OVERLAND PARK CITY COUNCIL MEETING. February 5, 2001

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1 OVERLAND PARK CITY COUNCIL MEETING February 5, 2001 Mayor Ed Eilert called the Overland Park City Council meeting to order at 7:40 p.m. The following members were present, constituting a quorum: Mr. Greg L. Musil, Council President; Mr. Neil S. Sader; Mr. George Kandt; Dr. Jack Halligan; Mr. Byron C. Loudon; Mr. Michael J. Lally; Mr. Thomas C. Tim Owens; Dr. Kris Kobach; Mr. Carl R. Gerlach; and Mr. David G. Belpedio. Also present were: Mr. John M. Nachbar, City Manager; Mr. Bob Watson, City Attorney; Mr. Bob Jones, Director of Human Resources; Mr. James Cox, Director of Parks and Recreation; Mrs. Kristy Stallings, Director of Finance, Budget and Administration; Mr. John Douglass, Police Chief; Mr. Bart Budetti, Senior Assistant City Attorney; Mr. Doug Brown, City Engineer; Mr. Brian Shields, City Traffic Engineer; Ms. Michelle Mendoza, Assistant City Manager; Ms. Lori Knadle, Assistant City Manager; Ms. Gena Schallehn, Budget Manager; Mr. Sean Reilly, Manager, Communications; Mr. Mark Stuecheli, Senior Transportation Planner; Mr. Bob Lindeblad, Administrator, Current Planning; Mr. Tom Lance, Planning Commissioner; Mr. Steve Baska, Overland Park Sun; and Ms. Pamela Blaszyk, Senior Recording Secretary. Approximately 175 persons were in the audience. PLEDGE OF ALLEGIANCE Mayor Eilert led the audience in the Pledge of Allegiance. Mayor Eilert recognized members of Boy Scout Troop Nos. 92, sponsored by the Church of the Resurrection; 396, sponsored by the Church of the Nativity; 786, sponsored by the Church of Jesus Christ of the Latter Day Saints; 425, sponsored by Heritage Methodist Church; 222, sponsored by the Presbyterian Church of Stanley; 387, sponsored by Rolling Hills Presbyterian Church; and 189, sponsored by Countryside Christian Church. Mayor Eilert also recognized students from the American Politics class at Baker University and participants of the Leadership in Overland Park class. PUBLIC HEARING: CAPITAL IMPROVEMENTS PROGRAM Budget Manager Gena Schallehn presented the Capital Improvements Program (CIP) for a public hearing. She noted that the CIP is identical to the CIP that was presented to the Committee of the Whole during their January 8, 2001, meeting with one change. Funding for project No. SR-0025, which is the 2001 Residential Streets Program, has been increased by $1,018,000. This includes a $545,000 addition in General Operating funds to offset unrealized CARS funds and a $473,000 addition from the Special Street Fund to allow the inclusion of Woodward, from Merriam Drive to 47th Street, in the 2001 Residential Street Program. The $473,000 was recommended by the Public Works Committee at their January 24, 2001, meeting and will be discussed further during this Council meeting. The CIP, as presented, generates an ending cash position of 13.3 percent. Any recommendations or changes resulting from tonight s public hearing will be incorporated into the CIP.

2 Page 2 Staff requested that the City Council adoption of the CIP be scheduled for the February 12, 2001, City Council meeting. Mayor Eilert explained that the City s budgetary process includes two broad categories. They are working on the budget for the year 2002, which must be certified to the state by August The first part of the budget is the CIP budget, or the portion of the budget used for the City s infrastructure. The information that is provided during the public hearing will be considered next week when the Council adopts that specific budget. In May, the Council will begin their annual review of the operating portion of the budget. A public hearing will be scheduled. Final action to bring both budgets together will be taken in July for certification to the state in August. All financial projections are done on a five-year forward basis. The budget is finalized for the next current year, which is the year 2002, and the following four years in the budget are used as guidelines and indicators of where the money will be spent. A projection of revenue sources is also a part of the consideration of the operating budget. Mayor Eilert opened the public hearing on the Capital Improvements Program. As no one wished to speak, the hearing was closed. Mayor Eilert explained that the Council would make a decision on the final recommendation for the CIP at the February 12, 2001, Council meeting. MAYOR ED EILERT REPORT FROM THE COMMITTEE-OF-THE-WHOLE MEETING HELD AT 6:45 P.M. ON FEBRUARY 5, 2001 Regarding an amendment to the City Manager relocation agreement. Mr. Greg L. Musil reported that the Committee of the Whole met earlier in the evening and unanimously recommended to the Council the approval of Amendment No. 1 to the Relocation Agreement between the City of Overland Park and City Manager John Nachbar, to increase the allocation for relocation expenses by the gross amount of $5, Mr. Musil moved for Amendment No. 1 to the relocation agreement with Mr. Nachbar, increasing the allocation provided for relocation expense by the gross amount of $5, The motion was seconded by Mr. Michael J. Lally, and carried with a vote of 10 to 0. CITY MANAGER JOHN M. NACHBAR No report. CONSENT AGENDA: FINANCE, ADMINISTRATION AND ECONOMIC DEVELOPMENT STAFF CONSENT ITEMS: CONFIRMATION OF INVESTMENTS Confirming investments in the total amount of $20,000,000 in certificates of deposit.

