NeighborhoodNet has obtained memos which show how closely together the City and the developers work to deny citizens their rights. These were found by neighbors during the discovery process in their lawsuit against the Target at 151st near Antioch and the City of Overland Park.

Last Thursday Rob Roberts wrote an article in the Sun on the lawsuit.

The lawsuit is about the way the City handled the Target application:

• Denying citizens the opportunity to provide input and showing the developer how to go about that;

• Misinterpreting the criteria that define a "significant change" to a plan;

• Ignoring their own guidelines for a shopping center.

This attempt to exclude citizen input and bend over backwards for the developer is nothing new - pretty much par for the course for the majority of the Governing Body (citizens began to change that with the Ward 5 and Ward 6 elections last week) and its appointees.

What is new is that the neighborhood lawsuit included a "discovery" phase during which neighbors uncovered memos that showed just how the City and the developers' lawyers worked together to exclude citizen input and avoid hassles with the Corps of Engineers.

The Anti-Citizen Government

Roberts' article elicited this amazing comment from Bart Budetti, which shows just how anti-citizen this government is:

"When someone has filed an application 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."

Think about that sentence:

The developer pays a fee, so the City feels obligated to strategize with the developer to speed up his application. Citizens are taxed to pay for the Planning staff and the City Government, but the City feels no obligation or desire to contact and solicit citizen input, to strategize with them on how to build a better City. In fact, they go out of their way to avoid it.

Budetti simply assumes citizen input is detrimental, while developers' input is not. He represents well the culture of this City government.

And these people in the government honestly believe they are doing their jobs well. That they should avoid getting citizens involved. That it would not be helpful to get their constituents' ideas.

How clueless can you get?

This is the kind of government you end up with when developers fund the campaigns of the City Council members and the Mayor year after year after year.

Overland Park's Strategy To Exclude Citizen Input

Here is the happy reaction of the developer's attorney when Overland Park and the developer reached consensus on their new plan:

"The implications of this decision by the professional Planning Staff are (1) we do not notify surrounding property owners; (2) a protest petition would not be in the neighbor's arsenal of weapons."

[See memo written on behalf of Larry Winn, attorney for the developer at the Missouri law firm of Polsinelli, Shalton, Welte]

"Arsenal of weapons"!

In a nutshell, the developer and the City faced this problem:

The current zoning was based on a "preliminary plan" that applied to the entire tract of land. The tract included two parcels, one includes a wetland, one does not. In order to avoid problems with the wetland, the developers told the Army Corps of Engineers they were being planned for development as two separate parcels. Apparently after much discussion, the Corps of Engineers agreed to go along with this, requiring a restrictive permit on the wetlands parcel but not on the other. The developers did NOT want to go to the Corps with a single plan after all the problems of getting this agreement:

"we cannot merge or consolidate the two applications that we have just filed for approval of a Revised Preliminary Development Plan where we jeopardize the whole agreement with the Corps of Engineers that was so difficult to obtain in the first place."

[See the memo from Polisnelli attorney Larry Winn].

The City also understood the problem, as described in this email from Tony Meyers, a City engineer.

But the City, if it followed normal procedures, which it started out doing, would only consider a revision to the original preliminary plan by treating both parcels as one tract in its entirety. The idea of treating them separately with two applications was not going to cut it:

"Larry,

I hope you got my message regarding the revised preliminary plan for Target. In short, with some modification to the parking lot for Parcel 1, the plan can proceed without notification. It is our opinion, however, that a single revised preliminary plan should be filed for REZ 71-45."

[See the memo from City Planner Leslie Karr.]

So the City wants one plan, the Corps had been sold on two. What to do?

The City, paid for by citizens, and the developers, who fund Governing Body campaigns, came up with a marvelous solution. Call it one plan, but with 2 phases.

Then the City managed to come to the conclusion that the new plan submitted by the developer was not much different than the original preliminary plan. So there was no need for citizen input and no protest petition could be mounted.

When Is An Apple Like An Orange?

Is there a significant difference between the original preliminary plan and the new one submitted by Target? If you were asked to compare these two plans, what would you say:

Plan 1, the original:

A single owner has one plan with an "anchor store" of 72,000 sq ft which was a grocery store on the west side. On the east side a few neighborhood oriented stores, none of which would be over 20,000 square feet. Designed to be pedestrian friendly with sidewalks among the stores, protected from street traffic. It would follow the Overland Park shopping center guidelines that kept land below the level of the nearby neighborhood, to avoid car lights from flashing through their yards and home. That was the basis for the re-zoning years ago.

Plan 2, the sequel:

A single huge box store of 176,000 sq ft placed on the east parcel parcel instead of the neighborhood stores. The land raised so high that car lights will shine into the second story windows of the neighbors. The second parcel to the west is left undeveloped during "phase 1", but it eventually is to get an 88,000 square foot store, even larger than the original anchor store. And to top it off, the two parcels are now owned by two different groups of investors.

Common sense tells you these are completely different. It's like comparing apples and oranges.

And do you want to know something? Not only does common sense tell you they are "significantly different", Overland Park's own ordinance lays out criteria for judging whether two plans are significantly different.

Those criteria are just like your common sense - they also say the new plan is significantly different. Here's one criterion for judging plans different: "changes in ownership patterns or stages of development that will lead to a different development concept."

Unless, of course, you are a Planning Commission appointed by a Mayor with the ratification of the City Council. And the Mayor and his buddies get their campaign funding largely from the developers. Including, not surprisingly, the firm of Polsinelli, Shalton, and Welte.

The developers may not be that good at designing citizen friendly stores, but they are darn good choosing sympathetic candidates who then appoint sympathetic Commmissioners.

So What If The Two Plans Are Different?

Here is the problem for the developer (and, sadly, for this City Government) if the plans are significantly different.

Under Overland Park ordinances, a zoning is based on the Preliminary Plan. If there is a significant change to the Preliminary Plan, then the application is treated as if it were a request for a rezoning. Under Kansas law and Overland Park Ordinance, any request for a rezoning:

1. Requires that citizens be allowed to speak publicly to the Planning Commission;

2. Requires that the City Council itself approve the application, again with citizen input;

3. Provides nearby property owners the right to submit a legal protest petition, which then requires a "supermajority" of the Governing Body to approve the application. In other words, if 4 of the 13 City Council members vote against the application, it fails. (3 of 11 when the Target was being considered.)

None of the above is true if there is NOT a significant difference: no citizen input, no public hearings, no protest petition.

Instead, the City gets to fight a lawsuit which arises from its opposition to citizen involvement and neighbors get to pay $60,000 in attorney fees.

Thank you Planning Commission and Governing Body for your thoughtful service to your constituents.

Definitions

"col·lu·sion (k-lu'zhn)
n.
A secret agreement between two or more parties for a fraudulent, illegal, or deceitful purpose."

"de·ceit·ful (di-set'fl)
adj.
Given to cheating or deceiving.
Deliberately misleading; deceptive. See synonyms at dishonest"

In this case, the city's back office agreements with the developer saw the light of day.

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