Charles M. Benjamin, Ph.D., J.D.

Attorney at Law

P.O. Box 1642

Lawrence, Kansas 66044-8642

(785) 841-5902

(785) 841-5922 facsimile



August 30, 2002


Jack M. Epps

Attorney At Law

Bryan Cave LLP

7500 College Boulevard, Suite 1100

Overland Park, Kansas 66210-4035


RE: PRB-3 commercial development proposed for SE Corner 159th/Metcalf


Mr. Epps:


I represent Residents For Sensible Development, Inc. (RSD) whose members, along with residents in affected neighborhoods, have had an opportunity to review the newly revised preliminary drawing for Application No. OX-PDP-2285 Preliminary Development Plan 159th & Metcalf presented by you and Andy Schlagel on Saturday, August 17, 2002, on behalf of Blue Valley Plaza, LLC.


Residents have determined that these revisions to the original plan presented to the Johnson County Board of Commissioners on July 25, 2002 are unacceptable and do not answer the objections to the original plans put forth by the Johnson County Department of Planning, Development, and Codes; the Oxford Township Zoning Board; property owners living within 1,000 feet who signed the Legal Protest Petition; residents who submitted testimony; or the Overland Park Planning and Development Services Department, which co-authored the Master Plan. Nor does this plan comply with the County's Comprehensive Arterial Road Network Plan (CARNP).


Residents are disappointed that after the Chair of the Johnson County Board of Commissioners, Susie Wolf, requested that you work with neighbors to address their concerns, your new proposal shows so little substantive change from the original proposal. It provides no basis for discussion.


Residents were particularly concerned at your refusal to acknowledge that a re-zoning of the property to commercial PRB-3 violates the clear statements of the Blue Valley Plan, (a sub-area plan of the Rural Comprehensive Plan, commonly referred to as the Master Plan) that all of the subject property is planned for residential use. They note that both the Johnson County planners and the Overland Park planners - the co-authors of the Master Plan - stated that the Master Plan calls for this property to be residential.


In addition, Mr. Schlagel's statement that this proposal "sets patterns into play for future development on the Turner Property", the 40+ acre property to the south, also planned for residential uses, re-iterates the complete disregard Blue Valley Plaza, LLC. has for the Master Plan.


The Staff Report of June 14, 2002, by the Johnson County Department of Planning, Development & Codes enumerates how the original proposal "1) to rezone 31 acres from Rural to PRB-e, 2) to approve a Preliminary Development Plan to allow the construction and use of 292,000 sq. ft. of building area for a retail shopping center, and 3) for a Conditional Use Permit to allow portions of certain buildings to exceed the 30 ft. height maximum in the PRB-3 zoning district and instead allow a maximum height between 35 ft. and 50 ft. for certain buildings" violates the Golden Criteria. Neighborhood residents believe your new drawing does not resolve the following criteria as originally specified by the Planning department (Planning Department notes in quotes):


"1. Whether the proposed Zoning and CUP would be consistent with the existing zoning and uses of nearby properties.


"Conclusion: The requested PRB-3 zoning is not consistent with the adjacent low-density non-urban residential zoning."


Residents object to Blue Valley Plaza, LLC, having designated only about 3 acres of 31 acres to be residential, rather than the entire 31 acres as called for in the Master Plan. Furthermore, you have placed on those 3 acres approximately 7 to 8 dwellings per acre. In addition, you refused to state that you would ask that even those 3 acres be zoned residential, but instead would leave them zoned PRB-3.


"2. Whether the zoning and CUP is compatible with the character of the neighborhood."


"PRB-3 Zoning Conclusion: The PRB-3 zoning and 292,000 sq. ft. shopping center is not compatible with the immediately adjacent zoning single-family uses to the east nor is it compatible with the overall character of the neighborhood which is residential (80%)."


"CUP to Exceed Height Limitations Conclusion: the character of the neighborhood is defined by the existing residential uses. The residential buildings are low-level in nature and less than 30 ft. tall. Assuming that most of the proposed anchor buildings will be 44 ft. in height, such height is out of character with the surrounding neighborhood. In addition, the applicant requests a maximum height of 50 ft. in order to have flexibility during design and construction. Allowing even portions of the anchor buildings to reach 50 ft. tall would be grossly out of character with the surrounding buildings and neighborhood."


The new drawings presented by Blue Valley Plaza, LLC continue to call for PRB-3 zoning and a CUP to exceed height limitations. Hence, these plans continue to be incompatible with the character of the neighborhood.


"3. Suitability of the property for uses to which it has been restricted."


"Conclusion: The property is suitable for the agricultural or residential uses for which it is zoned. Alternatively, the property is suitable for the uses identified in the Comprehensive Plan."


Residents note that there are several intersections in Johnson County which have 3 corners commercial and the 4th residential, including single family residential, as the Master Plan calls for this corner to be developed.


"4. Extent of detrimental effects to nearby parcels should the PRB-3 zoning and CUP be approved."