3 Page 3 EXPENDITURE ORDINANCE NO. 1B Outlining the expenditures from the General Operating Fund for January 4 through January 17, CAPITAL PROJECTS EXPENDITURE ORDINANCE NO. 1D Outlining the expenditures from the Capital Projects Funds for January 18 through January 24, CAPITAL PROJECTS EXPENDITURE ORDINANCE NO. 1E Outlining the expenditures from the Capital Projects Funds for January 25 through January 31, APPLICATION FOR RENEWAL OF DRINKING ESTABLISHMENT LICENSE RT KCMO, d/b/a Ruby Tuesday, 9707 Quivira Road, Michael F. Newman, manager. APPLICATIONS FOR RENEWAL OF CEREAL MALT BEVERAGE LICENSES: Liway, Inc., d/b/a George s Pizza, 8435 W. 95th Street, Larry Thoennes, manager. Wild Oats Markets, Inc., d/b/a Wild Oats Market, 6621 W. 119th Street, Jerry Wayne Wright, manager. COMMUNITY DEVELOPMENT STAFF CONSENT ITEMS: AGREEMENT LionsGate Golf Developers, L.L.C., for Right-of-Way Maintenance Agreement in the subdivision, The Links at LionsGate, 1st Plat, vicinity of Lamar Avenue, 135th through 143rd Streets. AGREEMENT Forest Glen Development Company, L.L.C., for Right-of-Way Maintenance Agreement in the subdivision, Forest Glen, 2nd Plat, vicinity of 135th Street and Pflumm. PUBLIC SAFETY STAFF CONSENT ITEMS: APPLICATIONS FOR RENEWAL OF MASSAGE THERAPY BUSINESS LICENSES: PUBLIC WORKS Beach Club Tanning Company, 8809 W. 95th Street, Jennifer Bahr, applicant. Dales Athletic Club, W. 88th Street, Jeff Wiard, applicant. Sports Rehabilitation and Physical Therapy Association, 6362 College Boulevard, Craig Klos, applicant. COMMITTEE CONSENT ITEMS:

4 Page 4 WOODWARD, MERRIAM DRIVE TO 47TH STREET Including this project in the Residential Street Program with design in 2001, construction in 2002, and funding from the Special Street Improvement Fund. TEMPORARY TRAFFIC SIGNAL 143rd Street and Metcalf Not building the temporary traffic signal at 143rd Street and Metcalf, but keeping the current four-way stop and installing a permanent traffic signal with the Metcalf Avenue reconstruction in the spring of DESIGNATION OF PROJECT MANAGEMENT, WAIVER OF CONSULTANT SELECTION PROCESS, AND AGREEMENT AUTHORIZATION Indian Creek Watershed Study a) Authorizing the City to act as the watershed study manager and contracting agency for the watershed study consultants; b) Authorizing the City to negotiate a contract for the hydrology component of the study directly with Dr. Bruce McEnroe of the University of Kansas; c) Authorizing negotiation of an interlocal agreement with Johnson County to be reimbursed for 100 percent of all contract and staff expenses for this study; d) Waiving the normal selection process for the primary watershed study consultant and, instead, forming a committee made up of representatives of each of the cities participating in the watershed study, as well as the Johnson County SMAC program. ORDINANCE NO. BWL-2286 Bridge Weight Limits Adopting the staff recommended changes to OPMC including Standard Operating Procedure No. 32 for the posting of load limits for City-owned bridges. WORK MANAGEMENT SYSTEM Authorizing negotiation of agreement with GBA MasterSeries, Inc., at a cost of $250,000, to purchase software and programming services related to implementing a department wide Work Management System within the Public Works Department. The project is to be funded from the Public Works Operating Budget. TRAFFIC MANAGEMENT PLAN 2002 Residential Street Program, Strang Line Neighborhood, 75th Street to 79th Street, approving the voting process for signing the Traffic Management Plan petition with one vote per household or residential dwelling unit by either the occupant or tenant of the property. STAFF CONSENT ITEMS: ACCEPTANCE OF DEED OF DEDICATION Plaza Gardens South of Overland Park, Inc., concerning property at the northwest corner of 143rd Street and Metcalf. ACCEPTANCE OF PERMANENT DRAINAGE EASEMENT Carl & Josephine Privitera concerning property at the northwest corner of 119th Street and U.S. 169 (Rosana Square). ACCEPTANCE OF PERMANENT DRAINAGE EASEMENT LionsGate Golf Developers, L.L.C., concerning property at 143rd Street and Lamar. ACCEPTANCE OF PERMANENT MAINTENANCE ACCESS EASEMENT Glenwood Metcalf, L.L.C., concerning property at 91st Street and Metcalf.

5 Page 5 ACCEPTANCE OF DOCUMENTS Concerning property in the 2000 CDBG Residential Street Program (Hardy, 51st Street to 52nd Street; and 51st Street, Hardy to Lowell). Scott & Kathleen Pollard (tract C8) Temporary Construction Easement William Finnerty (tract C9) Utility Easement & Temporary Construction Easement James & Sara McBee (tract D4) Temporary Construction Easement Brent Foster (tract C11) Utility Easement & Temporary Construction Easement Willard King (tract D6) Temporary Construction Easement Esther Jones (tract C15) Utility Easement & Temporary Construction Easement Michael & Lisa Parsons (tract C19A) Temporary Construction Easement Dale Lee (tract D2) Temporary Construction Easement Robert & Linda Snook (tract C13) Utility Easement & Temporary Construction Easement Jane Landreneau (tract D7) Temporary Construction Easement James Kearney (tract C9A) Temporary Construction Easement James Wilder, Jr. (tract C11A) Utility Easement & Temporary Construction Easement ACCEPTANCE OF DOCUMENTS Concerning property in the 2001 Residential Street Program Part 1 (Conser south of 47th Street; Craig Lane, Merriam Drive to Goodman; Foster, 47th Street to Merriam Drive; Goodman, Merriam Drive to 47th Street; Goodman, 54th Terrace to City limits; Hadley, Merriam Drive to 47th Street; Mackey north of 54th Terrace; Newton north of 52nd Street; Riley, 47th Street to Merriam Drive; 47th Street, Hadley to east of Goodman; 47th Street, west of Conser to Merriam Drive; and 52nd Street, Newton to Conser). Joel Hughes (tract L13) Temporary Construction Easement M. Henrik Andersen & Susanne Andersen (tract L10) Utility Easement & Temporary Construction Easement M. Henrik Andersen & Susanne Andersen (tract L11) Utility Easement & Temporary Construction Easement Stone Ridge Apartments (tract F12) Deed of Dedication & Temporary Construction Easement Henry & June Specht (tract E3) Temporary Construction Easement Reva Adams & Linda Scott (tract C6) Temporary Construction Easement

