A landmark ruling for justice and common sense in this David and Goliath battle, now in it's third year, was handed down on Wednesday, October 7.
The judge's ruling was brief and clear following a three-hour hearing in Skagit County Superior Court. The Petitioners, BBC Broadcasting, had hired top Washington D.C. and Seattle legal teams to engage in a protracted battle to persuade Whatcom County to allow construction of five 50,000 watt radio towers in Point Roberts.
Whatcom County was represented by Deputy Prosecuting Attorney Royce Buckingham. Robert Carmichael was counsel for the Cross Border Coalition and Conservation Society, a group of citizens from Point Roberts and Tsawassen B.C. The hearing lasted three hours. Due to the complexities of the case, many expected the judge's decision would come at a later date.
In fact, the ruling was issued quickly and decisively to the packed courtroom. In essence, the ruling was that Whatcom County has the power to decide where oversize facilities are going to be sited. And Point Roberts is not one of those sites.
Last October, Whatcom County Hearing Examiner Michael Bobbink ruled that the issuance of a Conditional Use Permit by the county's planning department was in violation of county ordinances regulating the height of structures. In the Point Roberts case, those structures were 150 foot radio towers. The height limit in Point Roberts is 25' with variances to 45' - far too short for the successful operation of five 50,000 watt radio towers. Arguments were made by the Petitioner that radio towers were “Essential Public Facilities” and allowed under Whatcom County code. The court noted radio towers are not considered “essential” under Washington state law, but are allowed in Whatcom County with a Conditional Use Permit, which was denied by Hearings Examiner Bobbink last October due to the existing height restrictions.
The Petitioner's arguments that there were few sites available in the county other than Point Roberts was not persuasive to the court. In fact, there are nearly 300,000 acres in Whatcom County that do not have height restrictions in a variety of zones, including Agriculture, Commercial Forestry, Light and Heavy Industrial, Rural and Rural Forestry.
The real reason Point Roberts was chosen for the proposed tower farm was shown in a Powerpoint presentation: its proximity to the Canadian border and a potential market of over 200,000 South Asian listeners. Ironically, the relocation of radio station KRPI from Ferndale to Point Roberts would have a negative effect on the 3,000 Sikhs that now reside in Lynden. Instead of beaming the KRPI signal from Ferndale, the proposed towers would all be pointed north, away from east Whatcom County.
There was no discussion of the detrimental effects of electromagnetic radiation from the proposed towers, but it was pointed out that construction would violate the standards used by the Petitioner's own engineers, which requires sites to be a safe distance from populations. That standard is one-volt/meter. Using this standard, Bellingham's KGMI has a total population of 410 inside the one-volt/meter range. KBAI has zero. The Point Roberts/Tsawwassen area would have 6,189.
Although arguments of federal pre-emption were raised by the Petitioner, including the Equal Protection clause, the judge ruled that no violations were present in this case.
In a nutshell, the court ruled that radio stations do not have the right to place their towers anywhere in the county in violation of zoning. There is no federal preemption. Speaking for the Coalition, Carmichael argued that the court should follow the law and not interject policy arguments. The court obviously agreed.
Will the Skagit decision be appealed to the Washington Court of Appeals? Too soon to know. But for the time being, David - and Whatcom County - is the winner of this round.