Homeowners association files another lawsuit against radio tower near Sequim

Article Courtesy of  The Peninsula Daily News
By Rob Ollikainen

Published April 17, 2018

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.

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.

 A 150-foot tall cell tower disguised as a Douglas fir tree looms over the Dungeness Heights neighborhood north of Sequim.

“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.