6 Page 6 James Stanley (tract F10) Deed of Dedication, Utility Easement, & Temporary Construction Easement Harry Jenks, Jr. & Paulette Jenks (tract F3) Temporary Construction Easement James & Carol Stewart (tract F17) Temporary Construction Easement Gary & Cathy Borror (tract L4) Utility Easement & Temporary Construction Easement Sam Cole & Sara Krumme-Cole (tract A6) Temporary Construction Easement Curtis & Lori Crawford (tract F6) Utility Easement & Temporary Construction Easement ACCEPTANCE OF DOCUMENTS Concerning property in the 2001 Residential Street Program Part 2 (Benson, 85th to Elmhurst; Eby, 85th to Elmhurst; Elmhurst, England to Antioch; England, 85th to 87th; Grandview, 85th to Elmhurst; Grandview Lane, 85th to Elmhurst; Grandview Lane, Santa Fe to Elmhurst; Hayes, 85th to 87th; and Kessler, 85th to 87th). Thomas Padilla & Mary Camacho-Padilla (tract 31) Deed of Dedication & Temporary Construction Easement Sant & Harbans Chawla (tracts 3, 7, 11, 12, 25, 48, 72, 76, and 89) Temporary Construction Easements The motion to approve the Consent Agenda was moved by Mr. Byron C. Loudon and seconded by Mr. Musil. The motion carried with a roll-call vote of 10 to 0. REGULAR AGENDA: FINANCE, ADMINISTRATION AND ECONOMIC DEVELOPMENT COMMITTEE REPORT: Neil S. Sader, Chairman REPORT FROM THE SPECIAL FINANCE, ADMINISTRATION AND ECONOMIC DEVELOPMENT COMMITTEE MEETING HELD AT 7 P.M. ON FEBRUARY 5, 2001: CHARTER ORDINANCE NO. SEVENTY-SIX Changing City elections from partisan to nonpartisan and subjecting the Charter Ordinance to a vote. CHARTER ORDINANCE NO. SEVENTY-SEVEN Adding a Sixth Ward in the City and subjecting the Charter Ordinance to a vote. Mr. Neil S. Sader reported that earlier in the evening the Finance, Administration and Economic Development Committee had a special meeting. The Committee voted to recommend that the Council adopt Charter Ordinance No. Seventy-Six, regarding the changing of City elections from partisan to nonpartisan and subjecting the charter ordinance to a vote; and Charter Ordinance No. Seventy-Seven, as amended, regarding the addition of a sixth ward in the City and subjecting the charter ordinance to a vote. The Committee also voted to recommend at the City Council meeting of

7 Page 7 February 19, 2001, the passage of Ordinance Nos. E and E0-2284, along with the charter amendments, setting the date for the election. He explained that the purpose of the charter ordinances is to put to a public vote, at the April 3, 2001, election the proposition of changing City elections from partisan to nonpartisan elections and of adding a sixth ward in the City. Mr. Sader moved for the adoption of Charter Ordinance Nos. Seventy-Six and Seventy- Seven, as amended. The motion was seconded by Mr. Loudon. Mayor Eilert emphasized the fact that these changes would be subject to a public vote held in April. He asked what is the significance of February 19, City Attorney Bob Watson explained that if the charter ordinances are enacted, they have to be published twice. Following the second publication, the ordinances are passed that actually set the date of the election. The charter ordinances also indicate that they are subject to an election. The motion carried with a unanimous roll-call vote. STAFF REPORT: APPLICATIONS FOR RENEWAL OF CATERERS LICENSE AND DRINKING ESTABLISHMENT LICENSE CONTINGENT ON STATE LICENSE Nordstrom Restaurant Kansas, Inc., d/b/a Café Nordstrom, W. 95th Street, Anthony La Cerva, new manager. APPLICATIONS FOR RENEWAL OF DRINKING ESTABLISHMENT LICENSES CONTINGENT ON STATE LICENSES: Overland Park Wings, Inc., d/b/a Hooters, Metcalf, Thomas A. Pryor, manager. Rainforest Café, Inc., Kansas, d/b/a Rainforest Café, West 95th Street, Space 6, Wayne Stancil, manager. Director of Finance, Budget and Administration Kristy Stallings stated that staff recommended approval of the referenced applications, contingent upon receiving the state license. Mr. Musil moved for the approval of the referenced applications, contingent upon receipt of the state license. After a second by Mr. Loudon, the motion carried with a vote of 10 to 0. COMMUNITY DEVELOPMENT COMMITTEE REPORT: Michael J. Lally, Chairman No report. STAFF REPORT: AGREEMENT Metro K.C. Referees Association for basketball officiating services for January 2001 through December 2001.

