The times they are– or aren’t– a changin’? That was the question put before the Grand County Planning Commission at its most recent meeting, with two highly-attended and sometimes emotional back-to-back public hearings and two varied and sometimes surprising results for the different Special Use Permit (SUP) applications. In the first, the Commission voted to recommend denial for a radio tower near Devil’s Thumb Ranch that would allow Fraser Valley Media, Inc. to expand its broadcast reach of KFFR community radio. In the second, they recommended approval for TM Fencing, LLC to be permitted commercial operations on Hither’s Edge Ranch near the YMCA.
KFFR 88.3 FM, Fraser Free Radio, is a nonprofit public radio endeavor, first envisioned in 2007 when Denis Moynihan, founder of Fraser Valley Media, was granted a noncommercial educational FM radio license from the Federal Communications Commission (FCC). That began a planning and fundraising process that has come so far as to see the volunteer-run station broadcasting today in the Fraser Valley, from Tabernash to Winter Park, using a temporary 35-foot, 800-watt radio tower. However, this tower and its broadcast strength do not meet FCC requirements and in order to maintain the license, a permanent tower with higher wattage is needed.
Thus, Moynihan has submitted a SUP application, requesting permission to erect a permanent 90-foot, 2,500-watt broadcasting tower on a privately-owned tract of land in the Batson Tracts subdivision, located north of Tabernash and the Devil’s Thumb Ranch Resort. The property was purchased by Moynihan with the express purpose of establishing the tower, and a 10-year lease agreement exists, renting the property to Fraser Valley Media for $1.00 a month.
The application was presented with Staff recommendation by Alex Taft, Planner with the Grand County Community Development Department, whose report reads, “Staff’s suggestion is that this radio station and tower would bring enormous benefits to Grand County and locating the tower at this location would be an acceptable option.” But the recommendation was not without conditions. Expressing a desire to address neighbor concerns, recommended conditions include reducing wildfire concerns with a wildfire mitigation plan and best-practices for lightning avoidance and grounding and minimizing visual impact through such steps as using non-reflective earth-toned tower coating.
Moynihan was asked to explain the project and provided a PowerPoint presentation, describing the history of the project; detailing the proposed tower site; offering visuals, including engineered drawings, balloon test photos, and photos taken during a 2-hour window in which the temporary tower was erected to a height 15-feet taller than the proposed tower; and discussing the various technical experts to be engaged in the tower construction.
He explained the needs of an FM broadcast tower as being access to electricity and positioning at a sufficient elevation as to reach the desired geographic range, in this case, from Berthoud Pass to Grand Lake to Hot Sulphur Springs. And he described a two-phase process in which the temporary tower would first be raised to the full 90 feet upon final approval of the SUP, and then a permanent gridded tower would be constructed on a concrete pad with lighting mitigation, the latest grounding technology and a military-grade electronics shelter. He later indicated that the tower would also provide colocation of first-responder repeater antennae to “enhance and extend the communications” of local fire, EMS, police and other emergency responders.
Once the public hearing was opened, opinions of both support and opposition were expressed. While the consensus from the general community seemed to be in support of a tower that would allow the continued and expanded operation of KFFR, those most likely to be physically impacted by the location of the tower, the immediate neighbors in Batson Tract, expressed emotion as they voiced their resistance. While all spoke in favor of the radio station, each detailed concerns with having the tower located in their “backyard.”
Karli Hansen, whose family has owned their Batson Tract cabin for 51 years, detailed how she and her family use the cabin as a regular “getaway, away from sounds, lights, and structures” and away from the stresses of their everyday lives. She and Doug Smith spoke of destroyed natural views, visual degradation, and property devaluation. Bruce McCrea talked of his draw to the area as being because of the “pristine” landscape. Other neighbors, such as Robert Oatman and Rod Gotlin expressed worries about radiation hazards. And Ryan Lewis noted what he saw as the applicants having already “snubbed their nose at the Commission,” in broadcasting from the 35-foot tower without a SUP, having broadcast from the raised 105-foot tower without the SUP, and in not adequately exploring alternate locations. Each had more to say and were hampered by the 3-minute window enforced by the Commission.
