Point Roberts radio tower fight isn’t over; Whatcom Council to hear appeal Tuesday

A Whatcom County radio station that broadcasts Punjabi programming to a mostly Canadian audience should learn on Tuesday, Jan. 27, whether it succeeded in its appeal of a decision blocking construction of 150-foot radio towers in Point Roberts.

The County Council at its 7 p.m. Tuesday meeting will vote on whether to affirm or overturn the county hearing examiner’s Oct. 21 decision to reject a permit for the five towers, which were to be built on a wooded lot about 1,200 feet south of the Canadian border.

Supporters of both KRPI-AM 1550 and the Cross Border Coalition to Stop The Radio Towers are expected to attend Tuesday’s meeting, although council will take no testimony. Council members will deliberate in a closed-door session led by a county attorney, just before the public vote.

Council member Ken Mann said council can overturn a hearing examiner’s ruling only if the examiner made an error in law or fact.

“If we ever overturn the hearing examiner without any of those two factors, then we’d probably be very vulnerable in court,” Mann said.

Council members typically don’t comment on an appeal decision when they vote, he said.

The applicant, BBC Broadcasting, and the radio tower opponents both submitted written legal arguments to the council last month. BBC Broadcasting is not related to the British network with a similar name.

The coalition’s legal argument was more dispassionate than the on-the-ground opposition from residents of Point Roberts and the town of Tsawwassen, B.C., just across the border. Potential neighbors were concerned the towers would interfere with electronic devices. Some people who would live close to the towers also worried about long-term impacts to their health, although scientific evidence of a health risk hasn’t been established.

Point Roberts resident Steve Wolff underscored the scale of the dispute in October, when he called the radio-tower proposal an “international incident.” It attracted the attention of members of the Canadian parliament and other levels of government north of the border. U.S. Rep. Suzan DelBene, who represents Point Roberts, has been a vocal coalition supporter.

The hearing examiner’s decision, and the coalition’s defense of it in a written argument submitted to the council on Dec. 17, hinge more mundanely on a 45-foot height restriction in Point Roberts.

“Nowhere in the Whatcom County zoning ordinance can the hearing examiner find any section which can be interpreted to allow radio broadcast towers to exceed the height limit of the underlying zone,” Hearing Examiner Michael Bobbink wrote on Oct. 30.

In rebuttal, attorneys for BBC Broadcasting said the status of radio towers as public utilities that provide “vital public services” trumped any height requirements. The applicant in its appeal criticized the hearing examiner for not even hearing arguments that would weigh the competing requirements in the county code.

“The hearing examiner adopted an easier, oversimplified approach to reading the code,” the appellant’s argument said. “This approach may have ... avoided a complex and lengthy hearing, but it is deeply flawed and legally erroneous, and must be overturned.”

The appellant argued for its status as a public utility by noting that north Whatcom residents of Punjabi descent have come out in support of KRPI, which currently broadcasts from towers outside Ferndale.

“The programming informed listeners of local Whatcom County news and allowed the county’s South Asian population to engage in the democratic process,” the appellant’s argument said.

The coalition countered that this claim was disingenuous because most of the radio station’s listeners and all of its revenue come from Canada.

The council’s meeting on Tuesday will be held at the county courthouse, 311 Grand Ave., Bellingham.