8 Page 8 Director of Parks and Recreation Jim Cox indicated that staff was recommending the approval of the basketball officiating services agreement with Metro K.C. Referees Association for 2001, in the amount of $20 per official per game. He explained that the annual expenditure would be approximately $20,000. Mr. Lally moved for the approval of the agreement with Metro K.C. Referees Association. The motion was seconded by Mr. Loudon. Mayor Eilert clarified that the cost for officiating services is recovered through the program fees. The motion carried with a unanimous vote. UNSAFE STRUCTURE 5224 Goodman Lane. Report to the Governing Body No Administrator, Current Planning Bob Lindeblad presented Report to the Governing Body No and stated that staff recommended the delay of scheduling the required public hearing on the unsafe structure located at 5224 Goodman Lane until July 9, 2001, to allow the owner time to abate the unsafe condition. Mayor Eilert asked if staff anticipated that progress was being made on improving this structure. Mr. Lindeblad replied that a building permit has been issued for the reconstruction of the structure. Mr. Lally moved to accept Report to the Governing Body No and to delay the public hearing on the unsafe structure located at 5224 Goodman Lane until July 9, The motion was seconded by Mr. Loudon, and carried with a vote of 10 to 0. PUBLIC SAFETY COMMITTEE REPORT: Thomas C. Tim Owens, Chairman No report. STAFF REPORT: No report. PUBLIC WORKS COMMITTEE REPORT: Byron C. Loudon, Chairman No report. STAFF REPORT: BID TABULATIONS: Cargo Van

9 Page 9 City Engineer Doug Brown indicated that staff was recommending the acceptance of the second low bid from Roberts Auto Plaza, Inc., in the amount of $26,448 for one cargo van. He explained that the low bid did not meet the specifications for the van. Mr. Loudon moved for the acceptance of the second low bid from Roberts Auto Plaza, Inc., in the amount of $26,448, for one cargo van. The motion was seconded by Mr. Musil, and carried by a unanimous vote Sidewalk/Curb Repair Program Indefinite Delivery. Mr. Brown noted that staff recommended the acceptance of the low bid from K&B Construction, Inc., in the grand total amount of $87, He explained that the bid exceeds the engineer s estimate by approximately 4 percent, however, it is within the 7 percent guideline of Charter Ordinance No. 71. Mr. Loudon moved for the approval of the low bid from K&B Construction, Inc., for the 2001 Sidewalk/Curb Repair Program, indefinite delivery, in the grand total amount of $87, The motion was seconded by Mr. Lally, and carried with a vote of 10 to 0. CERTIFICATION OF REAL PROPERTY ACQUISITION PROCEDURES Kansas Department of Transportation for the 2000 Fiber Optic Interconnect Conduit Metcalf Avenue, 95th Street, 135th Street and 151st Street. Mr. Brown explained that the certification of real property acquisition procedures regards the 2000 Fiber Optic Interconnect Conduit. Staff recommended that the City Council authorize the Mayor to execute the Certification of Real Property Acquisition Procedures that relate to fiber optic interconnect conduit improvements along Metcalf, 95th Street, 135th Street, and 151st Street. According to Staff Comments, this certification is required by the Kansas Department of Transportation policy. Mr. Musil moved to authorize the Mayor to execute the Certification of Real Property Acquisition Procedures that relate to the optic interconnect conduit improvements along Metcalf, 95th Street, 135th Street, and 151st Street. The motion was seconded by Mr. Thomas C. Tim Owens, and carried with a vote of 10 to 0. RIGHT-OF-WAY CLEARANCE UTILITY ARRANGEMENT AUTHORITY AND METHOD PROCEDURES Kansas Department of Transportation for the 2000 Fiber Optic Interconnect Conduit Metcalf Avenue, 95th Street, 135th Street and 151st Street. Mr. Brown indicated that the staff recommendation was that the City Council authorize the Mayor to execute the Right-of-Way Clearance and Utility Arrangement Agreement between the City and the Kansas Department of Transportation related to the 2000 fiber optic interconnect conduit on Metcalf Avenue, 95th, 135th, and 151st Streets. As noted in Staff Comments, this agreement also certifies that the City will provide the required matching funds to supplement federal funding. Mr. Loudon moved to authorize the Mayor to execute the Right-of-Way Clearance and Utility Arrangement Agreement between the City and the Kansas Department of Transportation for the 2000 fiber optic interconnect conduit along Metcalf Avenue, 95th, 135th, and 151st Streets. The motion was seconded by Mr. David G. Belpedio and carried with a unanimous vote.

10 Page 10 SUPPLEMENTAL AGREEMENT NO. 1 Larkin Group Consulting Engineers, Inc., for additional design services on the 2001 Residential Street Program and 2000 CDBG Street Program. Mr. Brown stated that staff recommended the approval of Supplemental Agreement No. 1 with Larkin Group Consulting Engineers, Inc., for additional design services on the 2001 Residential Street Program and the 2000 CDBG Street Program. He explained that this supplemental agreement relates to the additional work, in the amount of $64,900, for the design of Woodward from Merriam Drive to 47th Street, and 47th Street, from Antioch to Woodward. Mr. Loudon moved for the approval of Supplemental Agreement No. 1 with Larkin Group Consulting Engineers, Inc., for additional design services on the 2001 Residential Street Program and 2000 CDBG Street Program, in the amount of $64,900. After a second by Mr. Belpedio, the motion carried with a vote of 10 to 0. RECOMMENDATIONS FROM THE PLANNING COMMISSION: PLANNING COMMISSION CONSENT AGENDA: SPECIAL EVENT PERMIT NO Santa Fe Drive. Special event permit approval requested to allow various events to occur in locations in Downtown Overland Park. Application made by Rhonda Barry, Downtown Overland Park Partnership. SPECIAL EVENT PERMIT NO West 135th Street. Special event permit approval requested to allow a banner at First Financial Bank. Application made by Daniel Meehan with First Financial Bank. REVISED PRELIMINARY PLAN APPROVAL U.S. Oncology Office Building, vicinity of 110th Street and Oakmont. Application made by Gastinger Walker Harden. The Planning Commission approved this item on January 8, 2001, by a vote of 11 to 0. REVISED PRELIMINARY PLAN APPROVAL Corporate Lakes, 6720 West 121st Street. Application made by Bozich Architects. The Planning Commission approved this item on January 8, 2001, by a vote of 11 to 0. FINAL PLAT NO Metcalf 159, vicinity of the northwest corner of 159th Street and Metcalf Avenue. Application made by Polsinelli, Shalton & Welte. The Planning Commission approved this item on January 8, 2001, by a vote of 11 to 0. SPECIAL USE PERMIT NO West 153rd Street. Special use permit requested for a three-year period of time to allow a martial arts fitness studio in an industrial district. This property is currently zoned IP-1J, Planned Light Industrial District, Johnson County. Application made by Jason Cohen. The Planning Commission approved this item on January 8, 2001, by a vote of 11 to 0. Ordinance No. Z SPECIAL USE PERMIT NO Metcalf Avenue. Special use permit requested for a one-year period of time to allow the operation of a dance

