OVERLAND PARK PLANNING COMMISSION MEETING. February 25, 2002

Transcription

1 OVERLAND PARK PLANNING COMMISSION MEETING February 25, 2002 The Overland Park Planning Commission meeting was called to order at 1:35 p.m. by Mr. Ed Reitzes, Vice Chairman. The following members were present, constituting a quorum: Mr. Tex New; Mr. David White; Mr. Richard Collins; Mrs. Nancy Diebel; Mr. David Hill; Ms. Sharon Holsinger and Mr. Bob Sanders. Mr. Tom Lance arrived at 1:45 p.m. Chairman Charles Hunter and Mrs. Charlene Conrad were absent. Also present were: Mr. Bart Budetti, Senior Assistant City Attorney; Mr. Bob Lindeblad, Current Planning Administrator; Mrs. Leslie Karr, Senior Planner; Mr. Mark Stuecheli, Senior Transportation Planner; Mr. Keith Gooch, Mr. Bryan Bear, and Mr. Dave Dalecky, Planners; Mr. Brad Munford, Planning Technician; Mr. John Stone, Park Planner; Mr. Sandy Queen, Manager, Golf Course Operation; Mr. Terry Goodman, Councilmember; Mr. Jim Cox, Director of Parks and Recreation; Mr. Greg Ruether, Manager, Parks and Forestry; Ms. Cait Purinton, Kansas City Star; and Ms. Nancee Ellis, Recording Secretary. Approximately 35 persons were in the audience. APPROVAL OF MINUTES January 14, 2002 and January 28, (Approved) Mr. Tex New moved for the approval of the January 14th minutes as written. The motion was seconded by Mrs. Nancy Diebel, and passed by a 7 to 0 to 1 vote, including the vote of Vice Chairman Ed Reitzes, who voted on all agenda items. Mr. David Hill abstained. Mr. New moved for the approval of the January 28th minutes as written. After a second by Mrs. Diebel, the motion passed by an 8 to 0 vote. CONSENT AGENDA: (Approved items A, B, D, F, G, H, I; forwarded item C to the Site Plan Review Committee for further review; and item E was withdrawn.) A. REVISED PRELIMINARY PLAN APPROVAL CHILDREN S MERCY HOSPITAL West 110th Street. Application made by ACI/Boland, Inc. B. FINAL DEVELOPMENT PLAN APPROVAL CHILDREN S MERCY HOSPITAL 5808 West 110th Street. Application made by ACI/Boland, Inc. C. FINAL DEVELOPMENT PLAN APPROVAL ASH GROVE CEMENT Cody Street. Application made by Shafer, Kline & Warren, Inc.

2 Page 2 D. FINAL DEVELOPMENT PLAN APPROVAL BROOKRIDGE GOLF & COUNTRY CLUB PARKING LOT 8223 West 103rd Street. Application made by Kaw Valley Engineering, Inc. E. FINAL DEVELOPMENT PLAN APPROVAL O CHARLEY S RESTAURANT Vicinity of the southwest corner of 91st Street and Metcalf. Application made by Edwards & Hotchkiss Architects, P.A. F. FINAL PLAT NO FAIRWAY WOODS NORTH VILLAS TWENTY-EIGHTH AND TWENTY-NINTH PLATS Vicinity of 123rd and Long Street. Application made by Tom French Builders, Inc. G. FINAL PLAT NO HIGHLAND VILLAGE PATIO HOMES SEVENTY-THIRD AND SEVENTY-FOURTH PLATS Vicinity of 127th Street and Pflumm Road. Application made by Highland Village Developers, L.L.C. H. FINAL PLAT NO FAIRWAY WOODS NORTH VILLAS THIRTIETH PLAT Long Street. Application made by Myer Construction Company, Inc. I. SIGN CRITERIA METCALF 103 OFFICE PARK Metcalf Avenue. Application made by Calsino, Inc. Mr. New asked that item C be removed for separate discussion. Mr. David White moved for the approval of consent agenda items A, B, D, F, G, H, and I as stipulated. Mr. Bob Sanders seconded the motion, which passed by an 8 to 0 vote. With regard to item C, Mr. New commented that this item has been before the Site Plan Review Committee a number of times, however, the Committee still has some questions regarding the Americans with Disability Act ( ADA) parking and had requested that some of it be moved to the front of the building. Planner Keith Gooch said he did forward the Site Plan Review Committee s comments onto the applicant, noting there may have been some miscommunication between the Committee and staff. Mr. Gooch said he was under the impression that this issue had been addressed; however, he said the applicant is present today to answer any questions. Mrs. Diebel asked if the environmental impacts of this project were considered on the parking as planned or was future parking included. Mr. Gooch replied that Engineering Services looked at both scenarios. Mr. John Yacos, applicant, said he was disappointed that this final plan was removed from the consent agenda. He said Ash Grove Cement has appeared three times before the Site Plan Review Committee, and they thought everything had been worked out. He appreciated the neighbors who were in attendance, noting that they have attended all of the many meetings. Mr. Yacos stated that throughout this five-month City approval process, the applicant has listened to the neighbors, the staff, and the Planning Commission. It was the applicant s understanding that they had evaluated all the suggestions and agreed to the majority of them.

