Hearings officer Karen Green said the location of a 300-foot radio and television tower on Awbrey Butte was not built in an area she approved two and half years ago .
In a decision issued Friday afternoon, Green stated that she would not approve the change in location for the Combined Communciations tower, which was built in the fall of 2004.
In an October hearing, Combined Communications asked Green to determine if the tower was built in the right location. If it wasn't, the company wanted Green to approve the change.
In October, City Planning Manager Dale Van Valkenburg said if Green's ruling found that the tower is out of compliance with her original approval, the city could then tear down the tower or move it.
As part of the original agreement with the city to build the tower, Chackel Family Trust, LLC, which owns Combined Communications, set aside money the city could use for moving or tearing down the tower.
The tower leases space for three radio stations and a television station.
Green's decision indicated that if Combined Communications wanted to keep its tower at the current location, the company would have to go back through the city's land use review process.
It is unclear what will happen next. Both Combined Communications, Awbrey Towers LLC - a consortium of broadcasting and tower builders - and the opponents have 12 days to appeal Green's decision to the Bend City Council.
The council can either decide to hear the appeal or pass the appeal on to the State's Land Use Board of Appeals.
Representatives from Combined Communications and the Chackel family could not be reached for comment Friday night. Tamara MacLeod, attorney for Awbrey Towers, said late Friday night that she had not yet reviewed the decision and was uncomfortable commenting on it.
Debi Curl, a long-time opponent of the tower farm expansion, said that, for the most part, Green's decision was good news.
”It is my understanding, if the city enforces its code as written that the tower needs to be moved from its present unlawful location into a lawful location as approved by Karen Green,” Curl said.
In December 2003, Green approved a plan for the new 300-foot Combined Communications tower, along with a new 140-foot-tall lattice tower for Western Communications, a 100-foot increase to the 200-foot-tall Gross Communications tower, a 100-foot increase to the 200-foot-tall KTVZ tower, a 50-foot increase to the existing Oregon Public Broadcasting tower and a 60-foot reduction to the 100-foot-tall Western Radio tower.
The decision Green issued Friday also denied Awbrey Towers' request to build new towers for KTVZ and Gross Communications outside the six-acre site that Green approved in 2003. The companies had wanted to move the towers instead of adding on to the existing towers as originally proposed.
Green stated that in 2003 she ruled that all the approved tower facilities were to go in a designated six-acre site, with the exception of Combined Communications' tower. That tower was to be built within a mapped out area, detailed by a green box on the applicant's site plan.
Combined Communications' tower was built in the fall of 2004. At the time of construction, neighbors notified the city planning department that the tower was not in the proper location. Neighbors said the tower was built 50 to 60 feet away from the box.
Green said in her decision that Combined Communications' arguments for why it was built in the wrong location were ”unpersuasive and a bit disingenuous.”
In the material submitted to Green, Combined Communciations said that the green box drawn in the site plan was never considered to be anything more than ”a general area for lease and a general vicinity for tower development purposes.”
During the October 2005 hearing, Chackel's attorney Greg Lynch said the tower extended just 10 feet outside the 6-feet acre site where Green had approved new towers to go.
Green's 2003 decision to allow Awbrey Towers to expand its facility was approved by the council in March 2004. Since then, the approval has been appealed by opposing neighbors. In the past two years, the case has traveled back and forth between the Land Use Board of Appeals, the city and the Oregon Court of Appeals.
In her decision Friday, Green mentions the ”long-running, complex, contentious - and increasingly acrimonious - dispute” between the the Chackel family, Awbrey Butte transmission facilities, opponents and the city.
Green stated she ”has no illusions” that her decision would end that dispute, but hoped it would clarify the locations she approved for the entire tower site, Combined Communications' towers and the fence surrounding the tower.
In Green's decision, she did approve Awbrey Towers' placement of a fence, which was built summer 2005, on the outskirts of the tower site. Green previously ordered the fence built to keep people away from the towers.
Curl said that from the opponents' side there are many areas that are opened for appeal. Most notably, Curl said she takes issue with Green's decision to let the fence remain where it is.
”I question how the hearings officer could approve the fence in an area that she had in an earlier decision found should remain as undisturbed land,” Curl said.