11 Page 11 club at Dick Clark s American Bandstand Restaurant. This property is currently zoned CP-2, Planned General Business District. Application made by Ryan Johnson. The Planning Commission approved this item on January 8, 2001, by a vote of 11 to 0. Ordinance No. Z Mr. Belpedio left the room at 8 p.m. Mr. Musil moved for the approval of the Consent Agenda, as recommended by staff. The motion was seconded by Mr. Owens. Mayor Eilert provided an opportunity for members of the audience to address the Council regarding Special Event Permit Nos and , and Special Use Permit Nos and There was no response. Mr. Lally asked if Final Plat No , Metcalf 159, vicinity of the northwest corner of 159th Street and Metcalf, is connected with the Revised Preliminary Plan for Wal-Mart. Mr. Lindeblad replied that since Final Plat No is just a one-lot plat on a 26-acre site, it will not make any difference what development may eventually be constructed on the plat. The motion carried with a roll-call vote of 9 to 0. PLANNING COMMISSION REGULAR AGENDA: RESIDENTIAL DAY-CARE PERMIT NO Floyd Street. Residential daycare permit renewal requested to allow the renewal of a residential day-care permit. Application made by Linda Sweany. Mr. Lindeblad indicated that staff was recommending the approval of Residential Day-Care Permit No for a five-year period of time. The applicant was not present. Mayor Eilert opened the public hearing regarding this item. There was no response and the hearing was closed. Mr. Musil moved to approve Residential Day-Care Permit No , for a five-year period of time, as recommended by staff. The motion was seconded by Dr. Kris Kobach, and carried with a vote of 9 to 0. UTILITY EASEMENT VACATION Vicinity of the southeast corner of 157th Street and Antioch Road. Approval of a utility easement vacation requested to allow the vacation of a utility easement. Application made by Phelps Engineering, Inc. Ordinance No. VAC (Continued from the January 8, 2001, Council meeting.) Mr. Lindeblad commented that staff was recommending approval of Ordinance No. VAC-2279, subject to stipulation a. Mayor Eilert opened the public hearing on this item. There was no response and the hearing was closed.

12 Page 12 Mr. Owens moved for the approval of Ordinance No. VAC 2279 (Utility Easement Vacation), vicinity of the southeast corner of 157th Street and Antioch Road. The motion was seconded by Mr. Musil, and carried with a roll-call vote of 9 to 0. At 8:05 p.m., Mr. Belpedio returned to the meeting. STREET VACATION Vicinity of 139th Street and Metcalf Avenue. Approval of a street vacation requested to allow 139th Street to be vacated east of Metcalf Avenue. Application made by The Spanos Corporation. Ordinance No. VAC (Continued from the January 8, 2001, Council meeting.) Mr. Lindeblad indicated that staff was recommending approval of Ordinance No. VAC-2278, with stipulation a. Mayor Eilert opened the public hearing on this item. As no one wished to speak, the hearing was closed. Mr. Musil moved for the approval of Ordinance No. VAC-2278 (Street Vacation), vicinity of 139th Street and Metcalf. After a second by Mr. Carl R. Gerlach, the motion carried with a roll-call vote of 10 to 0. STORM SEWER EASEMENT VACATION Vicinity of the northeast corner of 145th Street and Outlook. Approval of a storm sewer easement vacation requested to allow the vacation of a storm sewer. Application made by Synergy Development Alliance. Ordinance No. VAC As noted by Mr. Lindeblad, staff recommended approval of the storm sewer easement vacation, with no stipulations. Mayor Eilert opened the public hearing on this item. As no one came forward to speak, the hearing was closed. Dr. Jack Halligan moved for the approval of Ordinance No. VAC-2280 (Storm Sewer Easement Vacation), as recommended by staff. The motion was seconded by Mr. Sader, and carried with a roll-call vote of 10 to 0. SPECIAL USE PERMIT NO Santa Fe Drive. Special use permit requested for a five-year period of time to allow renewal of an arcade for ten games. This property is currently zoned CBD, Central Business District. Application made by Jay Hepler. The Planning Commission approved this item on January 8, 2001, by a vote of 9 to 2. Ordinance No. Z Mr. Lindeblad indicated that the applicant was requesting approval of a special use permit for a five-year period of time, to allow the operation of an arcade within The Pub on Santa Fe. During the Planning Commission public hearing on this item, two speakers indicated their opposition to the special use permit and stated their concern about the loitering and littering associated with the business as well as parking associated with this business in the downtown area. They expressed their opinion that the permit should not be extended because of those issues. The Planning Commission did not believe that the arcade designation with ten games caused those problems. However, the Commission agreed to recommend approval of the application

