By Meg Olson
Editor's note: See below story for hearing examiner's official decision.
Opponents of a proposed radio tower farm in Point Roberts are celebrating an unexpected victory, while remaining poised to continue the fight against the project.
On October 20, Whatcom County Hearing Examiner Michael Bobbink issued a memorandum indicating he was prepared to deny a conditional use permit (CUP) application by BBC Broadcasting to build five 150-foot-tall towers at the corner of McKenzie Way and Tyee Drive in Point Roberts. He released his findings and facts, conclusions of law and decision on October 30 (visit allpointbulletin.com to view). The hearing on the application, scheduled for October 27, was cancelled after the memorandum was issued.
Attorneys for the Cross Border Coalition to Stop the Towers had filed a motion to deny the application based on the height of the towers. The towers, at 150 feet, exceed the 25-foot and 45-foot limits on structures in the Point Roberts Special District, and county code does not have provisions to allow a greater height for “electronic communication structures,” as it does for “wireless communication facilities.”
“Cell towers and radio towers are different things,” said county planner Suzanne Bosman, and they also have different siting criteria. Bobbink has previously approved both a cell tower and a TV tower application for Point Roberts.
Bobbink’s interpretation in this case was that “the height requirements of the Point Roberts Special District apply to this application,” and that the application “cannot functionally meet these requirements.”
County staff, in recommending approval of the project in their October 3 report, thought instead “it must be presumed that a radio tower has to exceed zoning height restrictions in order to function adequately,” so the height restrictions in the special district would not apply to a public utility like the radio tower or the Whidbey Telephone tower, which is 200 feet tall.
Lawyers for the coalition, on the other hand, argued the height restrictions did apply, and that “the operative effect is that the particular type of electronic communication structure proposed here will be feasible in some zones and not others.”
“It depends on how it is interpreted,” Bosman said, and while county code says a cell tower can exceed the height of the underlying zone, it doesn’t have that language for radio towers.
Applicants have 10 days from the date the decision is officially issued to file an appeal to Whatcom County Council, Bosman said. The appeal must specify the error of law or how the decision is clearly erroneous on the entire record.
Should county council uphold the hearing examiner’s decision, appellants can take their appeal to superior court. If not, the matter will be remanded to the hearing examiner and another hearing scheduled.
The Cross Border Coalition to Stop the Towers has vowed to fight any appeal and is continuing to raise funds to pay for the legal battle.
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