The following is a letter sent to Leslie Karr, who is Senior Planner in Overland Park, KS, for a Target Store that is vehemently opposed by the vast majority of citizens nearby (of at least 50 letters sent to the City Council, 47 are in opposition).

Frankie Peschl, of Oak Park neighborhood, is one of the leaders of STOP, which is fighting the Target. Kathryn Terry, also of Oak Park neighborhood, is another. STOP includes members from Oak Park, Oakshire, Kingston Court, Kingston Oaks, and a growing list of neighborhoods from across Johnson County.

Neighbors discovered, and then the City confirmed, that there are serious issues associated with the required legal notification of surrounding property owners for one of the petitions, the "Target petition".

It has now been discovered by citizens that the second, related petition notification, the "Multifamily" one, is even more seriously flawed.

Citizens are asking that consideration of the Target and MF applications by the Planning Commission be postponed until at least 20 days after these issues have been resolved and proper notifications with proper legal legal descriptions be sent to the proper land owners.

Hi Leslie,

There are problems with both petitions and more information on the Target petition. Let me say right off, however, we much appreciate the assistance you and the Overland Park, KS, Planning Department have provided to residents and landowners affected by the Target/Multifamily applications.

I cover 3 main subjects in this article:

• Errors in the Target Petition Notification

• Errors which are more serious in the Multi-Family Petition Notification

• Apology to Leslie Karr

The Target Petition

We continue to believe, of course, that it is illegal to measure the 200 foot boundary from the street centerline rather than the property boundary. See Overland Park Ordinance

Some homeowners who fall within the extended boundary(see map supplied by Planning Department of Target protest petition area) have confirmed by email that they did receive the notification letter. This negates an earlier version of this article in which I stated they had not. There does seem to be agreement that all the people on 99th Street itself got their notification, although presumably with the wrong legal description of the property boundaries.

Also, Frankie tells me that in the information you sent him, you indicated Polsinelli's list of properties within the notification area did not match the City's list of properties. Could you confirm for us if that is the case and list the discrepancies, if this is not otherwise resolved?

Consideration of the Target application by the Planning Commission has been postponed because of the need by Polsinelli to correct errors in its handling of the notification letters.

Also, Kathryn Terry got in contact with the AG's office or someone who works with that office. Based on the information Kathryn had at the time and described to Special Agent Jerry Howland, if Polsinelli and the City went ahead with these boundaries, there could be significant legal issues with this application. However, as one of our attorneys once told us, you never want to be the one bringing the case, you want your opponent to be the one that is unhappy. I was glad to see your statement that if Polsinelli does not re-file on Target's behalf, the City will consider its options. It offers some hope. We really hope Polsinelli does the right thing, re-files, sends out the proper notification letter with the proper legal description to the proper landowners, and we all start from the proper point.

The Multifamily Petition Area Is Even More Seriously Flawed

I just realized looking over the map you provided the neighbors for the second protest petition (again, thank you, it is this open sharing of information by you that really helps citizens), that the second legal protest petition notification boundary also is drawn incorrectly. There are two issues to be addressed here.

1. As before, the 200' buffer was drawn from the center line of the street in the northeast and not from the property boundary on the north east side as the law requires.

2. Even worse, in this case the street in question is not a public street, it is private property which is part of Kingston Court subdivision. The Homes Association has the legal right to vote its private property as part of the legal protest petition. By excluding 1/2 of this property from the notification area because it is west of the street centerline, the private land owners of this property have been denied their right to vote this property. I note that on your diagram, the City did properly recognize that the street on the east is not public, so I presume that when the City computes the notification area, that, as ordinance requires, will not be subtracted from the total square footage within 200' [I am presuming that the City is going to subtract all the public rights of way as the law requires and as you have always done properly in the past. Please confirm this is the case]. According to AIMS, the street parcel of which half was improperly excluded is NP35400000 0T0E, which is labeled by AIMS land use "458P" - "Private R.O.W.", Private Right Of Way. AIMS also shows that this property is part of the Kingston Court subdivision.

I could kick myself for not getting a copy of these notification letters and tracing out the legal descriptions themselves on AIMS, which I sometimes do just for the interest (I have strange interests). Then these issues would have arisen much sooner. Instead I just went with the property boundaries as the law requires and used AIMS based on that. AIMS is one powerful tool for citizens, I have seen very few Counties with as sophisticated a GIS. Thank you Johnson County [and please add the capability to do buffers on more than one property at a time! It would mean a lot to citizens].

I am sure the neighbors would be happy to give Polsinelli several years to get these issues straightened out. Doesn't Polsinelli get more billable hours the longer this drags out? I sometimes think the Johnson County South Coalition and neighbors should be considered a profit center by Polsinelli just for the extra billable hours we no doubt bring them. They should pay us a per centage (I am joking, folks).

Joking aside, this is a serious issue affecting many people's lives and should be handled as such. Please urge Polsinelli and the City to re-schedule the Plannnig Commission's consideration of the issue.