3 Page 3 With regard to accessible parking, Mr. Yacos advised that throughout the process, Commissioners have raised the issue of accessible parking. He said the City s Unified Development Ordinance (UDO) does not specifically require accessible parking to head in adjacent to the building, nor does the International Building Code. Reading from the ADA ordinance, Mr. Yacos read: Accessible parking spaces shall be located on the shortest accessible route of travel from adjacent parking to an accessible building entrance. Another concern the applicant has relates to parking immediately adjacent to or under a building, with regard to the recent terrorist incidents. He referred to the Oklahoma City bombing and the September 11th attack in New York City, which Mr. Yacos said is now a concern to many building owners. He said Ash Grove spoke with their insurance carrier about this, and he had a letter from the insurance company who shared this concern. He said the applicant could not build out 3.8 parking spaces per thousand as required by the City s codes due to the movement of the parking lot. Ms. Georgia Gavito, BNIM, Grandview, Suite 150, showed Commissioners a current drawing of the proposed ADA parking spaces, with all eight parking spaces straight out in front of the building across the median and crossing the driveway. She pointed out that a change was made from six handicap spaces to eight because the UDO is less strict than ADA. Ms. Gavito said consideration had been given to putting all eight spaces to the west of the door. In order to achieve that, the main drive was moved out 27 feet, which equaled three parking spaces. She said this also resulted in a total loss of 33 parking spaces, but eight spaces are given for handicapped. She pointed to an area on the map where there could be four extra parking spaces where handicapped parking was shown before. With removal of the aisles, there could be room for two extra spaces on each side. Ms. Gavito pointed to the map where 20-foot medians were proposed with the intent of planting trees as a visual buffer between parking and the building. Although using this space for parking instead would allow another nine spaces, the plan would still be 12 spaces short to achieve the 3.8 per thousand square foot. Mr. Tom Smith, Shafer, Kline & Warren, said he assisted Ms. Gavito in looking at this and she did the drawings. It was his understanding that more of the ADA spaces were needed closer to the building, and the layout shown today does not accomplish that. Referring to the eight spaces west of the sidewalk, Mr. Smith said taking the average distance from the center of those to the average distance of the eight spaces that are due north of the front door, the distance is similar meaning less than a five-foot difference. He believed adequate grading could be accomplished in both locations. Consideration was given to splitting the spaces east and west of the sidewalk, but in going from the sidewalk down to a truck dock area, it is not possible to get the ADA requirements for grading. Therefore, all eight spaces were placed on the west side. Mr. Smith stated that with an ultimate build out for this project, 12 parking spaces would be lost and the applicant could not get the 3.8 parking spaces per thousand requirement necessary for the building square footage. After looking at grades, location and proximity, Mr. Smith believed the initial submission to the City, with the modification of six to eight spaces for ADA would be the preferable plan and most beneficial for the people using those spaces. Mr. New recalled that the applicant was going to give staff some examples of where the pre-cast panels were used before and asked if that had been done. Ms. Gavito stated that the pre-cast had not been used anywhere before, noting that it was actually a

4 Page 4 special mix for Ash Grove. There are no examples because it is unique. Mr. Yacos explained that on all projects, a small sample is taken from which a mockup is built before the pre-cast is commissioned going into production. This helps ensure that the windows, the glazing, and caulking all match. He invited Mr. New to come out and look at that when it is done. Referring to the drive that goes in from the street, Mr. Tom Lance noted that the tangent point at the curb line is beyond the applicant s property line, asking Senior Transportation Planner Mark Stuecheli if that was acceptable. Mr. Stuecheli said that was no problem as long as it is in the right-of-way. Mr. Lance commented that at one of the Site Plan Review Committee meetings a stepped brick shelf was discussed to ensure that the concrete would not be exposed above grade. He recalled that someone had suggested maybe it could be covered with landscaping; however, the landscaping plan does not indicate that. Mr. Yacos said he would ask Ms. Gavito to address that, adding that it had either been faced with brick or colored concrete. Ms. Gavito stated that it is intended to have a stepped foundation with a brick ledge to minimize that. No greenery is shown around the perimeter of the building, and she said the client is interested in doing much more than is required by the City. Mr. Lance asked if the concrete brick shelf could be placed below grade. Ms. Gavito said that is not a situation to get into from an architectural standpoint because it is preferred to have the weep holes be above grade. Mr. Lance said they would be above grade if the brick shelf is in low. Ms. Gavito said she would like to give more study to that idea. Mr. Lance apologized for arriving late and missing the applicant s comments regarding ADA parking, and asked if he could hear a summary. Mr. Yacos stated that his evaluation to Mr. Lance s suggestion has resulted in the following conclusion: The City s UDO and the International Building Code (IBC) do not specifically require that accessible parking be head-in adjacent to the building, and ADA does not require it. With regard to security, Mr. Yacos said since the Oklahoma City bombing at the federal building and the September 11th tragedy, security adjacent or under buildings has been re-evaluated by building owners throughout the country. The client received a letter from their insurance company which indicates they prefer not to have parking adjacent to the building. Mr. Yacos stated that with adjacent head-in parking, there would be a shortage of 12 parking spaces in the build-out. He said the parking as shown in the exhibit submitted is what the applicant is proposing because of the reasons he outlined. Evaluating all the concerns, Mr. Yacos said the applicant believed they are proposing the best location and the shortest and most accessible route as it relates to the parking scheme. It also allows the applicant to build out 3.8 parking spaces per thousand at the ultimate build out. Mr. Lance was still concerned about the location of the ADA parking spaces, adding that he could not support this proposal unless that was changed. He was also concerned about the percentage of brick used. Mr. Yacos assured Mr. Lance that the applicant was equally concerned about the ability of handicapped persons gaining easy access to the building. He pointed to a drawing of the parking configuration, adding that if parking was put in a closer location to the building, when the snow plow comes by, it will push snow up against that area creating more difficulties. With the plan proposed by the applicant, Mr. Yacos said the snowplow can do a clean quick sweep. He stressed that this will be a high traffic area used many times and salt and other materials will be used where people will cross. Regarding brick, Mr. Yacos

