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Article Courtesy of The
Peninsula Daily News
By Rob Ollikainen
Published April 17, 2018
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SEQUIM — Dungeness Heights Homeowners has sued over a land-use certificate that
allows a 150-foot radio-cell tower to operate in the hamlet north of Sequim
despite a pending court case in the state Court of Appeals.
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Olympia attorney Gerald Steel filed the
lawsuit on behalf of the homeowners’ association in Clallam
County Superior Court on Monday.
Clallam County Building Official Annette
Warren issued a certificate of occupancy to tower-operator
Radio Pacific, Inc., on Jan. 5.
The 416-page complaint against Radio Pacific, Verizon
Wireless Services, LLC., Clallam County and others asks the
court to declare that the Clallam County Building Code Board
of Appeals has jurisdiction to hear the association’s appeal
of Warren’s decision.
“It is a bit complex,” Steel said in a Friday interview.
“Because the appeals board said that they didn’t have
jurisdiction to hear our appeal of the certificate of
occupancy, then that raises a question about whether the
appeals board order is reviewed under LUPA (state Land Use
Petition Act), or reviewed under the Uniform Declaratory
Judgments Act.
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A 150-foot tall cell tower disguised as a
Douglas fir tree looms over the Dungeness Heights neighborhood north
of Sequim.
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“That’s sort of a complex issue that
we’re having to take before the court,” Steel added.
“We argue that if it was a land-use decision, then it was an erroneous
land-use decision under LUPA. If it wasn’t a land-use decision, which is our
main position, then it’s reviewed under the original jurisdiction of the
Superior Court.
“Basically, what we’re asking for, mostly, is a decision that the appeals
board did have jurisdiction, and then a remand to the appeals board to hear
the case on the merits.”
In March 2016, a Clallam County hearing examiner approved a variance and
conditional use permit for Radio Pacific to built a 150-foot radio-cell
tower atop Dungeness Heights on a parcel owned by Shirley Tjemsland at 766
Brigadoon Blvd.
Clallam County Superior Court Judge Erik Rohrer upheld former Hearing
Examiner William Payne’s decision in February 2017.
“Dungeness Heights thinks this is an atrocity,” Steel said of the tower.
“It’s a pretty dense, rural-residential neighborhood, and having this
150-foot tower right next to it — they think it’s egregious.”
Developers disguised the tower as a ersatz Douglas fir tree with composite
plastic and fiberglass branches.
Radio Pacific, Inc. is the parent company of KONP 1450 AM and 101.7 FM, KSTI
102.1 FM and a new station, KZQM 104.9 FM.
KZQM recently announced plans to begin broadcasting classic rock music in
May.
The tower also hosts locations for three wireless phone carriers, two of
which are being used, the Sequim Gazette reported.
Dungeness Heights Homeowners appealed the county-approved variance and
conditional use permit for the radio-cell tower to the state Court of
Appeals, Division 2.
Oral arguments on the zoning permits and building permits have not been
scheduled by the Court of Appeals.
Despite the unresolved permits, Radio Pacific was granted a permission to
build the tower, Steel said.
“We also raised the issue that the building permit for the tower showed the
tower to be 153.6-feet tall, and the zoning code only allowed for 150 feet
with a variance,” Steel said.
Steel said it was “very unusual” for an applicant who obtains a building
permit to build a structure before zoning issues have been resolved.
“They’ve been advised that if the court rules that the zoning permits are
invalid, then we will ask them to take that structure down and restore the
property to the way it was,” Steel said.
Steel added that the case illuminates a “serious problem” with permits under
the Land Use Petition Act.
“If it’s not appealed to Superior Court within 21 days of when there’s a
final decision by the county, then whether it’s right or wrong, it becomes
valid,” Steel said.
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