There has been little activity recently regarding this controversial project.  The developer appears to be wisely laying low and focusing on other property in town (see Flywater Prequel).  There is a floodplain permit on file at City Hall for construction of a road through the property; however, this doesn't appear to have anything to do with a city park.  Meanwhile, the issue of the legality of the sale of this property by the City to the developer is still an open question.
  Last summer an informal complaint was filed with DEQ (Department of Environmental Quality) for riparian damage to the riverbank on Flywater's Brophy property located within city limits.  However, when DEQ contacted the City, they were told that Shady Cove doesn't currently regulate the riparian areas adjacent to the Rogue.  City Hall also told DEQ that the Forestry Department had instructed the owner to remove the vegetation due to fire protection regulations.  A check with ODF found that to be false.  Then we were told the permission for clearing had come from State Lands Department; but that also proved to be false.
    In addition, no floodplain development permit was taken out with the City for this riparian "clean-up," which could potentially get the City back into trouble with FEMA. (See And A River Runs Through It ).
   In May of last year the City held a love-in, masquerading as a public hearing, to consider the "disposition and conveyance" of the Flywater property.  The hearing was unlawful and unnecessary, serving only to allow the City to once again be exploited by Flywater.  The cost of using and securing the Council Chambers, as well as staff time to prepare notices, etc. was paid for by all of us.  The event was cited as taking place under ORS 221.725; however, that statute stipulates that a public hearing be held prior to the disposition of city-owned property.  The property in question was actually sold by the City to Flywater in February of 2008.
   It is easy to ascertain who are the culpable players in all this when you listen to the Executive Council recordings of 3/15/07 and 4/3/07, and Mr. Malepsy's presentation on 2/19/09.  In essence, this developer, with the help of City Hall, slid under the radar of all the statutes requiring due process and convinced the City to sell him the property via an exclusive negotiation agreement, thus ensuring he wouldn't have to bid against others for this valuable property.
   The developers have always been the lead on this one, watching and waiting for an opportune time to strike a good deal, not for the City so much as for themselves.  From the time negotiations began in early 2007, the conversation was always about how the City couldn't afford to buy the land for the park without Flywater's help.  However, we have documents in hand from ODOT confirming that there were funds in the City Parks SDC's to purchase this land all along.  In addition, not once in all this has anyone mentioned the land sales contract option, which is described in more detail in Sections 9.415, 9.440, 9.465, 9.485, 9.535, 9.610 of Chapter 9 of the Oregon Right of Way Manual.  If the City truly didn't want to deplete park funds, such a contract would have spread the cost of the park out over many years, allowing the City to dispose of the property in any way it saw fit, and obtain the funds to pay the State over time.
   Raising questions about this matter has never been about whether or not Shady Cove should have another park.  Rather it is about how Shady Cove has chosen to go about getting another park. Time and time again we were stalled at City Hall trying to obtain public documents on this deal.  Furthermore, this so-called "gift of a park" to the City by this developer has so many conditions attached to it, Shady Cove will probably never see a bona fide park out of this deal.   
   It is interesting to note that during Council comments near the end of the 2/19/09 meeting, Councilors Hayes and Bradburn not only condoned the action of the City in participating in this hidden, unlawful sale, but also were critical of attempts by citizens to rectify this situation and return badly needed revenue to our City.  At the time this sale was made, the County Assessor had valued this property, sold to Flywater for $575,000, at $1,086,830.