5 Page 5 advised that originally pre-cast was 31.9 percent and has now been reduced to 26.2 percent. It has changed from gray pre-cast to red aggregate which he showed to Commissioners. He said the red brick has been increased from 11 percent to 23.3 percent. These changes result in an increase of 112 percent in red brick, a reduction of pre-cast by 18 percent, and the pre-cast was changed to be a red aggregate precast. Mr. Yacos said the glazing is a 19 percent reduction, and the limestone has increased 35 percent. He said this shows the applicant has listened to the Commission s comments which has resulted in a better building. Mr. Lance said he felt uncomfortable with this brick count. He asked if the applicant included the retaining wall that would have a sign on it as part of the brick count. Ms. Gavito replied that the free-standing retaining wall is intended to be limestone which is included with the limestone number. Mr. Lance commented that this building is in an area that has brick on 90 to 95 percent of the elevations and asked if the brick could be increased to fit into the community of brick buildings. Mr. Yacos respected Mr. Lance s opinion, but believed the added red pre-cast fulfills the red color that the brick has. He has worked with the client, and this is the extent to which they want to go. He pointed out that the applicant is Ash Grove Cement, cement is their business, and they are a fine corporate citizen of Overland Park. He hoped Mr. Lance would reconsider his opinion regarding this matter. Mr. Lance asked what staff considered a minimum percentage of brick for this project. Mr. Gooch said the exact percentage would be difficult to determine right now. He believed staff would be looking more at the elevations to determine how it fits with the character of the surrounding buildings four of which are 100 percent brick. One building at College and Quivira does have some pre-cast on it. Mr. Lance asked if staff felt strongly about using brick, and Mr. Gooch said yes, adding this was not much different than commercial development whereby staff wants most of the buildings and materials to have a similar appearance which results in some continuity. Mr. Lance hoped to see more ADA parking next to the building, and he hoped to see more brick. On the east side where there is landscaping to protect the owner to the east, Mr. New said it appears that when the grading is done for the detention basin, all of that landscaping would be graded out. With regard to the detention basin that is located along the northeastern limits of this project and the landscaping along the east property line, Mr. Smith said there probably will be some landscaping adjacent to the basin, but in moving towards the property line the grading will be tied in. He explained if it is a common landscaping item, which is on the property line, it will not be disturbed. If it is back interior from the property line it will have to be re-vegetated. Mr. Smith said the trees north of the detention basin will not be disturbed with Phase 1 construction of the basin. Trees will be disturbed and displaced and replanted with the ultimate build out of the parking lot. Mr. Smith stated that grading would be done prior to landscaping being established. He advised that the east slope of the basin will be graded for Phase 1, and it will not be changed for Phase 2. The only part of the basin that changes with ultimate build out is the west limits of the basin.