13 Page 13 for a one-year period of time and requested that the applicant meet with neighboring downtown business owners to further discuss issues of parking and littering. Mr. Lindeblad added that the applicant called earlier in the day to inform staff he would be unable to attend this meeting. Mayor Eilert opened the public hearing on this item. As no one wished to speak, the hearing was closed. Dr. Halligan moved for the approval of Ordinance No. Z-2850 (Special Use Permit No ), for a one-year period of time. The motion was seconded by Mr. Lally, and carried with a roll-call vote of 10 to 0. REVISED PRELIMINARY PLAN APPROVAL Wal-Mart, vicinity of the northwest corner of 159th Street and Metcalf Avenue. Application made by Polsinelli, Shalton & Welte. The Planning Commission approved this item on January 8, 2001, by a vote of 10 to 1. (A valid protest petition has been received). Mayor Eilert understood that during the last few days there were some telephone calls made that left the impression the calls were made on behalf of the City. The caller was encouraging citizens to come to this meeting and express approval of this request. The Mayor clarified that those calls were not made on behalf of the City. The City has never engaged in that kind of activity. Mayor Eilert received a letter from Mr. Karl E. Peterjohn, Director, Kansas Taxpayers Network, which is an organization that has been on record as being in favor of this request. Mayor Eilert read a portion of the letter which indicated Mr. Peterjohn was unable to attend this meeting. However, he clarified that KTN supporters have organized and spoken out with the use of mail and the telephone to exercise their First Amendment rights. An effort was made concerning tonight s meeting, including the use of the telephone, and these calls clearly identified the source as KTN. It would be inappropriate and by no means consistent with KTN s mission to make calls on behalf of anyone, especially a governing body. That has not happened before and did not happen in this case. Mr. Peterjohn concluded his letter by making a request to set the record straight and include the letter in the records. Mayor Eilert added that because the Governing Body previously heard and remanded this item back to the Planning Commission for additional discussion of the site plan, the applicant will be restricted to 30 minutes. A valid protest petition has been submitted regarding this item. Those who oppose this application will also have 30 minutes to speak. Mr. Lindeblad indicated that he would provide a brief overview to present the changes in the plan since the Council last considered this application. He noted that this application is a request for a revised preliminary development plan at the northwest corner of 159th Street and Metcalf. He referred to a map of the area and noted that the Future Development Plan designates commercial as the appropriate land use for the subject site. The subject site is currently zoned CP-2, Planned General Business District, and CP-1, Planned Restricted Business District, at the southwest corner of the site. This land was most recently rezoned in The CP-1 limits certain uses on 159th Street, which is across from single-family residences. When this property was zoned in a rectangular configuration in 1996, an accompanying development plan was approved as a part of that rezoning on 26 acres. That currently approved plan for

14 Page 14 this site depicts a 202,000-square-foot building oriented towards Metcalf. There are three pad sites towards the south end of the property and two pad sites towards the northern portion of the property. This application has been presented to revise the currently approved site plan. The initial application which the Council considered on October 30, 2000, depicted the building located on the northern portion of the tract and facing south towards 159th Street. The staff, the Planning Commission, and the City Council expressed concern that the plan was not consistent with the approved preliminary development plan, which oriented the buildings towards Metcalf. Mr. Lindeblad referred to two plans showing the difference between the previously proposed preliminary development plan and the current proposed development plan. One of the major concerns was that on the east side of Metcalf Avenue, there is property currently zoned for another shopping center oriented towards Metcalf. As Metcalf was the major orientation for the retail within these commercial districts, there was concern that by orienting the building on the revised plan to the south, that would not be consistent with the intent of the commercial corridor and also that would endanger potential additional commercial zoning along 159th Street. The City Council sent the application back to the Planning Commission at the request of the applicant. The applicant stated that they had an alternative site plan that they would like the Planning Commission to consider. The Council also indicated that additional information needed to be reviewed concerning the traffic and needed street improvements in the area as a result of this application. Therefore, the applicant submitted a revised site plan to the Planning Commission. He noted that the site plan was substantially changed with parking on the north, east, and south sides. The building orientation is also towards Metcalf. In comparing the proposed plan to the existing approved zoning plan, there is a similarity in the location of the major mass of the building, the parking areas, and the traffic circulation on the site. The main difference is that there are no pad sites on the revised plan, with the exception of a series of gas pumps proposed to be operated by Wal-Mart at the corner of 159th Street and Metcalf. The Planning Commission and staff reviewed the revised plan and noted that the proposed plan has 32,816 square feet less than the currently approved plan. The existing plan has a total of 237,000 square feet. The screening of the rear of the building and the loading docks will be accomplished by a number of retaining walls and a thick landscaping screen. The applicant has colored drawings of the building elevations. The Planning Commission found that the currently proposed plan met all of the City s Shopping Center Design Guidelines Staff recommended approval of the revised plan to the Planning Commission. The Planning Commission considered this application with the revised plan on January 8, Eight persons spoke during the public hearing. One individual indicated support for the proposed plan. The other individuals spoke in opposition to the plan stating concerns about traffic and the need for additional street improvements in the area, storm water drainage concerns, and incompatibility with the character of the neighborhood. The Planning Commission voted 10 to 1 to recommend approval of the revised plan with stipulations a through k. Mr. Lindeblad stated that Senior Transportation Planner Mark Stuecheli would give a summary regarding the revised traffic study which was completed following the revisions of the site plan. Mr. Stuecheli commented that there was a request for additional traffic information. The applicant had their traffic consultant do some additional work to provide more data. Regarding Table I in Staff Comments, Mr. Stuecheli noted that the current

