BBC Broadcasting Inc. appeals hearing examiner's decision

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 Stop the Radio Towers Cross Border Coalition.

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.”

Since county council in 2005 repealed the section of code that would have allowed an exception to height rules for “towers” as part of a “code scrub” as new rules were put in place for cell towers, “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.

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

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

County council will now set a date to review the appeal. Parties of record from the hearing examiner’s proceedings will need to register in writing with Whatcom County Council by November 14 if they wish to be a party of record for the council proceedings. The form and where to send it are available on the Whatcom County Planning website under “current planning.”