6 Page 6 Referring to the plan showing the handicapped parking, Mr. White asked if there was a marked crosswalk that goes from the parking area to the building and if it would have a different surface material from the rest of the parking lot. Ms. Gavito said presently, the intent is to have an all-concrete parking lot, and the crosswalk would be marked with striping. Mr. New stated that he could not support this application because he believed there were too many things that need to be addressed especially the percentage of brick on the building in comparison with the other buildings nearby. Mr. Lance suggested that this item be continued in an effort to address some of the concerns that have been voiced which include the ADA parking next to the building, to view samples of the pre-cast and to increase the percentage of brick. Mr. White believed that another factor regarding the ADA parking location was not just the distance from the front door, but the fact that people who have mobility problems would have to negotiate traffic in a parking lot. With parking next to the building, these people would exit their cars and be immediately at a sidewalk without having to worry about traffic. Mr. White s concern was that the applicant s proposal would necessitate these people having to cross the main driveway which is where most of the traffic is going to be. With regard to the applicant s concerns about having parking too near the building, Mr. White doubted that Ash Grove Cement is a high terrorist target. Ms. Sharon Holsinger remarked that she could not support this application because of the ADA parking proposed by the applicant. She was concerned, as Mr. White pointed out, about people with mobility problems getting across the main driveway. She believed the sidewalks would be cleared if parking was next to the building. Mr. Lance stated that a perfect example of what he was talking about is what the City has done just outside the front door of City Hall where handicapped parking is located. Due to the division of opinion concerning handicapped parking, Mr. White moved to continue Final Development Plan Approval for Ash Grove Cement, Cody Street, and referred this item back to the Site Plan Review Committee for further review of the placement of handicap parking. Mr. Lance seconded the motion. Since this item is going back to the Site Plan Review Committee, Mr. Sanders asked that the Committee also review the amount of pre-cast and brick to provide better clarity on materials. The motion passed by a 9 to 0 vote. UNIFIED DEVELOPMENT ORDINANCE AMENDMENT NO. ZRR Amendments to Unified Development Ordinance Sections , , , , , , , , , , , , , and , to create new zoning districts and procedures in Downtown Overland Park. (Continued to the Planning Commission meeting of March 25, 2002, and remanded to the Ordinance Review Committee for further review.)

7 Page 7 Planner Bryan Bear advised that the City of Overland Park, who is the applicant, is requesting approval of amendments to the UDO relating to new zoning districts and procedures for downtown Overland Park. Mr. Bear advised that at the January 14, 2002, Planning Commission meeting, Commissioners authorized staff to prepare these amendments to the UDO in order to create new zoning districts and procedures for development within Downtown Overland Park. Currently, there are 16 zoning districts within downtown Overland Park, with each district having its own set of rules. Mr. Bear said many of the districts contain restrictive setback and parking regulations that, in many cases, discourage property owners from investing in building additions or making other improvements. He said most of the districts contain standards that are not reflective of the existing character in downtown Overland Park. Instead, the existing districts tend to encourage a more suburban development pattern found elsewhere in the City. Mr. Bear relayed that the distribution of the zoning districts are arranged in a somewhat fragmented pattern, making it difficult for a developer to assemble numerous parcels under one zoning classification for redevelopment. Mr. Bear stated that for these reasons, the Downtown Master Plan that was approved in May of 2001, recommended adopting a new set of zoning regulations specific for downtown Overland Park. In addition, the Master Plan indicated that the procedures that are in place for development projects in downtown Overland Park, act as somewhat of a disincentive to development in downtown. He said new, simplified procedures were recommended for approval of new projects. Mr. Bear relayed that five new zoning districts are proposed with this application. Each of the five districts is intended to represent an area of downtown with a somewhat different character. The districts are consistent with the way in which the Downtown Overland Park Master Plan was organized. He said each of the districts contain a set of rules that are intended to fit the existing development patterns with the district. For example, Mr. Bear noted that if the property within one of the districts is dominated by buildings with little or no setbacks from the street and little or no on-site parking, then the proposed zoning district for that area will not contain requirements for setbacks or parking. He said the proposed zoning districts should make the majority of the property within downtown conform to the new regulations. In addition, Mr. Bear said the districts should make it easier for landowners to make improvements or construct new buildings or building additions. As relayed in Staff Comments, the procedures for new projects in downtown have been simplified. The proposed procedures allow staff to approve the majority of projects within downtown including all site improvements, building architecture, and minor buildings or building additions of less than 10,000 square feet. Projects characterized as major projects and contain more than 10,000 square feet of new floor area must include public notice to all property owners within 200 feet, and seek approval from the Planning Commission at a public hearing. If the Planning Commission does not approve the project, the applicant may appeal that determination to the Governing Body. He explained that if staff does not approve an application or if the applicant does not agree with some aspect of staff s determination, the applicant has the ability to appeal that decision to the Planning Commission. Any action by the Planning Commission on an appeal from staff is final.

8 Page 8 Mr. Bear stated there are five districts proposed which are: Main Street District 1, Main Street District 2, Santa Fe District, Metcalf District, and the Downtown Neighborhood District. He briefly reviewed each district as follows: In Main Street District 1, office uses are prohibited at the ground floor level; drive thru and automobile oriented uses are prohibited; buildings must be constructed up to the street; on-site parking is not required for a new building or building addition and onstreet parking is permitted. In Main Street District 2, the rules are generally the same as in Main Street District 1 except office and residential uses are allowed on all levels to some extent. In the Santa Fe District, mixed-used buildings are permitted; parking is required and on-street parking can count towards the parking requirements for new buildings; shared parking is allowed between uses; there is a 15-foot build-to line for buildings facing Santa Fe Drive; and there are no height or density restrictions proposed. In the Metcalf District, parking is required but is limited to five spaces for each 1,000 square feet of floor area. For most uses, excluding restaurants, shared parking is allowed. In the Downtown Neighborhood District, townhouses are required on parcels larger than one acre; single-family homes are required on parcels that are smaller than one acre; the density of those developments varies from 9 to 16 units per acre; decorative front-yard fences are permitted. Mr. Bear said with these proposed changes, the Downtown Development Review Board (DDRB) would be eliminated. Also, custom neon tubing would be a change to the sign ordinance and would be permitted in the form of logos or lettering only for signs with custom designs in downtown Overland Park. Mr. Bear relayed that staff held a public meeting on February 19, 2002, with property owners, business owners and downtown residents regarding these proposed changes. He said approximately 30 people attended the meeting, and Mr. Bear stated there were two main topics that arose from that meeting. The first topic related to office uses that are prohibited in the Main Street District 1, and there was much discussion about whether that should or should not be a part of the proposed district regulations. He relayed that some of the property owners in that district would like to retain the right to lease their tenant spaces to office users. The second topic related to public participation in the approval process. Mr. Bear advised that some of the surrounding neighborhood groups that attended the meeting wanted to have as much input as possible regarding projects proposed in the downtown area. With regard to grandfathering of uses, Mr. Bear said if the zoning districts are approved by the Planning Commission and if properties are zoned into these districts, there are some uses that may no longer be permitted. One example is offices on the ground floor level in the Main Street District 1. He said there are ways that the existing office uses in that district will be grandfathered. Generally, any legal use that is in place now will be allowed to remain in place indefinitely if these changes are adopted.