15 Page 15 application includes the gas pumps mentioned earlier in the presentation. That increases the trip generation over what was predicted with the first proposal. On a daily basis, there is a slight increase in traffic compared to the existing proposal. In the morning peak hour, there was an increase previously, and there is still a slight increase in traffic during that time. Staff believed that during that time of day, the traffic from that site is not significant in that the current street system is adequate to handle the traffic volume. During the afternoon peak hour, as in the previous application, the volumes are less with this proposal. The primary reason for the decrease in traffic is that this plan contains 32,816 square feet less than the currently approved plan. The additional information the consultant considered included an analysis of the intersection of 159th Street and Metcalf. He noted that intersection was not included in the initial limited scope study. Table II in Staff Comments regards the analysis of this intersection. The analysis showed that there are no problems in the intersection operating at an acceptable level of service (LOS) D range with existing conditions and under the 2020 projections. The consultant also conducted counts in November to prepare the analysis, which includes traffic associated with the high school, which answers a question that was asked previously. The consultant was there during the peak traffic times counting the volumes. He expanded the counts to an hour to calculate the analysis, which is a conservative way of analyzing the impact of the project and the operation of the intersection. Mr. Stuecheli pointed out that when these counts were taken, and when other counts were taken last year, the project to improve 151st Street was under way and shut down the intersection of 151st Street and Nall. That had an impact of rerouting traffic to parallel routes. Two of the parallel routes were Metcalf and 159th Street. They have taken some counts to show that there was a significant increase last year over the previous year on those streets because of the closure of that major intersection. Even though that intersection was closed, when these counts were taken, the analysis still showed that it operated within an acceptable level of service. It was staff s opinion that with the opening of the roadway, the traffic volumes will be less than they were last summer. Another factor to consider regards the heavy southbound left-turn movement in the morning at 159th Street and Metcalf. A lot of that movement is associated with high school students attending Blue Valley High School. He noted that Blue Valley West High School is opening in the fall and an impact of that opening will be a reduction in the attendance at Blue Valley High School. That will also result in a rerouting of traffic so that the left-turn movement at 159th Street and Metcalf should be reduced substantially as a result of a student population reduction in Blue Valley High School and the rerouting of trips to Blue Valley West High School. On occasion, there are some queues that may extend to the end or beyond the left-turn lane during peak traffic times. However, in staff s opinion, that scenario will also be improved with the opening of the new high school. Mr. Stuecheli noted that there were several questions regarding the interchange proposed at 159th Street and U.S. 69 Highway. That interchange has been included in the City s Master Plan for over ten years. In 1989, the City and Johnson County collaborated on a study to look at the improvement of 159th Street, including the installation of an interchange. In 1999, the City took a fresh look at the interchange and determined that a different design was appropriate. That study was completed

16 Page 16 and has resulted in a detailed preliminary cost analysis and cost estimate for the interchange. At the same time period, the Kansas Department of Transportation (KDOT) was working on a major investment study regarding the U.S. 69 Highway corridor. They also identified that interchange as being a long-range improvement for U.S. 69 Highway. He indicated that the interchange is appropriate and will be needed in the future. During the study when they analyzed just the year 2020 projections, they assumed that the interchange was in place. At this point there is no definite deadline and no clear funding source for the project. However, funding can come from several different sources. In addition to state funds, federal funds are available and have been used in many cases for other interchanges in the City. The City also has other resources. Staff felt that when the Council determines the interchange is needed, the project will go forward. Staff was confident that the interchange would be improved within that 20-year period of time. The traffic consultant also looked at conditions on 159th Street, including the unimproved portion from Metcalf to Antioch and discovered, in checking City records, that there is not an accident problem in the section between the two intersections of Metcalf and Antioch. They also analyzed that it is in an acceptable condition for an unimproved roadway. There are some ditches that are significant. However, in most cases, the sight distance is good and the ditches are generally in good condition. The roadway is approximately 20 feet wide. This road is in a better condition than many other unimproved roadways. The additional traffic analysis that was conducted reinforces the earlier opinion that this intersection will operate satisfactorily, even after the shopping center is developed. He clarified that the plan was compared to the existing approved zoning on the site which has an additional 32,000 square feet of retail improvements. Mr. Loudon referred to Mr. Stuecheli s comment that the consultant reviewed the condition of 159th Street between Metcalf and Antioch. The consultant also looked at the road history and found there were no accidents along that section of roadway in the last three years. Through phone calls and letters he received, he was made aware that the stretch between Metcalf and U.S. 69 Highway is a common boundary between the City and Johnson County. Several comments indicated that the City s accident rates would only include accidents that occurred on the north side and not accidents that occurred on the south side. He understood that a significant number of accidents occurred in that area. He was also advised that the accident rate on the east side of Metcalf towards Blue Valley High School and the turning in movements were not reflected in the information. He asked if Mr. Stuecheli had an opportunity to look at the County records to determine if they were significant. Mr. Stuecheli replied that in many cases when the City conducts its accident analysis, they are able to obtain information from adjoining cities on the number of accidents. He explained that they collect the county information regarding intersection accidents. He could not verify that they also had the mid block accident data. Mr. Loudon asked if it was Mr. Stuecheli s opinion that the general condition of 159th Street between Metcalf and Antioch is acceptable. Mr. Stuecheli replied affirmatively. Mr. Owens stated that one resident called him to raise a question they had regarding some statistics that disagreed with the City on the previous traffic analysis that was conducted. He asked if staff had any discussions with the opponents to the proposal regarding their disagreements with the traffic analysis. Mr. Stuecheli replied that several months ago, early in the process, they met with several representatives of

