The case involves Log Hill homeowner Andrew Fisher, represented by local attorney Brad Switzer, who filed suit against Dallas Creek Water Company for entering into a lease for the construction of an 80-foot Verizon Wireless cell phone tower on Dallas Creek land in the subdivision.
The Fisher case is one of three cases filed against Dallas Creek Water Co., said Ouray County Clerk Jane Holmes, and which Judge Patrick has combined for convenience. Two other cases, now on appeal, were filed by attorney Robert Thomas on behalf of Log Hill homeowners Peter and Susan Ward, and assert that the Ouray Board of County Commissioners did not have the right to grant a special use permit for the Verizon tower’s construction.
Named as defendants in the three cases, now all filed under one case number, are the Ouray County commissioners, Dallas Creek, and Black and Veatch Corp., who have been doing construction on the tower’s base.
Fisher’s main contention is that allowing the tower violates the covenants of the Architectural Control Committee of the Log Hill Home and Property Owners’ Association, and Switzer brought up examples to illustrate that the defendants believed the homeowner’s association had the right of approval of plans for towers. He also tried to establish that the defendants didn’t submit revised plans to the homeowner’s association, and that it has the right of approval or disapproval for future towers.
The Log Hill homeowners’ association signed an agreement with Dallas Creek Water Company to allow the tower in 2008, according to testimony of Dr. Jim Kennedy on the first day of the trial, Kennedy said. But the association had “buyer’s remorse” 15 days later when it realized the agreement violated the architectural control committee’s covenants.
Eric Miller, attorney for Dallas Creek, sought to establish that the HOA had been circumvented in the past, setting a precedent, because the rules set forth in covenants from 1976 had not been followed consistently over the years.
He interviewed witness Jim Willey, co-owner of Dallas Creek, who said there had been no complaints in the past from the homeowners about, for example, consolidation towers constructed in 1994.
“Did you believe the HOA would have say over future towers not mentioned in the (1994) agreement?” Miller asked.
“No,” Willey said.
But the lapses in getting homeowners’ approval for subsequent towers was just evidence of “the fox in the hen house,” Switzer said in his closing arguments, stating that every time a covenant was not followed “another couple of eggs were taken out of the henhouse.” He concluded the metaphor by saying that the fox has turned into “a pack of wolves.”
In response, Miller said, “plaintiff’s story doesn’t comport with the facts.” He cited a 2005 proposal for three new antennas to be added to existing towers, and said throughout the public hearing process there were no complaints.
“Mr. Fisher probably should have complained,” he said. “Where was Mr. Fisher then?”
Just when Judge Patrick will make a decision is up to him, but his office indicated that he usually moves fairly fast on such cases, and will probably make a decision “soon.”
Other Log Hill residents are following the case, and about a dozen of them sympathetic to the plaintiff were on hand for the final day of the trial on Jan. 26.
Among them were Bruce and Pat Traegde, who say they live “right underneath” where footings for the new tower are being installed near Inspiration Point and believe their property value will suffer if the tower goes up.
Bruce Traegde said he feels the county commissioners were to blame by “overreaching their authority” and taking over the rights of the homeowners’ association.
“The BOCC’s telling us what we want, not asking us what we want, and we pay their salaries,” he said. “It’s annoying at the least.”