9 Page 9 Mr. Bear said the business can be sold to another entity and the use can be continued or replaced with a similar use. Once the use becomes conforming, Mr. Bear said it must stay conforming. If a space has been vacant for at least 180 days, the next user who comes into that space must also conform to the ordinance. He said there is the ability by the Planning Commission to waive that requirement as a non-conforming situation if the matter arises. Mr. Bear advised that the Ordinance Review Committee also discussed at length these proposed amendments. Ultimately, the Committee recommended approval of the text amendments as proposed by a vote of 3 to 0. Mr. Bear stressed that this is not a rezoning application. There is no property that is being zoned into a different district with this application. Mr. Bear said this is simply writing the text for five new zoning districts. Any of the property within downtown will continue to fall under their existing zoning regulations until such time that the City or the property owners decide to file an application to zone that property into one of these districts. It is the intent that if these district regulations are approved by the Planning Commission and then by the Council, the Council would then authorize staff to publish for a rezoning application to rezone properties into these districts. If that occurs, there would be several more public hearings; therefore, there should not be discussion today about rezoning into these districts. Mr. Bear said staff recommends approval of the text amendments before the Planning Commission as proposed. Mr. White asked who polices the 180-day vacancy provision to which Mr. Bear referred. Mr. Bear said it was not something that would be actively tracked. Mr. White asked if staff planned to provide notice to property owners whose properties have remained vacant longer than 180 days. Mr. Bear replied no. One way staff could reliably be able to track the length of a vacancy is through the City s Business Improvement District fee. If there is a tenant space vacant for any calendar year in the Business Improvement District, normally the property owner has an obligation to advise staff if there is a new tenant in that space so that in the next calendar year the tenant can be billed rather than the owner. Mr. Bear said staff would simply see the tenant finish application come in if a new tenant applied for a building permit. Mr. Lance asked if property owners have been informed of what is being proposed. Mr. Bear said staff has made every effort to do that by sending notices out to all owners of record within downtown and all business owners. Notices have also been sent to the tenants in the buildings in the downtown area. Mr. Bear explained that if the City Council decides to attempt to rezone the properties into these new districts, there would be a requirement that the City send out certified mailings to all owners of record. Mr. Lance asked what kind of continuity would be provided between the downtown area and the City if the DDRB is eliminated. Mr. Bear replied that the main lobbying effort right now for the downtown area occurs through the Downtown Overland Park Partnership (DTOPP), which is a separate not-for-profit company, with offices in the downtown area. He said DTOPP has become the main lobbying group trying to get some improvements in the downtown area. Mr. Bear said the DDRB was more of an architectural review board which looked at changes to building facades.