Commissioners had some questions for Moynihan, concerning such issues as the lack of lighting on the proposed tower; the potential for locating the tower on other properties, such as an existing but deteriorated tower site at YMCA- Snow Mountain Ranch or Devil’s Thumb Ranch; and about the Effective Radiated Power (ERP). In response, the applicant indicated that the height of the tower did not require lighting and that, for a nonprofit, the time and monies involved in trying to locate a tower on other private property had not been found feasible. While the opportunity for a location on Devil’s Thumb had not been explored, the application itself indicated an engineering analysis by Brown Broadcast Services of Portland, Oregon did assess five alternative sites, including the Historic Fraser Tubing Hill, Old Town Winter Park, and the site at the YMCA. The conclusion was that “in each case, the alternatives failed to provide the service to the complete target population, as required by the FCC.”
Other commissioner comments included concern from many members about the potential radiation impacts. Commissioner Melanie Zwick indicated that there “didn’t appear to be adequate due diligence” in regards to location and that “it would be good in a more central location.” Commissioners Sally Blair and Steve Sery agreed that nobody wanted a radio tower in their “backyard,” but that it would end up in someone’s backyard, no matter where the chosen site. Commissioner Ingrid Karlstrom mentioned that she and Zwick had visited the site and immediately seen the impact on the residents. “I think it’s screwing the neighbors,” she noted. And Chair Marcus Davis, who was not voting, pointed out that he had “written the telecom regulations.” He cited the County’s Master Plan which both prioritizes the preservation of visual corridors and requires emergency service colocation on all towers in the county. He further emphasised the Commission’s need to “balance the impact to the immediate neighbors and the benefit to the community as a whole.”
In the end, a vote was called to recommend denial of the currently proposed SUP. Commissioners Karlstrom, Blair, and Zwick voted for denial. Commissioners Sevy, Marcy Monnahan, and Jennifer Scott voted to approve the proposed location. Commissioner Joe Gould expressed his abstention. Chair Davis stated that Gould had not indicated his intention to abstain at the correct time, and called for a second vote. The second vote added Gould’s hand to those raised for recommendation to deny.
The result of the vote proved a surprise to both sides of the issue. Neighbor Bob Oatman, whose grandfather built his Batson Tract cabin in the 1960s, has said that “frankly, we were surprised. We felt a bit like David against Goliath. We were not against the radio station, in fact it would be good for the valley. We just did not feel that it should come at our expense.” He admitted that at one moment, “I felt that we were sunk. But it was clear that the Planning Commission cared about the people that the tower was going to impact.”
As for Denis Moynihan, he also said that he was “personally surprised when the Chair would not allow one of the Commission members to abstain. Upon the second round of voting, the member who was denied permission to abstain voted against the SUP. On that grounds, I find the vote and the message from the Planning Commission somewhat ambiguous.” He went on to say that “while we greatly respect the advisory role of the Planning Commission, I also understand that the ultimate body that decides on the permits is the Board of County Commissioners, so we look forward to making our case to that authority.” He maintained that this was the right location in an area of terrain-related challenges for a “modest tower that would create a local community-run media institution that is sorely lacking in Grand County.”
“I am hopeful that the public will let their elected representatives at the County Commissioner level know that they support this proposal and that we’re going to move ahead.” He invites any members of the public with ongoing questions or a desire for a guided tour of the site to contact him at firstname.lastname@example.org.
A second application was presented to the Commission by Community Development Director Tom Leatherwood. Leatherwood stressed that the application had been modified since its initial submission and would only include a request to permit TM Fencing Company, LLC to operate a commercial fencing business on the Hither’s Edge Ranch, owned by the Samuelson family. Earlier versions of the application included a commercial hemp operation, which is regulated by the state and not the county, and an wedding/event center on the property.
Leatherwood offered Staff recommendation for approval, with 17 accompanying conditions. Conditions included such company requirements as accurate employee reporting, good standing with the Secretary of State and a formal lease agreement between the property owners and the business. Other conditions pertained to operational activities, including limiting the number of daily commercial truck trips on a shared private road, abiding by slash storage and burn guidelines, and providing ongoing care and maintenance of the shared roadway. Even more attempted to address neighbor concerns of safety and comfort, requiring a traffic plan that would address speed, volume, and dust control and restricted hours of commercial operation.
Attorney Georgia Noriyuki, representing applicants Jonas Pearson and Ehren Samuelson, referenced two letters submitted to the Commission that argue their stance that all the activities of TM Fencing fall under Colorado’s broad definition of agricultural activities and that a SUP should not be necessary. She presented her clients, who introduced themselves as Grand County natives and founders/co-owners of TM Fencing since 2006. Pearson described a “unique” local business serving and satisfying the fencing needs of Grand County. Samuelson offered a Google Earth map, placing the 40-acre working ranch both within distance of some developing residential neighborhoods and several commercial operations, including two gravel pits, cattle grazing acreage, and six operating sawmills. He described their own mill as being a small-scale hand mill operated by one individual, milling one log at a time. Both business owners indicated the challenge in separating the impact of commercial operations from the residential ranching operations of the property.
