Ouray County, Colorado Residents Awaiting Decision on Verizon Wireless Tower

Ouray County, Colorado residents are still awaiting a decision on the Andrew Fisher vs. Dallas Creek Water Company court case involving the Verizon Wireless 92 ft. tower. Disputes over legal rights and violations of codes surrounding the Verizon Wireless tower have been ongoing for seveal years.

This is the second case against the planned Verizon Wireless tower by Ouray County residents. A previous case filed be Peter and Susan Ward is in the appeal process. The Ward's contend that the Ouray County Commissioners did not have the right to grant a special use permit to Verizon Wireless to begin construction of their tower. Verizon Wireless began construction November 2010.

Andrew Fisher was represented by Atty. Brad Switzer and Atty. Scott Miller represented the Dallas Creek Water Company. District Court Judge J. Steven Patrick presided over the two-day trial.

Andrew Fisher owns several lots in Log Hill Village and is contending that a 92-ft. tower is a "monstrosity" and violates the protected covenants of the Agricultural Control Committee (ACC) and certain visual impact codes.

Supportive local Ouray County residents showed up for Fisher who currently lives and works in Houston but is planning to eventually reside on Log Hill. Most residents of Log Hill village are retired or semi-retired.

Jim Kennedy, the President of ACC for the past seven years testified that Verizon Wireless sent original plans to the ACC in 2008. These plans were approved but then approval was suspended 15 days later. Kennedy testified that a letter of suspension was sent to all parties involved including Dallas Creek Water Company and Verizon Wireless. Kennedy also testified that the original Verizon Wireless application proposed a 50 ft. tower.

In April 2009, Verizon Wireless made revisions to the original application to include a 90 ft. tower and sent it to the Ouray County Commissioners for approval. This revision was not sent to the ACC according to Kennedy.

Kennedy stated that the new application has a 667% more visual impact than the current towers on the site and the base of the revised Verizon Wireless tower is 2 ½ times larger than the existing towers.

Kennedy noted that there is a 26 ft. height restriction on structures built on Log Hill and that no antennaes can be above the tree line or tallest structure except for the tv tower. Kennedy also testified that any changes to an original application must be resubmitted to the ACC for approval as stated on the ACC application form.

Kennedy stated later in conversation that no representative from Verizon Wireless contacted ACC to discuss the proposed tower. To his knowledge, Verizon Wireless has not met with any homeowners on Log Hill or Ouray County.

Atty. Brad Switzer argued that the protected covenants of Log Hill Village were created to enhance the value, desirability, and attractiveness of the lots. It also gave lot owners the right to sue anyone who threatens the protective covenants. The construction and validity of the protected covenants were adopted in 1975 and recorded in 1976.

In 1989, General John Hay who also owned property on Log Hill, rallied homeowners to go before the Ouray County Commissioners and oppose any new towers on Log Hill. The Commissioners at that time stated that they would not approve any more towers on the property unless homeowners agreed to it. No tower has been constructed on Log Hill Mesa since 1994.

Alan Stapleton who served as Vice President under the late General Hay for the Log Hill Homeowners Association (HOA), testified that a consolidation agreement was made in 1994 between the HOA and Dallas Creek Water Company. This consolidation agreement allows homeowners some control over the tower site and any changes/additions to the site needs the homeowners approval. It was signed by all parties.

Matt Butler from Verizon Wireless testified that the Ridgway Planning Board approved Verizon's original plans in July 2008, however, these plans were revised in Apil 2009 and sent to the Ouray County Commissioners for approval. Butler testified that these revised plans were not sent to the ACC and they showed a 2 ½ times larger difference than the original plans. Butler also stated that the height of the Verizon Wireless tower was increased because "...a lower height means that the signal is not as efficient because of trees, structures, etc."

As spokesperson for Verizon Wireless, Butler feels they have gone through the proper approval channels even though he stated they did not resubmit revised plans to the ACC and he confirmed knowledge of a denial of the plans from the Visual Appeals Board.

Jim Willey, co-owner of Dallas Water Creek Company stated in his testimony that he did not find any violations in the Log Hill covenants, nor was he aware of any restrictions of the Verizon Wireless tower and its planned site. Willey stated that he did receive a letter from the ACC in May 2008 denying the tower proposal.

Atty. Scott Miller presented his case that just one homeowner is against the Verizon Wireless tower. Miller also contended that the plaintiffs story is not consistent and that Dallas Creek Water Company is in compliance.

In closing, Atty. Switzer referred to Fisher as "one tin soldier" that is standing up for the late General Hay and principles in the covenants. Fisher is the beneficiary of the covenants and the Greater Impact Law adopted by the State of Colorado.

Judge Patrick promised several times that he would read all documentation including the exhibits and make a ruling as soon as he could.