Homeowners settle lawsuit over Dungeness cell tower

By Matthew Nash • July 18, 2018 3:30 am
A cell tower in Dungeness will continue to operate broadcasting Radio Pacific, Inc. radio stations and as a hub for cell phone service providers following a settlement between Dungeness Heights Homeowners and owners of the cell tower and its property, and multiple other parties. Sequim Gazette photo by Matthew Nash
A cell tower in Dungeness will continue to operate broadcasting Radio Pacific, Inc. radio stations and as a hub for cell phone service providers following a settlement between Dungeness Heights Homeowners and owners of the cell tower and its property, and multiple other parties. Sequim Gazette photo by Matthew Nash

A legal dispute between Dungeness homeowners and owners/operators of a 150-foot cell tower is over.

Dungeness Heights Homeowners agreed to settle on July 12 with Radio Pacific, Inc., property owner Shirley Tjemsland, Clallam County, Bryon Gunnerson,Verizon Wireless and Clallam County Fire District 3 after two-plus years in courts.

The homeowners’ original intent was to prevent the wireless communication facility at 766 Brigadoon Blvd. from going up in their neighborhood. However, Attorney Gerald Steel for the homeowners said the parties signed a settlement agreement last week to go their own ways with all challenges against the tower withdrawn.

“(Homeowners) are ready to move on,” Steel said. “This is the best way to address it. It’s taken a lot of energy from members of Dungeness Heights Homeowners over the last three years.”

According to court documents from the Court of Appeals Division 2, the homeowners voluntarily withdrew their suits and that all parties are responsible for paying their own legal fees and costs.

Homeowners also agreed not to file any further challenges to the tower or things put on the tower consistent with original zoning permit, Steel said

Their first case in 2016 fought zoning permits for Radio Pacific, followed by a second case challenging the building permit of the tower and lastly a challenge of the use permit for the tower after construction. All three were consolidated into one case and brought before the Court of Appeals.

Prior to construction, the tower was set to be 100 feet tall at Clallam County’s set maximum, but developers applied for a conditional use permit and variance to raise it to 150 feet so long as the tower was disguised.

Hearing Examiner William Payne approved the decision in March 2016 and later Clallam County Superior Court Judge Erik Rohrer ruled against a land petition by the homeowners in February 2017. This allowed cell tower owner Radio Pacific Inc. to build the tower.

Homeowners protested multiple issues for the tower including it would cut into property values, emit dangerous radiation, be too close to nearby neighbors, and that it would go much higher than specified of nearby trees.

However, Rohrer said the homeowners couldn’t prove the tower would hurt property values, and that the tower wouldn’t denounce the county’s code of protecting natural views and local aesthetics.

David Alvarez, Clallam County chief civil deputy prosecuting attorney, said the settlement makes the homeowners’ appeals of the conditional use permit, the variance, the building permit and the subsequent certificate of occupancy null and void.

Eric Quinn, attorney for Radio Pacific, Inc., said his party “is relieved that (the homeowners) agreed to withdraw its appeals.”

Gunnerson, the cell tower project consultant, said following the settlement, Radio Pacific, Inc., parent company of KONP 1450AM/101.7 FM, KSTI 102.1 FM and KZQM 104.9 FM can continue to operate with KONP’s extension of service through Sequim expected this week.

Verizon, one of three possible cell providers on the tower, is almost up and waiting for final connections, he said, and AT&T and T-Mobile remain interested parties in expanding services, too.

Gunnerson previously said phone customers with Verizon will have have better in-home penetration of wireless service within about 3 miles of the site,

Clallam County Fire District 3 signed on and is already operating from the tower with an an increase in its radio frequency into Dungeness.

Mary Ellen Winborn, Director, Clallam County director of the Department of Community Development, said following the lawsuits, she and her staff plan to bring the “Wireless Communications Facilities” zoning chapter to the county’s Planning Commission for review “to better serve and protect residential character, property values, vistas, public health, safety and welfare.”

“By looking at site locations, new technology, rural zones, site priorities and development standards we can better serve the community while addressing the needs of the (Wireless Communications Facilities) providers,” she said.

Reach Matthew Nash at mnash@sequimgazette.com.