"Conclusion: The extent of the traffic effects associated with the proposed zoning and development are so extensive that it would be detrimental to nearby residential property.


CUP to Exceed Height: If the buildings exceed 30 ft in height, the bulk associated with the increased height would be aesthetically detrimental and would affect the view sheds across the property from the east."


The addition of a 36 foot wide collector street in the new plan to replace the smaller service road has worsened the detrimental effects of the original plan to nearby parcels. In addition, the newly proposed residential density of 7 to 8 homes per acre will be an unreasonably abrupt transition from the adjacent 1 home per acre lots.


Furthermore, the new homes will not only be on this road, but will look across the new collector street to parking lots and huge buildings. It is unreasonable to believe the homes will be marketable at all, much less at the proposed price of $150,000 to $250,000 as envisioned by Blue Valley Plaza, Inc. The result is most likely that these homes will never be built and instead the land will ultimately be used for commercial purposes, thus being yet more detrimental to the nearby parcels. The fact that Blue Valley Plaza, LLB. refuses to ask for a re-zoning to residential for this acreage is consistent with this projection.


"5. Length of time the property has remained vacant as zoned."


"Conclusion: The property is presently vacant as zoned. Rezoning to a residential classification is appropriate provided development of the property is consistent with the recommendation of the Comprehensive Plan and provided that the infrastructure improvements necessary to support the proposed development are provided."


The new plan does not change this conclusion.


"6. Relative gain to the public health, safety and welfare as opposed to the hardship imposed upon the landowner by denying the request."


"Conclusion: In this instance, the relative gain to the public by denying the request outweighs the hardship imposed upon the landowner since the landowner still has the ability to develop the property to the current zoning classification or some other reasonable classification that is consistent with the Comprehensive Plan."


A new issue relating to public health has arisen since the original analysis of this project was written. The advance of mosquito borne West Nile virus has focused the attention of citizens and government officials across the country on the effects of detention and retention ponds. This proposal includes a large detention pond which will be placed right next to households some of which include children or people over 50, both particularly susceptible to the virus. The following quote from a Washington Post article (August 16, 2002 by David Cho) addresses the problem:


"St. Clair said many of the ponds are designed to drain and dry within 48 hours, faster than mosquito larvae can develop.

But a three-year national study by California researchers found that even the best designed basins harbored mosquitoes, mainly because their drains eventually clogged and crews were unable to keep up their maintenance, said Vicki Kramer, a senior official with the state's Department of Health Services who oversaw the project.

The report, which surveyed 28 states and was published this spring in Stormwater magazine, found that 86 percent of stormwater basins that were checked had mosquitoes breeding. Retention ponds are 'probably being constructed at rates exceeding our understanding of the long-term implications,' the study concluded."


The complete text of the original study, entitled "The Dark Side Of Stormwater Management Runoff: Disease Vectors Associated With Structural BMP's" is available in the March/April 2002 issue of Stormwater magazine.


Neighbors note that the existing pond on the property is located further from the neighborhood and in any case has fish which eat the mosquito larvae, neither of which is true of the detention pond.


A further objection to the detention pond is that such ponds by design capture and hold pollutants from the cars, trucks, and parking lots in the vicinity. These pollutants accumulate in the sediment on the bottom of the pond. The following quote is from a study of detention ponds done by the Department of Civil and Environmental Engineering, University of Central Florida:


"Pond sediments are rich in heavy metals such as lead, zinc, copper, nickel, cadmium, and chromium. Of these, copper, lead and zinc have been reported to compromise up to 90% of all heavy metals, excluding iron (Yousef et al., 1991)."



This pond bed, right next to where children play, becomes an attractive nuisance to the children. Pollutants found in the sediments of ponds that drain parking lots have been shown to include several toxic chemicals from the oil, anti-freeze, grease, and other pollutants washed down from these surfaces.


Residents are also concerned that the response time of emergency and fire vehicles from the fire station that this property surrounds on three sides will be increased. The result will be that life threatening emergencies will become more dangerous to residents and their children in school.


"7. Whether the use is in keeping with the Comprehensive Plan.


"Conclusion: The Blue Valley Plan designates residential use for the property in question. Commercial development would not be consistent with the Plan and would unreasonably obstruct urban-density residential uses planned for this property in the future. The requested commercial use is not only inconsistent with the residential designation of the Blue Valley Plan, but it is the most intense commercial use that can be requested in the County.


CUP to Exceed Height Limitations: As noted above, the Blue Valley Area Plan designates this property as residential. The proposed excess height is for commercial uses, therefore, the CUP does not comply with the Plan."


Residents in the surrounding neighborhoods are willing and ready to discuss appropriate development of this 31 acre tract in question. However, your continuing disregard for the Master Plan raises the question of just how serious Blue Valley Plaza, LLC is about working with residents.









Charles M. Benjamin

Attorney at Law





Johnson County Board of Commissioners

Roger Kroh, Director, Johnson County Planning, Development, and Codes

Paul Greeley, Zoning Administrator