .;
' . INCOMPLETE OR NON UNDERSTANDABLE INSPECTION REQUESTS
yp.- ,+' l.r^l 'r•', `�i i LT'k'�it C. ,x' ,a4� as. J .31. F �a1� c'_
L ; s+Z t wit 004'4:00f004'4:00.r
YOU REQUEST AN INSPECTION 4:00 PM 0NANYBUSINESS0..
°'THE INSPECTION WILL BE MADE THE NEXT.BUSINESS DA IF YOU REQUES V
AN INSPECTION AF 4TER 00 P M THE INSPECTION WY.ILL BE MADE FOR ii
"~ 2ND BUSINESS DAY: ..
IF AN INSPECTION CIS SCHEDULED BUT'YOU ARE NOT READY FOR N•
INSPECTION, PLEASE CANCEL THE INSPECTION BY 8:30 AM ON THE DAY OF
THE INSPECTION. YOU MAY BE SUBJECT TO REINSPECTION FEES IF
YOU ARE NOT READY FOR THE REQUESTED INSPECTION OR•IF
THE INFORMATION REQUIRED ABOVE IS NOT PROVIDED. •
•
SEP-17-2003 WED 08:33 AM WELD CO GOVT rnn nu. aiu.,:,cut.gc. „
AGREEMENT
THIS AGREEMENT ('Agreement') is made and enters d Into this 2_ ', day of
September,2003, by and through the County of Weld. State of Colorado, acting through
its Board of County Commissioners ('County')and Regent Brcadcasting of Fort Collins,
Inc. ('Regent').
WITNESSETH
WHEREAS, Regent, by letter dated August 13, 2003 "Letter") applied for and
requested the early release and issuance of a building pe mit for a new 753 foot
radio/television tower("New Tower"); and
WHEREAS,the New Tower is to be located upon a pal cel of land located in the
Southeast One Quarter(SE%)of Section Nineteen(19),Township Eight(8)North,Range
Sixty-sus(66)West,Weld County, Colorado('Property"); and
WHEREAS, said Property Is the current site of two existing radio and television
towers permitted under Conditional Use Permit No. 9 and Ame ided USR 1047; and
WHEREAS, the New Tower will be a replacement for c ne of the existing towers
located on the Property;and
WHEREAS, Regent, In the materials submitted to Weld County under the Letter,
hes provided adequate proof and Justification for the early it lease and issuance of a
building permit for the New Tower before the New Tower can 3e considered by County
under a new Use by Special Review application ("New USR"):
NOW, THEREFORE, in consideration of the foregoing and the acceptance and
approval of the following conditions, County and Regent agree as follows:
1. The above recitals are Incorporated herein by refmsrence.
2. Regent shall submit to County a final and oomph ite New USR application,
such application to be filed not later than Septem per 29, 2003.
3. Regent shall provide to Weld County a performance guarantee cash deposit
in the amount of One Hundred Five Mouse id Six Hundred Dollars
($105,800.00)('Guarantee Deposir).
4. Said Guarantee Deposit shalt be held by County',striding final resolution and
determination of the New USR application.
Rvcruiteciskir eomumeArrosevcaroroAMCE auvunrEE.Wo
,.2003-2556
•
EXHIBIT "G" — 'PLO's%)
SEP-17-2003 WED 08:33 Atl WELL) lxl UUVI rnn nu. .]IUJJLUL4L . . - .
5. If the New USR is approved by County, the Guarantee Deposit shall be
returned by County to Regent within ten (10) days of the recording of the
USR plat in accordance with County procedures t and requirements.
6. In the event the New USR Is not approved.Regent shall have six(6)months
after final action to dismantle the New Tower and return the Property to Its
existing condition.
7. In the event Regent has not dismantled the New Tower and returned the
Property to its existing condition within said six(6)r ionth period.County then
has the right to dismantle the New Tower and nistore the Property to Its
existing condition with all appropriate and reasonable costs and expenses
thereof to be paid by Regent County shall h eve the right to use the
Guarantee Deposit for such dismantling and rest'iration and return excess
funds, if any, to Regent. In the event the funds are not adequate for the
dismantling and restoration (-Deficiency), Regent shall remain responsible
for payment to County of the additional costs as well as any other reasonable
expenses and costs including attorney fees incurred by Countyto collect any
such Deficiency.
8. Regent understands and accepts all risks assoclabid with construction of the
New Tower as there Is no Implied or expresn covenant, warranty or
guarantee that the New USR will be approved by County.
9. Upon payment of the Guarantee Deposit by Rage 1t,the early Issuance and
release of the requested building permit is authorizl►d without prejudice to the
rights of County.
1O. The Agreement shall be binding upon the parties and their successors and
assigns.
IN WITNESS WHEREOF,the parties have caused this 0 greement to be executed
on the day and year first above written.
BOARD OF COUNTY COMMISSIONS,
WELD COUNTY, COLORADO
e
kela
•
F.Y'R VEGFM COMMU ICATI0NSWERF0RMNNCe GuARANTaEwpd
SEP-17-2003 Wtu un:as an kit) Liu uvv
ATTEST: 1110111-4/2.44
IL`f � D Derd
D AS TO FORM:
By:
CDu
REGENT BROADCASTING OF FORT COLLINS. INC.
By.
Day J.�Aes�d, vice-President
FARFLIREGEWT COMMUNcaTIONMPERFORWNCE000W FEwp0
RESOLUTION
RE: APPROVE AGREEMENT CONCERNING EARLY RELEASE AND ISSUANCE OF
BUILDING PERMIT FOR A NEW 753 FOOT FLADIO/TELEVIIIION TOWER FOR
AMENDED USE BY SPECIAL REVIEW PERMIT#1047-RE SENT BROADCASTING
OF FORT COLLINS, INC.
WHEREAS,the Board of County Commissioners of Wald County. Colorado,pursuant to
Colorado statute and the Weld County Home Rule Charter,Is vested with the authority of
administering the affairs of Weld County, Colorado,and
WHEREAS, Amended Use by Special Review Permit#1047 was approved by the Board
of County Commissioners by Resolution on February 28, 1995,and
WHEREAS, Condition of Approval#2 of Amended Use by SF aural Review Permit#1047
requires that until the plat is ready to be recorded,no building or elec trloal permits shall be
issued on the property;however,the applicant has presented for apl/oval an agreement
concerning the early release and Issuance of a building permit for cc nstruction of a 753 foot
radio/television tower,to replace one of two existing towers, and
WHEREAS, the Board Is satisfied that the applicant has prov ded adequate proof and
justification for the early release and Issuance of a.building permit to•the new tower before it can
be considered by the County under a new Use By Special Review application.
NOW,THEREFORE, BE IT RESOLVED by the Board of Cot my Commissioners of
Weld County, Colorado,that the Board hereby authorizes the early Islease and issuance of a
building permit for Amended Use by Special Review Permit#1047
The above and foregoing Resolution was,on motion duly me de and seconded, adopted
by the following vote on the 3rd day of September,A.D.,2003.
B RD OF COUNT(COMMISSIONERS
COUNTY, CC ILO DO
/����_ I _
♦ , A yid E. Lo ,Chap
erk to the Board
Ro D. en, Pro-Te
irk o the = •and
� �►j� M. J. G i e
• ' m
AP AS O
Willie }I. Jerks
Unty Attorney .Q(fM�I40114
Glenn Vaad
Date of signature: 9-9-D3
2003-2556
EXHIBIT "H" PL0959
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