1

Canyon Area Residents for the Environment

Deb CarneyAttorney for C.A.R.E. 21789 Cabrini BlvdJuly 1, 2003

2

CANYON AREA RESIDENTS FOR THE ENVIRONMENT

Umbrella group forJeffco HOAs in Jeffco Central Mountains

• 9,000 people• 25 HOA speaker authorizations

– Each signed by 2 Board members of HOAs for CARE speakers

3

3,300 Signatures on Petition

“We oppose the rezoning application for a broadcast tower on Lookout Mountain filed by Lake Cedar Group Corporation and petition

Jefferson County to deny the proposal.”

Over 3,300 Signatures to Date

2002-2003 Petition

4

CARE Facts vs LCG IllusionsMassive Proposal Visual Improvement

Nonconforming must be eliminated

Can use towers for digital

Incompatible Compatible

Widespread radiation increased

Overall radiation reduced

Health Risk No Health Risk

Alternative Sites Work No Alternative Sites

5

VISUAL REALITY

Much Different than LCG simulation

6

Current Channel 4 Tower

5 ft Wide

7

10 ft Wide

New Proposed SUPER Tower

5 ft WideHeavier Guy Wires 3 to 4.5” Thick

8

New SUPER Tower at Full Limits

Total width can be ~27.3 feet,

.

27ft10ft 5ft

13 ft

9

LCG Must Carry Burden of Proof

100% Burden of Proof on Lake Cedar Group

• Changed circumstances since original zoning

• must show proposal in best interest of Health, Safety and Welfare

• Compliance with zoning resolution

10

LCG CAN’T PROVE CIRCUMSTANCES NOW

WARRANT CHANGE FROM PRESENT ZONING

50 YEAR HISTORY

residential and agricultural zoning

11

INCOMPATIBLITY

Zoning Resolution Requires Compatiblity

17.C.3.c.17 F.2.a (1)

with existing and allowable land uses in the

surrounding area

12

LOOKOUT TOWERS INCOMPATIBLE IN 4 BCC ZONING DENIALS

• 1983 “not compatible with allowable or existing land uses.” Ex. 56 

• 1985 “not compatible with allowable and existing land uses in the surrounding area.”

Ex. 57

• 1990 “not compatible with allowable land uses in the surrounding area in all directions”

Ex. 59

• 1999 “incompatible with residential uses in the surrounding area.” LCG rezoning denial Ex. 63

13

FOUR PREVIOUS DENIALS For Tower at this site!

1. Mountain Contours KTVJ 1983Proposed tower denied Exhibit 56

2. Mountain Contours KTVJ 1985Proposed tower denied Exhibit 57

3. Mountain Contours KTVJ 1990Proposed tower denied Exhibit 58

4. Lake Cedar Group 1999 Proposed tower denied Exhibit 63

146 th Attempt by Mountain Contours/Ch. 20 Owner

15

MORE INCOMPATIBLE THAN EVER BEFORE

More Residents/Businesses Now Ex. 24 & Jeffco Assessor Data

Greater adverse effects (interference/health)Ex. 7-11, 25-47, 53,70-79, 87-89,90,92,107-126

Zoned Residential/Agricultural for 5 decades20 Year History of Tower Denials on Lookout

16

1999 Denial of LCG-Still Valid

• Incompatible with residential uses• Central Mountains Community Plan (CMCP) -

• Violates visual resources, public services and mountain site design criteria (aesthetics)

• Does not contain sufficient set backs (tower fall issue)

• Violates Telecommunications Land Use Plan (TLUP) policies on tower siting

• No showing that an alternative site is unavailable

• Not in the best interests of the health, safety, and welfare Exhibit 63

17

LCG Cannot Use Nonconforming Towers for Digital

Obsolete Analog Antennas Cannot Be Replaced with Digital Antennas

18

NONCONFORMINGLCG Towers/Buildings in MR1

All LCG Lookout towers/buildings • Channel 4-nonconforming in residential• Channel 7-nonconforming in residential• Channel 9-nonconforming in residential

