Hearing on motion to stop
big-box to begin on Friday |
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BY ROB ROBERTS
SUN STAFF WRITER
Neighbors opposing a Target store now under construction at the southeast corner of 151st and Antioch in Overland Park say they’ve spent close to $60,000 on an attempt to block the big-box intruder in court.
In contrast, the neighbors say, Target representatives received extensive free advice from city legal and planning officials, who helped the retailer devise a complex plan leading to approval for the 127,000-square-foot store without public input into the process.
“When my taxpayer dollars go to people who try to, in effect, cut out my constitutional rights, I’m shocked,” Doug DeZube said. “I just can’t believe that.”
DeZube, an attorney, is one of 10 Overland Park residents who along with their Kingston by the Park and Kingston Lakes homes associations have filed a lawsuit against the city in Johnson County District Court in an attempt to stop the Target development. A hearing on the neighbors’ request for a temporary injunction, which would halt construction on the Target until the case is decided, is scheduled for Friday.
“The crux of the lawsuit,” DeZube said, “is that, basically, the citizens were denied their rights to take this development plan to our City Council.”
Worse, DeZube added, the plan that city officials helped Target and its representatives from the local law firm of Polsinelli, Shalton and Welte devise also cut short public input before the Planning Commission, which approved the project on Aug. 12.
Objecting to a series of e-mails sent between city officials and Target representatives in July, DeZube noted that “nobody sent me an e-mail saying this is the secret formula to defeat Target.”
According to Overland Park Assistant City Attorney Bart Budetti, that would have been inappropriate.
“In general, without addressing the Target situation specifically, I think there is some lack of understanding on behalf of a number of members of the public as to exactly how the planning process works...” Budetti said. “When someone has filed an application and paid a fee, we have an obligation to deal with them. It would be highly improper for the city to say ‘Well now, do you think there are some people who might oppose this? Let’s go find them and tell them how to strategize.
“If we were ever to do something like that and then the applicant were to take us to court, we wouldn’t have a prayer.”
Budetti added that he could understand how the public might view extensive correspondence between developers and City Hall and conclude “that we are somehow in league with or in conspiracy with them.”
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“But that’s just how the planning process works,” he said. “If they think someone submits an application and then gets a letter saying, ‘It’s not approved. ‘Try again. But we’re not going to tell you why it wasn’t approved the first time’-well, that’s just not very realistic.
“Some governments may work it that way. But that’s not the approach of Overland Park.”
According to DeZube and Kingston Lakes Homes Association president DeWayne Bridges, they had no problem with Overland Park’s approach when plans and a rezoning request for the new Target store were considered during the Overland Park Planning Commission’s July 8 meeting.
At that point, public input regarding the project was required as a result of Target’s decision to seek downzoning from the CP3-J zoning that the site came into the city with upon annexation in 1985 to CP-2 zoning. According to the developers, the downzoning request had been made as a concession to the city planning staff and neighbors. But after Planning Commissioner David White likened the Target proposal to “cramming 50 pounds into a five-pound bag” and neighbors accused Target of seeking the city zoning only to achieve laxer parking and setback requirements, the developers changed their approach.
After escaping the July 8 meeting by a 4-3 Planning Commission vote in favor of a continuance, Target decided to drop the rezoning request and seek approval under the city’s revised preliminary-plan process.
That process is controversial because it allows projects to be approved without public input, without consideration by the City Council and without provision for protest petitions, which, if valid, require City Council supermajority approval.
But Target defended its request for revised-preliminary-plan approval by |
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pointing out that its project and a planned 88,000-square-foot retail project that adjoins it to the west totaled 24,000 fewer square feet than the 240,956-square-foot neighborhood shopping center approved for the site in 1997 but never built.
Roger Peterson, Overland Park’s director of planning, subsequently ruled that the companion projects did not represent a “substantial change” based on Unified Development Ordinance (UDO) standards used to compare original site plans and revisions. And on Aug. 12, the Target project was approved by a 9-1 Planning Commission vote as neighbors listened in silent frustration.
During the Aug. 12 meeting, Planning Commissioner Richard Collins cast the lone nay vote, saying he was disappointed that Target had refused to comply with his request to move the store north toward 151st Street to leave more separation from single-family residences to the south.
Even a slight shift of the building’s footprint, however, could have caused the project to be defined as a "substantial change" under the UDO standards, which
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prohibit revised-preliminary-plan approval in cases where any previously approved peripheral setback is decreased more than 5 percent.
According to DeZube, the UDO includes 12 criteria for determming whether a revised development plan represents a substantial change from a previously approved plan. And, while the Target retail complex may not violate setback or square-footage criteria, he believes it should have been considered a significant departure based on several of the other criteria.
“We believe there are substantial architectural changes,” DeZube said, “And we think there are big-time traffic-pattern changes.”
But the real “no-brainer,” he added, involves a UDO criterion that prevents revised-preliminary-plan approval for projects that include “changes in ownership patterns or stages of development that will lead to a different development concept.”
The Target plan represents a “different development concept,” DeZube argued, because it is actually only one of two projects proposed by separate owners for
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the site where a single shopping center was previously proposed.
To get around that hurdle, DeZube continued, city staff members advised Target representatives that they could present the separate projects as a single, two-phase project.
By not requiring the projects to be merged, DeZube added, the city helped Target receive speedy permit approval from the Army Corps of Engineers, while the existence of wetlands on the western edge of the site has led to a lengthier permitting process for that acreage.
According to DeZube, “they’re claiming over here with the Corps that it’s two development plans, and they’re claiming over here with the Planning Commission that it’s one. Well, it can’t be both.”
Had a single application been filed for the companion projects with the Army Corps of Engineers, Kingston Lakes resident Jane Haahr added, construction on the Target store would have been stopped even without a court decree.
After developers tore up the wetlands recently, she explained, the Corps of Engineers stopped work on that portion of the site |
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and gave the developers the choice of restoring the damaged wetlands or seeking a permit that would allow excavation and filling to occur in the area.
“The developer is also not complying with the Overland Park stream water ordinances, which will cause more problems for people downstream,” Haahr wrote in a letter to the Corps. “They have elevated the grade on the eastern portion of the site to a point where they now acknowledge that neighbors abutting the southeast corner of the site will experience flooding and Lowell Avenue will be subject to being covered with five inches of water.”
DeZube, who resides across Lowell from the proposed Target, said he purchased his home after checking out the previously approved plans for a neighborhood center, which he had no problem with.
“But if this is what the city can do,” he said of the Target development, “then you better fight everything along the way, because they’ll approve a nice little Bagel & Bagel, and the next thing you know you’ll have Worlds of Fun next to your house.”
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