Apology to Leslie Karr

I had an entire section in this location based on the erroneous assumption on my part that the City Planning Department had not notified the citizens of the problems with this petition as it had the applicant and it agents. For that mistake I have apologized, particulary to Leslie Karr, the Overland Park Senior Planner, who has handled this application in a very professional manner.

Thanks again, Leslie, for all your help on this.

It is much appreciated.

Sincerely,
Bob Phillips
16315 Dearborn Drive
Stilwell, KS 66085
913-685-1445

Overland Park Protest Petition Ordinances

18.140.080 Notices to surrounding property owners.

Unless otherwise specifically provided in this Chapter, whenever notice to surrounding property owners is required for consideration of an application, such notice shall be given as follows: The applicant shall mail all notices at least 20 days prior to the hearing, thus notifying such property owner of the opportunity to be heard. Notice shall be mailed to all owners of record of land within 200 feet of the property subject to the application. If the subject property is located adjacent to unincorporated property outside the City's limits, then the area of notification shall be extended to include all unincorporated land within 1000 feet of the subject property. For the purposes of this chapter, the phrase "adjacent to unincorporated property outside the City's limits" shall mean property which lies upon or touches (1) the City boundary line; or (2) a street or public way, railway or watercourse which lies upon the City boundary line. Such mailed notice shall be given by certified mail, return receipt requested, and shall be in letter form stating the time and place of the hearing, a general description of the proposal, the legal description and general street location of the property subject to the proposed change, and a statement explaining that the public may be heard at the public hearing. In cases of applications for which protest petitions may be submitted, the notice shall also contain a statement explaining that property owners required to be notified by this Section shall have the opportunity to submit a protest petition, in conformance with this ordinance, to be filed with the office of the City Clerk within 14 days after the conclusion of the public hearing. Newspaper clippings of the publication notices shall not be used for the mailed notice. Mailed notices shall be addressed to the owners of the property and not to mere occupants thereof. When the notice has been properly addressed and deposited in the mail, failure to receive mailed notice shall not invalidate any action taken on the application. Mailed notice may be waived provided that a verified statement specifically indicating such waiver is signed by all property owners within the notification area and filed with the Secretary of the Planning Commission, or the Board of Zoning Appeals, as the case may be, at least two business days prior to the hearing. Prior to the public hearing, the applicant shall file with the Secretary of the Planning Commission, or the Board of Zoning Appeals, as the case may be, the returned receipts from the certified mailings and an affidavit stating the names and addresses of the persons to whom notice was sent; failure to submit the affidavit prior to the hearing may result in a continuance of the hearing.

18.140.150 Consideration of rezonings and special use permits.

A.

Public hearing required. Consideration of all applications for rezoning or a special use permit shall require a public hearing before the Planning Commission, with publication notice and notice to surrounding property owners as required by Sections 18.140.070 and 18.140.080, respectively.

B. Procedures.

Except as hereinafter provided, the procedures for Planning Commission and Governing Body consideration of rezoning or special use permit applications shall conform to the procedures set forth in Section 18.140.120 for zoning text amendments. Prior to submission of the application to the Planning Commission, City staff shall determine whether dedication of right-of-way will be required pursuant to the provisions of Chapter 18.400. The Governing Body shall not take action on an original recommendation of the Planning Commission unless the time for filing the protest petition as provided in subsection C of this section has elapsed. Provided, however, that where the right to file a protest petition has been waived in a verified statement signed by all property owners holding such right, the Governing Body may consider the recommendation at any time.

C. Protest petitions.

1. A protest against any rezoning or a special use permit application shall be filed in the office of the City Clerk not later than the end of the business day (5:00 p.m.) on the 14th day following the date of the conclusion of the Planning Commission's public hearing held pursuant to the publication notice. In order to be considered a "valid" protest, a protest petition must be timely filed and duly signed and verified by the owners of record of 20% or more of the property subject to the application or by the owners of record of 20% of the total area, excepting public streets and ways, required to be notified by Section 18.140.080. Verification of the genuineness and correctness of the signatures on the protest petition, either individually or collectively, shall be made by a person who has signed the protest petition.

2. The 14-day period for filing the protest petition shall begin with the day following the conclusion of the public hearing before the Planning Commission and shall end at 5:00 p.m. on the 14th calendar day thereafter. For purposes of calculating the 14-day period, weekends and holidays shall be counted. Provided, however, if the filing deadline falls on a weekend, holiday or other non-business day for City offices, then the filing deadline shall be at 5:00 p.m. on the next regular business day.

3. Once a valid protest petition has been filed with the City, it may not be withdrawn unless every person eligible to sign the protest signs a verified affidavit which states and fully explains the rights being waived by the withdrawal of the protest petition. Such affidavits of withdrawal must be filed with the City Clerk on or before the last regular business day preceding the Governing Body meeting for which the protest applies. For purposes of withdrawal, signatures shall not be required of the City where City-owned property lies within the protest area or of entities controlling rights-of-way or utility easements.

D. Adoption where protest filed.

Where a valid protest petition has been filed, an ordinance approving the rezoning or special use permit application shall not be passed except by the affirmative vote of ten (10) or more members of the Governing Body. [return to top]