Neighbors then presented in public comment, all offering support for the success of the business, but explaining their concerns. Parnell Quinn, of the Fraser Town Board, stated that the applicants had been running a business on the ranch, “interfering with a residential neighborhood.” Drew McCoy cited concern that, since 1990, there had been wetland destruction on the property and within the Skunk Creek drainage without proper oversight from the Army Corps of Engineers, the regulatory authority. Justin and Ralph Klomp expressed safety fears, mostly in regard to the shared private road by which the Samuelson Ranch is reached in accordance with an easement agreement. Justin stated, “We have three children. We’ve been neighbors for 10 years. We can’t walk or bike and we’re scared to drive on the road.” The Klomps encouraged the applicants to relocate their business to a commercially zoned property and seemed to even offer assistance in doing so.
Mike Culig testified that he had “observed numerous incidents of disregard to OSHA regulations, such as eye-protection.” He worried that the trucks and drivers were not in compliance with the Colorado Department of Transportation. Deb Culig referenced a Cease and Desist order that has been issued prior to the hearing and indicated that “unpermitted commercial operations were still taking place.” She asked Commissioners to keep the Cease and Desist in place, “Why would you grant a SUP after so many violations? It’s like closing the barn door after the horse is already out.”
Several homeowners associations were represented, including the Sheep Mountain HOA, the HOA of the Valley of Winter Park, and the Stagecoach Meadows HOA. The all expressed concern about commercial operations near their residential homes, and worries about noise, light, and water pollution. Paul Arkins also referenced the Boreal toad, a protected species that can be found in the Valley.
Family members spoke in favor of the business and ethical entrepreneurship of the applicants. Property owners Richard and Cathy Samuelson reiterated their belief that the activities fell under ranching and ag uses. They further explained that Richard both built the road in question and continues to maintain it with regular grading and erosion mitigation. Others also supported the application, including Granby contractor Dan Freed who expressed concern over “much farther reaching consequences” if the application were denied. He pointed out that many local contractors and other small businesses used their residential properties for limited “staging” of commercial operations and would be impacted if such a precedent denying such activities was set.
Commissioner comments were limited. Commissioner Karlstrom opened comments by verifying the historic “farm ranching” nature of the property, dating back to Grand County’s earliest days in the 1800s. She stated, “This is what the County and the State are trying to preserve.” And she then cited the “Right to Farm” or “Code of the West,” reading, “State and County policy provide that ranching, farming and other agricultural activities and operations within Grand County shall not be considered to be nuisances so long as operated in conformance with laws and in a non-negligent manner. Therefore, all must be prepared to accept noise, odor, lights, dust, smoke, and chemicals.” She further went on to state that, perhaps, “newcomers had not done their due diligence. But this is what we’re trying to protect. What is going on there gets to be preserved.”
The other Commissioners confirmed their support of the SUP, with Baird expressing some discomfort at landowners being able to do “whatever they want with their property.” Commissioner Zwick returned to the question of wetlands, asking for a review by the Army Corps of Engineers. Finally, nearing 11:00 p.m., the Planning Commission voted unanimously to recommend approval of a 5-year SUP with Staff recommended conditions, minus the recommendations for a port-a-potty and extensive maintenance of the easement roadway. Chair Davis, again, did not participate in the vote, but had expressed support for the application.
The next step for the local company is to bring their application to the County Board of Commissioners for final approval. Following the Planning Commission hearing, Pearson stated that “TM Fencing is grateful and humbled for the unanimous decision put forth by the the Planning and Zoning Committee to pass the SUP. The generally misconstrued fact of the evening was that the permit was issued for Hither’s Edge Ranch and a variety of other activities. The SUP was voted on specifically for TM Fencing only. We look forward to a promising future and are eager for growth and development within the community. We pledge to comply with specifications outlined in the SUP and invite neighbors and homeowners in the area to openly converse with the business.”
He went on to say that “the families and individuals associated with the company are intrinsically disappointed with the animosity towards family and character values. TM Fencing is receiving counsel on protecting themselves and other businesses of the like throughout Grand County. We are not just standing up for ourselves and TM Fencing, we are standing up for a multitude of small businesses around the county who operate in similar ways as we do. We are standing up for small business in general.”
Neighbors who provided emails on the meeting sign-in sheet were attempted to be reached during the writing of this story, but no response has yet been received.