Appeal of radio towers denial goes to county council

By Meg Olson

BBC Broadcasting Inc. has appealed the Whatcom County Hearing Examiner’s decision to deny their application to build a radio tower farm on the Point.

Filed on November 4 with Whatcom County Council, the appeal challenges the hearing examiner’s October 30 decision to deny the application due to the applicant’s inability to meet height restrictions in the Whatcom County zoning ordinance. The hearing examiner also granted a pre-hearing motion to dismiss filed by the Cross Border Coalition to Stop the Towers.

In his decision, hearing examiner Michael Bobbink ruled that while Whatcom County has adopted provisions to allow telecommunications facilities to “reach the height reasonably necessary to carry out its functioning in some districts,” these were “not intended to apply to broadcast towers.”

During a 2005 “code scrub” performed when new rules were put in place for cell towers, county council repealed a section of code that allowed an exception to height rules for towers. Consequently, “there is left in the code no specific mechanism for allowing broadcast towers or other utility structures to exceed zoning height limitations,” the hearing examiner concluded.

The applicants had argued county council did not intend to “eliminate approval of an AM radio station broadcast tower that exceeds the height limit in the underlying zone,” and the hearing examiner agreed – but that’s what happened. “It is almost certain that the issue was not anticipated and there is no way to know how that council, or the current one, would resolve this issue if directly considered in legislative action,” he wrote.

Similar to the Washington State Supreme Court, Bobbink said he is “obligated to give the plain language of a statute its full effect even when the results may seem unduly harsh.”

The applicants have also argued that legislation that preempts radio towers from certain zones is unconstitutional, but Bobbink wrote that such issues need to be “resolved by a constitutional court, state or federal, and not a hearing examiner.”

County council consideration of the appeal has been scheduled for January 13, 2015. Council will be briefed in closed session prior to their regular meeting and will vote on the appeal in regular session. BBC Broadcasting has until December 3 to submit their written argument detailing why they believe the hearing examiner’s decision should be overturned. The coalition has until December 17 to file a written response.

The coalition has organized several fundraisers to pay for the mounting legal costs of opposing the project.

On Saturday, November 29 Tony Barton will be the featured performer at a benefit at Kinski’s Reef Tavern, which will include a raffle for a smart TV and DVD player, door prizes, food, a 50/50 draw, raffles and dancing.