Plus illegal radar tower in residentialEx. 65

45 out of 47 Lookout towers nonconforming Ex. 54

19

Nonconforming Broadcast Towers,Antennas & Facilities

Jeffco Phase Out • 1977-Citizens rely on Jeffco promise that these

towers were temporary Ex. 52

• 1985-TLUP Details Burdens of Interference, Visual & Health Ex. 23

• 1990-Jeffco Plan -phase out all nonconforming

Ex. 54

• 1999-LCG to FCC & Jeffco “Lookout towers being phased out” Ex. 64, 65

20

LCG to Judge ‘LCG Cannot Add Digital’

"due to restrictions imposed by the County through its legal nonconforming use provisions in the

Zoning Resolution, the Lake Cedar members were essentially prohibited from attempting to add an additional DTV antenna to their existing towers.”

LCG v Jeffco-Dist Ct. Case No. 99CV2007 Ex. 64

21

LCG to FCC ‘Zoning Prohibits Addition of

Digital to Existing Towers’

“…provisions of Section 6….prohibit Broadcasters from adding a digital television antenna to their respective existing broadcast towers in the Lookout Mountain Antenna Farm….”

1999 LCG Preemption Petition to FCC Exhibit 65

22

LCG lost all attempts to add digital to Lookout towers

• Channel 4 – January 27, 2000 application

• add digital antenna to nonconforming South Microwave tower

• Channel 9-attempt to add digital to Channel 9 radar tower

• Tower illegal-Channel 9 agrees to remove radar

23

"the law in Colorado strongly disfavors

legal nonconforming uses and encourages their elimination

at the earliest possible time."

Tim Cox, Assistant Jefferson County Attorney Answer Brief Oct. 2001 in Channel 4 lawsuit over denial of digital permit

Group W/CBS Television Stations Partners v BOA 01-CV-0898

24

Colorado Supreme Court 2001

Nonconforming uses must be brought into conformity

with the underlying zoning uses as rapidly as possible.

Fire House Car Wash v Board of Adjustment and City of Denver 30 P. 3d 762, 766 (2001); Hartley v. City of Colorado Springs, 764 P.2d 1216 (Colo. 1988).

25

Nonconforming uses hurt Residents:

1. Effectiveness of zoning ordinances reduced

2. Property values depressed

3. Contribute to urban blight.

Fire House Car Wash v Board of Adjustment and City of Denver 30 P.

3d 762, 766 (2001); Hartley v. City of Colorado Springs, 764 P.2d 1216 (Colo. 1988).

26

Zoning Administrator

“Digital TV and analog TV are not the same. Allowing a digital TV antenna to replace a nonconforming analog TV antenna would

potentially extend the life of the nonconforming use in violation of criteria

set forth in Section 6.”

Tim Carl Testimony, June 26, 02 02-102616VC

27

28

LCG NONCOMPLIANCE ZONING RESOLUTION

REQUIREMENTSTYPE Z.R. SECTION

ALTERNATIVE SITES

17 F.2.b.(1)

COMPATIBILITY 17 F.2.a (1) &

17 C.3.c

RADIATION

SAFETY

2 L. 2. a &

17 F.1.c.(4)

TOWER FALL

SET BACK

17 F.2.b.(2)

29

Already 1 of Most Radiated Communities in U.S.

9,000 residents “behind” Towers West of Denversame altitude as high powered TV/FM and radar power

beams with decades of cumulative radiation from continuous exposure

30

LCG ADMITS

Widespread RF Increases

RF Increase Section

LCG Ex. 17

CARE Ex. 80

31

32

Visualizing the Radiation

• Light Simulation of Radiation Pattern

• Large Map – Base Map –Jeffco County Assessor Data– TLUP Finding on Effect of Towers on Property

values– Clear Overlay-LCG directional antenna pattern

• Can be rotated-Quite Zone Example

– Radiation increase• Specific examples shown with factor of increase

33

ALTERNATIVE SITES EXIST

34

No Rezoning if Alternative Sites Exist

Minimum standard of Rezoning Resolution

Section 17 2b. (1)&

Tower Siting & Review Policy 1b. TLUP

The applicant must show that their proposed equipment cannot be accommodated and function….on any other existing facility.

