Nearly 20 acres of once-public land along the Rogue River near the Shady Cove bridge known as the Flywater can be developed, the City Council decided Thursday.
The council voted, 4-1, to rezone the land from public to private after a 31/2;-hour meeting and years of contention between the landowners and opponents.
The landowners — real estate broker Mike Malepsy and his wife, Bonnie, and California attorney Robert Kolodny and his wife, Martha Dudenhoeffer — requested the zoning change on the 19.5-acre parcel nearly four years ago. The property, commonly known as Flywater for the name of the partners' proposed development, sits along and on both sides of the Rogue River just south and west of the Shady Cove Bridge.
Mayor Ron Holthusen said he believed the issue was now one of property rights.
"Some of the questions tonight go back in time," Holthusen said, "and the reality is that the property was sold "… and today we have private property. "… As a council we're not indifferent to the various concerns that have been expressed tonight and in the volumes of testimony, but in my view, at the end of the day, it has become private property."
John Ward, conservation chairman of the Rogue Flyfishers, spoke against the zoning change at Thursday's meeting.
"Allowing medium density development along the Rogue River doesn't seem to satisfy the city's stated goal of preserving the pristine quality of the Rogue River," he said.
The land was previously owned by the Oregon Department of Transportation, which had abandoned the idea of using it as a potential site for a future bridge and was looking for a buyer.
For more than a decade, the City Council had wanted to purchase the land and use it as a city park, but it never had enough money.
Malepsy approached city officials in early 2007. The partners offered to provide ODOT's asking price of $575,000, if, after the city acquired the land, it would immediately transfer it to Flywater.
Once the property was rezoned from public land to private, and a development agreement signed, Malepsy and Kolodny agreed to donate six acres of the property back to the city for a park.
The council unanimously agreed to the property transfer and the purchase was made, ultimately leading to years of heated meetings, public hearings and threats of litigation.
The issue finally came to a vote in December 2010 and the council unanimously refused rezoning, saying that the requested R3 zone would allow high-density development in a sensitive ecological environment. The partners filed an appeal with the state Land Use Board of Appeals.
Last November, the council agreed to revisit its decision and attempt to renegotiate with Flywater. LUBA released the case and in August of this year, the city and Flywater signed a new agreement that limits development to a maximum of 40 residential units.
Councilman Gary Hughes, who voted for the original sale to Flywater, but opposed both the new agreement and Thursday's rezoning, said he regretted his original approval.
"Four or five years ago when we approved this, we jumped on board and were rah-rah for this," Hughes said. "We were probably ill-advised by counsel and our staff. I made a decision then that I do regret. Since that time, I've been trying to make decisions that would correct this, but I don't know if it ever will. "… We should never have entered into this and this property should have always been maintained as public."
When Hughes began to question how the property would be developed, Councilman Bill Kyle, the only other current council member to vote for the original sale, said Hughes was getting "too deep into development."
"That's down the road a'ways," Kyle said. "If this is approved, development is a whole new ballgame."
Hughes asked how the council could be sure that Flywater's agreement to build only 40 residential units wouldn't be changed if the property was sold to a new owner.
"In our agreement is a deed restriction, and the deed restriction is recorded against the property, which prohibits us or any successor or interest to ever apply for R2 zoning, or to ever apply for more than 40 units," Robert Kolodny said.
Local resident Jane Hagan said she and her husband had worked diligently during Planning Commission hearings to point out what they considered were flaws in the application.
"But in the end, the commission passed it on to you anyway. "… as a result, my husband and I were forced to secure outside help in our quest to save Shady Cove from this huge mistake this planning zone change represents."
Writer Bill Miller lives in Shady Cove. Reach him at firstname.lastname@example.org.