10 Page 10 Referring to Section , Signs Permitted in Commercial and Industrial Districts, Mr. New asked if the portion about signs painted directly upon wall surfaces shall not be larger than 10 square feet in area, is now permitted within the City. Mr. Bear said this is a repeat of what is already permitted in the sign ordinance. The downtown design guidelines are more specific about signage than what is written here. With regard to the neighborhood meeting held last week, Mrs. Diebel asked staff if some of the property owners in Main Street District 1, who had first floor office space, were relieved after hearing about the grandfathering provision. Mr. Bear believed that the grandfathering information helped greatly; however, some of the property owners in the downtown area would like to retain the option of leasing to an office tenant if they have difficulty finding a retail tenant to use the space. Vice Chairman Reitzes opened the public hearing. Mr. Robert Meyers, 7947 Santa Fe, said he was a retailer in downtown Overland Park, and he believed it was important to encourage retail in this area. He was a property owner with five store fronts in District 1 on Santa Fe, starting at the clock tower and going south to the corner on the east side. Like other property owners, he said he has made an investment in the area that he does not want to see eroded by a rule that places undue restrictions on to whom property can be rented or sold. Mr. Meyers said if only retail is allowed in the Main Street District 1, when a vacancy arises, regardless of 180 days or grandfathering, if no suitable retail tenant can be found, the building would have to remain vacant. A property owner may make a diligent, honest effort to rent to a retail store, which would support the Master Plan, but if no retail tenant presents itself, the landlord should have the right, which exists now, to put the property on the open market and rent to a paying tenant rather than having a vacancy. Mr. Meyers said a vacancy would be worse than renting the space to an office user. Only being able to rent to retail users reduces the market demand for the property; reduces the market price due to the lack of competition and results in potential lower property values due to a smaller potential market. Mr. Meyers said such restrictions infringe on people s freedom and the free market system that works well in this country. In Mr. Meyers block, there have been three building purchases for office uses, which has put a lot of money in the area and helped downtown Overland Park immensely. Under the new zoning, this type of redevelopment would be disallowed. He stressed that these owners have done a great job making downtown better by improving these properties. He said with less competition for the space, rent prices are not going to be at market price, and it will be more difficult for owners to make the investments necessary to improve their properties. Mr. Meyers said as owners, they will support the recruitment of retail stores in the downtown area, but they do not want to be forced into potential vacancies if no viable tenant can be found. He said property owners need a free-market system because it works. He said our country was founded on this freedom, and he does not want to give it up. Regarding the 180-day proposal, Mr. Meyers said if a building has a vacancy for 180 days, that probably means no retail use has presented itself. Instead of restricting it to only retail, which has not worked to that point, Mr. Meyers said it must be opened to the market, allowing other uses to fill that vacancy. He was happy to cooperate with the downtown Master Plan by promoting retail, but not at the expense of the free-market system. Mr. Clayton Nelson, 8402 Marty, said he officed from the back half of Mildred s Coffee Shop, noting that he and his partner own this building. He showed Commissioners

11 Page 11 pictures of what that building used to look like before he made improvements to it. Mr. Nelson said under the proposed rules for only retail on the ground level, his office would not be permitted. He agreed with all of the objectives in the Master Plan, however, he did not believe in one size fits all. He explained that in this situation, his office is on the back half of this building, which faces the alley, and he could not possibly rent that out to retail. Mr. Nelson said this proposal unduly restrains development of existing buildings. Regarding the 180-day restriction, he said obviously no one wants a vacancy for that length of time, and he said it was absurd to handicap the owner even further by removing another potential tenant for their building. Mr. Nelson believed what is proposed is too restrictive, noting there has to be some compromise that would work. He said general office uses could be allowed in the more undesirable locations with less exposure. Mr. Nelson said he and his partner have purchased some other buildings along Santa Fe, and their desire is to have retail on the first level facing Santa Fe. From a property owner s motivation, Mr. Sanders clarified that Mr. Nelson would prefer to rent to a retail user opposed to an office user, given the choice. Mr. Nelson agreed, but stressed that it depends on exposure and location. He said retailers do not want locations with no exposure. If the proposed ordinance is revised so that the retail restrictions only apply to streetfront access, Mr. White asked if that would address Mr. Nelson s concerns. Mr. Nelson said possibly, adding there has to be some compromise, although he was not sure about a solution. Mr. Emanuel Greenberg, said he owned a building at 7912 to 7920 Floyd, and he was co-trustee for a building owned by Dorothy Greenberg at 7928 to 7932 Floyd. He also owned an executive search firm that has been in business for 25 years, which specializes in real estate, development and property management. Mr. Greenberg said his home office is in California. His first objection is that there is no boundary set for the rezoning of these areas. Therefore, his property which falls into Main Street District 2 may be zoned into Main Street District 1. Presently, his space is predominantly restaurant, some retail and office. Mr. Greenberg said he had a space that was vacant for over a year. To the question asked previously by Mr. Sanders as to whether it was preferable to have retail versus office, he said in this little downtown section, there is no advantage because these are mom and pop organizations coming in. The tenant profile who would shop in that surrounding economic area must be considered. Mr. Greenberg stated that in his opinion, 180 days was not a long enough time period. He advised that he received no notice of these meetings. He said he just happened to be in town and because he is co-trustee of the Dorothy Greenberg trust, a notice did come to that trust but nothing came addressed to him. He suggested the City send notification that requires a signature so staff would know if a person did not receive it. Mr. Greenberg pointed out that major retailers are having a hard time right now and going bankrupt. Another concern related to ingress/egress parking for these businesses, and Mr. Greenberg said he was happy to see the Bait Shack open up, however, all those customers are parking in his lot which is wear and tear on his parking lot and his insurance liability. He stated that there is presently a case pending where a woman was attacked at night on his building lot; the woman was coming from the Bait Shack; and she is suing Mr. Greenberg. Instead of the 180-day requirement that has been proposed, Vice Chairman Reitzes asked what Mr. Greenberg thought would be a reasonable number. Mr. Greenberg