17 Page 17 people who lived in the county. They also had discussions with a citizen who lives somewhere to the north of the subject site. He emphasized that the question is the assignment of trips from this project and where they would be going. The people that live to the north thought that all the trips would be going to the north on Metcalf. The people that live in the county thought that a higher percentage of people would be going to and from the south down to the interchange at 167th Street, or possibly further south on Metcalf. Staff uses their best judgment to project what is likely to happen. There can be differences of opinion. Staff worked with the traffic consultant. Mr. Owens asked if Mr. Stuecheli has heard from any citizens since this item was remanded back to the Planning Commission. Mr. Stuecheli replied that he has not heard any questions about the latest study. Dr. Kobach asked about the anticipated differences in trip direction and traffic movements in the approved plan versus the proposed plan, and if those changes would increase safety risks. Mr. Stuecheli replied that staff would make the same assumptions about the availability of access with both plans. There would not be a significant difference between the two proposals in terms of the trip generation. Dr. Kobach commented that the constitutional question that arises in litigation about property rights is whether the landowner has a reasonable expectation, and what is that reasonable expectation. For example, if the Council would have approved a preliminary plan and zoning for a grocery store and then the applicant presented a revised plan for a movie theater, to what extent could the Governing Body indicate a preference for a grocery store and not a movie theater while still being mindful of property rights. Mr. Budetti replied that property rights are grounded in state law. A person has a right to a reasonable decision on their application that would be determined under applicable Kansas law. In terms of differences in store types for a land use decision, it is necessary to show a valid public or governmental purpose that will be achieved by the decision. Otherwise it becomes an arbitrary and capricious decision. In terms of this revised plan, there is no change in the type of use as they are still dealing with a retail type of use. From the perspective of Planning and Development Services staff, there does not appear to be any real difference in the configuration and layout between the approved and proposed plans. It would, therefore, be necessary to isolate the differences in the application and to determine whether there are sufficient negative impacts to justify the continued restriction of the property to the plan that has previously been approved. The other alternative is to determine that the prior 1996 rezoning was a mistake and the conditions are inappropriate for that type or scope of commercial development. The courts are not going to decree that just because the site was rezoned at one time there must be a commitment to forever continue the development at that level. There would be a heavier burden on the Governing Body at that point to justify and show why the original analysis was incorrect. Mr. Musil understood that the overall traffic associated with the proposed application is less than the traffic associated with the approved plan. Yet the development of the approved plan has a C LOS rating for the intersection of 159th Street and Metcalf and the new project has a D LOS rating in Table II. Mr. Stuecheli replied that Table II regards the existing conditions, the existing conditions with the proposed development traffic, and the 2020 conditions with this project. Mr. Musil asked what road improvements in the vicinity of the subject site are assumed in Table II with the 2020 conditions. Mr. Stuecheli replied that the assumption is that the major thoroughfares are four-lane roadways including 159th Street. Metcalf is already improved north of

18 Page th Street. It would include the assumption that Metcalf would be improved to the south to a four-lane roadway. It assumes the interchange at 159th Street and U.S. 69 Highway is in place. Mr. Musil clarified that the Master Plan study that occurred in 1995 created this commercial Master Plan area. Mr. Stuecheli explained that the study expanded the commercial area beyond what had been approved in Mr. Musil asked how many square feet of commercial space could have legally been developed on this tract, under the existing land use intensity policy, when the commercial area was expanded in Mr. Stuecheli replied that shopping centers are usually not developed to the maximum LUI because of their parking requirements. He assumed that the LUI was slightly below the maximum square footage that would be allowed. Mr. Lindeblad added that he would calculate the land use intensity that could be allowed on this site and report that data to the Council later in the meeting. Mr. Musil replied that he wanted to know what were the reasonable expectations for the LUI under the City s policy when the Master Plan study was completed. Mr. Musil noted that many neighbors have disagreed with the suggestion that a super center draws less traffic than a similar size of development with multi-tenant users. He asked why the traffic engineers have come to a different conclusion. Mr. Stuecheli explained that the conclusions have been made according to actual counts that have been taken. There is a specific category for traffic generated by super centers. Data for this category has been gathered for the last several years. There is also a considerable amount of data regarding traffic associated with shopping centers. He noted that the proposed development has 32,000 square feet less than the approved plan. The trip generation rate is slightly lower for the super center. From a common sense approach, a standard shopping center does not have one big user but has pad sites which are generally high traffic generators. Mr. Musil asked for a definition of super centers from a traffic engineering standpoint. Mr. Stuecheli recalled that super centers are defined as a combined grocery and discount store. Mr. Musil asked what are the options a City government has in terms of hours of operation of a retail store that does not sell or serve alcohol. Mr. Budetti replied that the City does not regulate the hours of operation. Nor are the hours of operation a relevant issue to include when considering land use approvals under City regulations. The City has no control over that aspect of the operation. Mr. Musil asked what streets will be used as truck routes to service Wal-Mart. Mr. Stuecheli replied that Metcalf is a truck route. The county does not have any truck routes. He did not have information on 159th Street. He assumed the applicant could tell them what the anticipated truck route would be. He assumed that they would predominantly use Metcalf. Mr. Budetti added that the truck route regulations only pertain to pass through trucks. They do not prohibit the use of a route to reach a destination. In response to a previous question asked about land use intensity allowed on the subject site, Mr. Lindeblad stated that the 28-acre site of gross land area, which includes the area to the centerline of public streets, would allow approximately 256,000 square feet under the City s land use intensity system. Mr. Belpedio asked what is the biggest retail development in the City under one roof. Mr. Lindeblad replied that Target is approximately 186,000 square feet. Mr. Belpedio asked if this piece of ground has been conceptualized as a neighborhood shopping center. Mr. Lindeblad replied that the plan that was approved in 1996 for