A green box on a map could be the smoking gun in determining if a 300-foot tower on Awbrey Butte was built where it should be.
On Tuesday night, Bend Hearings Officer Karen Green listened to testimony about why Combined Communications built the radio and television tower outside a green box that was labeled on an approved site plan.
Tuesday's hearing focused on several items in the Awbrey Towers LLC expansion. The bulk of the discussion centered on whether the location of Combined Communications' tower was where Green intended it to be when she approved the original expansion plan.
If not, Chackel Family Trust LLC, owner of Combined Communications, asked that the approval be modified to allow the tower to stand.
Awbrey Towers LLC - a consortium of broadcasting and tower builders - also wanted clarification of where additional tower expansion could occur on the 19-acre site atop Awbrey Butte.
More than 30 people packed into city council chambers to hear the testimony Tuesday.
Green told the applicants Tuesday that she had believed the Combined Communications tower would be built in the green box shown on a site plan she approved during the original expansion process. The green box was labeled as the future site for the Combine Communications tower.
”It seems to me it would be reasonable for me and anyone else to assume by the box that it has some significance. It identifies the area the proposed Combined Communications facilities would be located,” Green said. ”That is what I thought it would mean.”
Awbrey Towers Attorney Tami MacLeod said there was a fundamental difference in what her client thought it was asking for and what was approved. She said the green box was a general description.
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 location indicated in the green box on the applicant's site plan. Neighbors say the tower was built 50 to 60 feet away from the box.
Attorney Greg Lynch, representing Combined Communications, said Green clearly indicated the tower and other expansion of the site should go on a 6-acre site. The tower extends just 10 feet outside that 6-acre site and Lynch said the slight shift in location has no significance.
”It looks precisely as it would have if it were in the 6-acre site,” he said.
Lynch said the discussion of the green box didn't arise until the tower's construction.
”It never appeared anywhere in your order, anywhere in the application of burden of proof or in any testimony that the green box had any significance whatsoever,” Lynch said.
Green said that although her original opinion took a broader view of Awbrey Towers' 10-year expansion plan, she also was taking a closer view.
”Depending on where people live, 20 to 30 feet may make a difference,” Green told the applicants. ”That had to occur to you in hearings. That had to be an issue for you.”
Green heard testimony Tuesday night, but did not make a decision.
In March 2004, Awbrey Towers received approval from the city council to expand its facility. Since then, the approval has been appealed by opposing neighbors.
In the last year and a half, the case has traveled back and forth between the Land Use Board of Appeals, the city and the Oregon Court of Appeals.
If the tower needs to be torn down and moved, the Chackel Family Trust has already supplied a bond to pay for the cost.