12 Page 12 said he did not think any number needed to be there. He stressed that no one wants to keep a space vacant. He said he has turned away tattoo parlors and a porn shop because he did not want it in the building. He advised that most of the owners in this area are responsible for keeping this area great. Mr. Greenberg stated that he wanted more offices in his building, noting that there was no difference in the square footage rent for office or retail because a percentage cannot be charged. Whether it is retail or office, he said it does not matter to the building owner because they just want to get a tenant who can pay the rent and bring something to the area. Ms. Nancy Osborne, 8214 Overland Park Drive, was concerned about not having a height requirement on Santa Fe. She said she lives on Overland Park Drive and looks at Santa Fe Towers everyday and does not want to see another high rise constructed. She was very pleased with the downtown plan and especially liked seeing that decorative fences would be allowed. With no one further to comment, the public hearing was closed. Based on public hearing concerns that were voiced, Mr. Lance asked staff if some changes could be made to address those. Mr. Bear said that is the Planning Commission s decision. With regard to the 180-day rule, he stressed the only way this rule comes into play is, for example, if there is an existing office tenant and the property is rezoned into Main Street District 1, then the office use would become a non-conforming use. If that space becomes vacant, the owner has 180 days to lease that to an office tenant if that is desired. After that time, the owner must lease it to a retail tenant. Mr. Bear said the Planning Commission has the ability to waive that requirement with a non-conforming situation permit. There is no fee for an application, and the owner has the ability to appear before the Planning Commission to ask for relief from that requirement. Mr. Lance asked about the concern regarding the height of buildings, and Mr. Bear said if the Planning Commission would be more comfortable with a height requirement in the Santa Fe District, then staff could make that change. Mrs. Diebel suggested consideration be given to revising the frontage issue that was voiced during the public hearing by allowing interior or back portions of buildings to be used as office space on a non-front portion of a first floor. One of Mr. White s concerns was the 180-day rule because it seemed to him it would depend on the market. While the intent is not to encourage retail space to go to office use, he said if there is an office use there now, that option should not be taken away from the current landowner. With regard to a height requirement, Mr. White thought that a maximum of three stories should be set. Regarding the street front issue, he said Overland Park Drive is a street front; however, what he envisioned as street fronts were Santa Fe, 79th and 80th Streets. He asked staff how much leeway they had at this point to make some of these changes. Mr. Bear said unless the direction is very specific, he preferred not to get general guidance and send that onto the City Council. Regarding the street front issue, he said staff spent a lot of time discussing how to handle this. Staff discussed having two separate zoning districts in a case like Mr. Nelson s, where the back half of a space is used for office and the front portion is used for retail. He said the back half of that space might be zoned MS-2, which allows office uses, but it would be in a different

13 Page 13 zoning district. In those instances where there are unusual circumstances like the one Mr. Nelson has, and there is a strong desire to retain that option, Mr. Bear said either the City can rezone it into those districts or each individual could make an application separately to have the section zoned into the MS-2 district. Mr. White asked how staff selected the 180-day number. Mr. Bear said the 180-day requirement is in the ordinance now which applies to non-conforming uses that become vacant. Mr. Sanders said he too felt uncomfortable with some of the provisions like the 180- day rule and the office/retail issue. He said he appreciated staff s efforts in working on this, adding that he knew it was not an easy task; however, he believed additional discussion was necessary. After listening to speakers during the public hearing, he said they had a point because they are in business to make money. Mr. Sanders believed that these property owners perceive that what the City is trying to fashion would take something away from them. He said obviously, that is not the intent and in fact, it is just the reverse. He said the intent is to try and build a downtown that is more vibrant, more active, more interesting and more fun than it is today. Mr. Sanders suggested that this item be referred back to the Ordinance Review Committee who can, with staff s help, refine issues raised at the public hearing. Referring to the 180-day issue as a member of the Ordinance Review Committee, Mrs. Diebel stressed that the Ordinance Review Committee was not suggesting that a business owner must change the tenant business. The Committee suggested that the only time that the zoning would change from office to business was if it could not be re-leased to an office user within the 180-day time period. Even then, she said the business owner would have the opportunity to come back to the Planning Commission after 180 days, explain how he had done his best to find a retail user and that there is no retail prospects, but there is an office user ready to sign a lease. Therefore, she felt comfortable with the 180-day number. She asked fellow Commissioners what they were uncomfortable with regarding the 180-day time limit. Vice Chairman Reitzes thought the general feeling was that it is too restrictive. Senior Assistant City Attorney Bart Budetti explained that the UDO has a general provision that relays if a use is a non-conforming use and that use is ceased for that period of time, then the owner cannot re-institute that use. Therefore, that is not a matter for discussion or debate today because it is part of the UDO that is a standard provision in every zoning code, probably in every city. Mr. Budetti advised that the issue is, do you create a non-conforming use, because once a non-conforming use is created, then the automatic provisions of the UDO take over. If that non-conforming use is then abandoned for that period of time, it cannot be re-instituted. He said the way a non-conforming use is created is by eliminating a permitted use in a zoning district, or the property is rezoned to another district or the current use in existence is not a permitted use. Mr. White moved to continue Unified Development Ordinance Amendment No. ZRR- 2343, Amendments to Unified Development Ordinance Sections , , , , , , , , , , , , , and , to create new zoning districts and procedures in Downtown Overland Park, to the Planning Commission meeting of March 25, 2002, and remand it back to the Ordinance Review Committee for review of the 180-day non-

