Shady Cove city council on Flywater

Four attorneys, three and a half hours, two recesses; mix and you get one decision on Flywater. Specifically you get a 4/1 vote approving an application with conditions for a Comprehensive Plan Amendment and Zone Change for property located at the end of Brophy Way, tax lots 400 and 402. Council member Gary Hughes stood as the sole “no” vote and stated during discussion he felt the city council had been ill advised by attorneys at the start of the Flywater issue and he regrets his initial decision.

Four years ago ODOT sold the tax lots in question to the city, which then sold the property to Flywater, LLC and the process of the zone change began. In late 2010 the application received Planning Commission approval, sending the matter on to city council. In December 2010 council denied the application feeling the development went against the Comprehensive Plan and was not in the best interest of the city, due in part to the large number of dwelling units that could potentially be built there. The applicant then made an appeal to the Land Use Board of Appeals (LUBA). After a series of special meetings and a re-working of the original acquisition and disposition agreement on the land in question, council opted for a voluntary remand – a kind of ‘do over’ for grown ups. Everyone pretends the 2010 Public Hearing never happened and they start fresh in 2012 with the hope of everyone reaching a mutually agreeable result. The 2012 start was relatively fresh as volumes of written information have been submitted into record from both sides during the nearly two years from the initial denial to the present.

Both proponents and opposition took advantage of every available second of testimony time. Proponents felt the application met the minor amendment criteria without exception. Attorneys Mark Bartholomew and Clark Stevens argued the case for applicant Mike Malepse who used his time to “vent frustration.” The timeline and expense of the process were his main points. He also said that “98% of the people in this community support this,” probably a bit of an exaggeration that, as other recent topics of controversy have shown one can never get 98% of the population of Shady Cove to support anything. Still, in this matter Malepse came out the winner as he did get 80% of the council’s votes.

The opposition sought the devil in the details, but he remained just out of reach. Example: Opponent Jane Hagan questioned whether or not Flywater, LLC truly had 40 feet of right of way on Brophy. She felt the correct number was 20 feet and further believed 60 feet were necessary for road improvements required for a development the size Flywater proposes. Quick research showed 40 feet is the magic number both ways; that is the size of the right of way and the size required. Opposition also worried that up to 240 dwelling units could be built on the lots despite the 40 limit stated in the acquisition and disposition agreement. Flywater Attorneys assured 40 was the absolute top number, and even a future sale of the property could not increase that (note: “dwelling units” = number of livable spaces – so a duplex would be two dwelling units).


In the end the council vote came down to their belief the application did meet the criteria and that they couldn’t undo the initial ODOT/City/Flywater transaction, but could only move forward with the current state of things and facts at hand.


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