35

JEFFCO RF CONSULTANT ALTERNATIVE SITES WORK

Lake Cedar Group cannot meet its 100% Burden of Proving that no alternative sites exist.

36

INTERFERENCE INCREASE

37

ECONOMIC HARM

38

TLUP FINDINGS ON PROPERTY VALUES

The specific characteristics of Telecom facilities that seem to negatively impact property values are:

a. Visual Impact

b. Interference

c. Concern over possible health effects

• TLUP Property Value Finding # 3 Ex. 23

39

Violation of Property Rights of Thousands of Residents

• 10% Loss of Property Value Ex. 20-22

• Mitigation Costs Ex. 53

• Imposition of Nuisance – Interference, noise– Health Concerns

Loss of Legal Rights of Quiet Enjoyment & Peaceable Possession-Radiation without consent

40

HEALTH RISKS

41

FCC & Engineers-Not qualified to practice medicine or give opinions on health effects

42

FCC Radiation Limits Not Protective for

Long-term Exposure

Physicians, Scientists, & EPA Ex. 9, 70-79, 107,116,120,121,128,129

Dr. Hoffman -Colo. Dept of Health– FCC Limit only protects against short-term exposure

– Community experiences long-term exposure

• recommended ALARA (as low as reasonably achievable rather than FCC standard Ex. 8 ,9 & 71

43

University of Colorado Health Sciences Department of Radiation Oncology

Public Testimony in Jefferson County Hearings

“Without proper scientific data, we consider it unconscionable to expose the people of Jefferson County to these levels of radiation.”

We know of no other instance where a device, chemical or drug . . . would be imposed on the public without proof of its safety.

44

Biological Effects to Humans Near TV/FM Towers

at 5% MPE or Lower

Future Radiation Microwatts Per Centimeter Squared

0-20

SAGE REPORT-Broadcast RF Studies Reporting

Biological Effects & AdverseHealth Effects at levels below

FCC StandardsEx. 107

Changes in Immune Function

Infertility in men

Inability to reproduce-mice

45

Study on Effect of Broadcast Radiation on Lookout Mountain

Residents$700,000 National Institute of Health Study

June 03 Letter from Dr. Reif Ex.90

• 1999-LCG opposed Rep. Witwer 99 Research Bill

46

Health Threats Physicians & Scientists Video

• Dr. Ross Wilkins, M.D.– Orthopeadic Oncologist

• Dr. Goldsmith, M.D.– Epidemiologist

• Dr. Litovitz– Physicist– Bioelectromagnetics

47

Dr. Ross Wilkins-Orthopaedic Oncologist

– President of Musculoskeletal Tumor Society – Medical Director

• Donor Alliance

• Institute for Limb Preservation

– Published papers molecular/cellular/developmental biology

– Book chapters re: cancer diagnosis/ treatment

Ex. 105

48

Dr. Goldsmith, M.D. M.P.H. Epidemiologist

• TV Broadcast Towers and Cancer: The End of Innocence for Radiofrequency Exposures– American Journal of Industrial Medicine Ex. 112

• Epidemiological Evidence of Radiofrequency Radiation (Microwave) Effects on Health in Military, Broadcasting, and Occupational Studies– International Journal of Occupational & Environmental

Health Ex. 111

49

Dr. Litovitz-Physicist

• Director of BioElectromagnetics Laboratory– Catholic University of America

• Chronic Electromagnetic Field Exposure Decreases HSP70 Levels and Lowers Cytoprotection- Ex. 118– Journal of Cellular Biochemistry 84:447-454 (2002)

• Presentation at Congressional Staff Briefing Ex. 117

50

51

PREEMPTION THREAT

• Tremendous support for Jeffco last time

• Legislation forbidding preemption sponsored by Rep. Tancredo & Vermont – July 01 Congressional Staff Briefing-Dr.

Litovitz & Deb Carney– 9/11 Interrupted– Reintroduction planned

• Support by National League of Cities-Ex.91