14 Page 14 conforming use with regard to existing uses; consideration of a maximum height limitation of three stories; and the street front versus back front issue. He stressed that his major concern related to existing uses and what impact these amendments will have on current landowners. Ms. Holsinger asked staff if sending this to the Ordinance Review Committee was premature. Mr. Bear did not think so because the Commission may decide they do not want to create a situation by adopting these rules where offices could be prohibited in the areas proposed. Therefore, if Commissioners know now they do not want a district that restricts office uses on the first floor of buildings in the Santa Fe District, that district should not be created. Any changes relating to building heights should be changed now. Mr. Bear said the Commission should create the rules the way they want them before properties are zoned into these districts. Mr. Lance seconded the motion, which passed by a 9 to 0 vote. ZONING TEXT AMENDMENT NO. ZRR-2345 Amendments to Unified Development Ordinance Sections , , , , , and to create two new open space residential zoning districts. Application made by the City of Overland Park. (Approved) Mr. Gooch advised that at the January 28th Planning Commission meeting, the Commission authorized staff to publish for the creation of two zoning districts RP-OE, Planned Open Space Estate Residential District and the RP-OS Planned Single-Family Residential District. These two new districts are being planned in response to the recently adopted short-term stormwater management policy where greater flexibility is needed to allow for the preservation of natural features, such as riparian areas, flood plains, wet lands, areas with steep slopes, the City s growth to the south, and to provide for the opportunity to allow for more innovative subdivision design. Mr. Gooch said the RP-O district is intended for those areas of the Overland Park Master Plan for very low density residential (less than one unit per acre) and would be an alternative to the RE Residential Estates Zoning District. He said the RP-OS district is proposed to be utilized in those areas designated as low density residential on the Master Plan (one to five units per acre) and is proposed to be an alternative to the traditional R-1, Single-Family Residential District. Therefore, neither district would be permitted to provide a greater density than that proposed on the Master Plan. These two districts are almost identical in nature with a couple of minor differences. Mr. Gooch said the permitted uses in the RP-OE, Planned Open Space Estate Residential District are identical to those uses permitted in the R-1 districts. The height and area regulations are similar to the residential districts already in the zoning code; however, there are a few changes as follows: (1) The minimum rear yard is 10 feet when adjacent to designated open space land; otherwise, it is 25 feet; (2) The minimum lot width is 50 feet, similar to the R1-A district; (3) The average lot depth is 85 feet when the lot is adjacent to designated open space lands; otherwise 100 feet; (4) The maximum lot area per dwelling is 25,000 square feet.

15 Page 15 Mr. Gooch said the parking regulations are similar to the residential districts already established in the UDO. Regarding district size for RP-OE, Planned Open Space Estate Residential District shall contain a minimum of 15 acres of land, and the Planning Commission and Governing Body may waive this requirement if the proposed tract of land abuts an existing development zoned RP-OE, Planned Open Space Estate Residential District and the proposed tract will enable a compatible extension of the existing development. With regard to Open Space Lands Requirement, the subdivision must include at least 60 percent of the total gross land acreage as open space lands. Not less than 10 percent of this open space land shall be in a form usable to and accessible by the residents; and no more than 50 percent of the open space lands shall comprise active recreational uses. Mr. Gooch said active recreational uses include playing fields, golf courses, playgrounds, tennis courts, neighborhood pools, clubhouse structures, equestrian facilities, and parking lots. Mr. Gooch said low-impact passive uses include conservation of open land in its natural state such as woodland, fallow field or managed meadow; agricultural uses as defined by Section , village/central greens, neighborhood squares, common areas, picnic areas, community gardens, walking trails, bikeways, other kinds of pathways, cemeteries and similar low-impact passive recreational uses specifically excluding motorized off-road vehicles, rifle ranges, and other uses similar in character and potential impact as determined by the Planning Commission and Governing Body. Referring to architectural review, Mr. Gooch advised that all building structures in the designated open space lands would be required to obtain architectural review from the Planning Commission and City Council. However, all single-family homes and accessory structures would not be required to go before the Planning Commission or City Council. Mr. Gooch said the applicant shall, at the time of preliminary plan submission, provide a plan acceptable to the City which demonstrates that all common open space and natural conservation areas will be managed by a responsible party able to maintain those areas in a natural and open space state. Referring to the RP-OS, Planned Open Space Single-Family Residential District, Mr. Gooch relayed that the Statement of Intent, Permitted Uses and Height and Area regulations are identical to the zoning district he just reviewed except for item G under Height and Area regulations, which indicates maximum lot area per dwelling is 15,000 square feet. The Development and Performance Standards are the same as in the district just reviewed by Mr. Gooch. Regarding the open space lands requirement, a subdivision must include at least 30 percent of the total gross land acreage as open space lands. Not less than 20 percent of this open space land shall be in a form usable to and accessible by the residents. No more than 50 percent of the open space land shall be comprised of active recreational uses.