JCSC _______ Johnson County South Coalition

February 7, 2002

Urgent: If At First You Don't Succeed Try To Eliminate Citizen Participation!

On Monday, Feb. 11, 1:30, at the City Planning Commission of Overland Park,

Stewart Stein will request consideration of amendments to the Unified Development Ordinance (of Overland Park ) regarding required notification for Revised Preliminary Plan Approval. (Case No. PLM 2002-3).

In a letter to the city, Mr. Stein specifically stated that he will seek to amend the requirement that requires a notification of 1,000 feet for county residents that border a city project. (Overland Park Ordinance 18.140.080) He will contend that a "revised preliminary plan" does not warrant notification to 1,000 feet for county residents.

We say--wait a minute--not so fast! How can the participation of citizens granted by Kansas Statute 12-757 be so blatantly disregarded? What is the real scoop on this issue? Overland Park's own ordinances say that if a revised preliminary development plan has a "significant and substantial change" then it is considered a rezoning and citizens get a say in the proceedings--200 feet notification for city residents, 1,000 feet for the county--if the project borders the county. (This stipulation is granted by Kansas Statute 12-757.)

A little history: As you all know, Mr. Stein is the lawyer representing landowner LeLand Brown and his parcel of land on the NW corner of 159th/Metcalf. Wal-Mart wanted this land for it's Wal-Mart SuperCenter. This project was different from most in that 159th street was the boundary line between Overland Park and Johnson County. The first time this Wal-Mart plan came around, Overland Park ruled that the plan was a revised preliminary plan from the original 1996 plan and it had "substantial or significant" changes that required that it be treated as a rezoning. (See Overland Park Unified Development Ordinance 18.140.200 for a list of 11 changes which could require a rezoning status.) Kansas State Law 12-757 states that for any rezoning efforts, "If a city proposes a zoning amendment to property located adjacent to or outside the city's limits, the area of notification for the city's action shall be extended to at least 1,000 feet in the unincorporated area."

Therefore, citizens in Overland Park within 200 feet of the property were notified

and citizens 1,000 feet from the project in Johnson County Unincorporated were notified.

Furthermore, this notification area made up the protest area--and if 20% of the surrounding land opposed the project then it could pass only if a super majority of city council members voted in favor of the project. So here's what happened: Wal-Mart

lost the first time around because surrounding citizens(200 feet in the city, 1,000 feet in the county) turned in a valid protest petition against the project and there was not a super majority of city council members to approve the project.

Wal-Mart and Mr. Brown subsequently took the City of Overland Park to court contending that a protest petition was invalid on this project. This court case was recently dropped.

So now it appears that Mr. Stein is trying to get the city to rewrite its ordinances to that county residents who border a city project within a 1,000 feet will have no say--even though a project could dramatically affect their lives and property values!

We strongly oppose these efforts. State law says that citizens have a right to protest a project--200 feet in an incorporated city, 1,000 feet in unincorporated--and if a project within a city borders a county unincorporated then the county residents will be given 1,000 notification. Furthermore, Overland Park would have to rewrite a substantial part of its ordinances in order to accomplish this change.

As we stated, Overland Park U.D.O. 18.140.200 states that if changes occur in a preliminary development plan it becomes a "revised preliminary development plan." If the changes are major (and there is a list of over 11 different ways a project can change) then it has to have a hearing:

"Substantial or significant changes in the preliminary development plan may only be approved after rehearing by the Planning Commission and Governing Body; such rehearing shall be subject to the notice and protest provision set forth in Section 18.140.150

In turn, Section 18.140.150 Part A , requires that there be "publication notice and notice to surrounding property owners as required by Sections 18.140.070 and 18.140.080, respectively.

Then, Section 18.140.080 (as just mentioned) requires that:

"If the subject property is located adjacent to unincorporated property outside the City's limit, then the area of notification shall be extended to include all unincorporated land within 1000 feet of the subject property." The regulation continues by defining adjacent as a city boundary line, etc.

The law is firm about this procedure: Revised preliminary plans that entail "substantial or significant" changes are subject to hearings and notifications for BOTH city and county residents if the project borders county property.

In conclusion: We strongly support the present Overland Park ordinances which require that "substantial and significant" changes to a preliminary development plan be classified as a "revised preliminary development plan" subject to rezoning sections on notification and protest petition. We ask that Overland Park not rewrite these rules just to keep developers happy--we believe there are ramifications in Kansas State law. These rules were put into place to protect citizens from ill-advised projects. This notification provision is only causing alarm now among developers because they have begun to realize that ordinary citizens can mount effective protest petitions and stop projects.

After all, the world's largest corporation was stopped the first time--and almost stopped the second time around.

We citizens want a level playing field. We do not want rules of the game to change the minute a developer gets upset. Many people are watching this issue and we ask that Overland Park not allow a change to this notification requirement which would have broad ramifications not only for its residents but for County/City agreements as well.

Thank you.

Council, Johnson County South Coalition

Michaela Brady

John Coffelt

Wendy Crosby

Jim Hall

Sandy Hall

Greg Lundstrom

Laurie McCammon

Chris Norton

Bob Phillips

Shirley Phillips

Doris Riley

Jill Smale

Jim Wise