PAGE 4 CITY COUNCIL MINUTES JUNE 9, 2008

CITY OF SHAWNEE

CITY COUNCIL MEETING

MINUTES

JUNE 9, 2008

7:30 P.M.

Mayor Meyers called the meeting to order at 7:31 p.m. in the Shawnee City Hall Council Chambers. He welcomed the public and all stood and recited the Pledge of Allegiance, followed by a moment of silence.

Councilmembers Present / Staff Present
Councilmember Scott / City Manager Gonzales
Councilmember Pflumm / Assistant City Manager Charlesworth
Councilmember Sawyer / Deputy City Clerk Powell
Councilmember Goode / City Attorney Rainey
Councilmember Straub / Assistant City Attorney Rainey
Councilmember Sandifer / City Engineer Wesselschmidt
Councilmember Distler / Public Works Director Freyermuth
Planning Director Chaffee
Councilmembers Absent / Police Chief Morgan
Councilmember Kuhn / Fire Chief Hudson
Parks and Recreation Director Holman
Finance Director Kidney
Project Engineer Schnettgoecke
Information Technologies Director Doherty

Members of the public who spoke: (Item 6) JIM ORR, 4800 Rainbow Boulevard, Westwood, Kansas; (Mayor’s Items) MYRA GROSS, 10801 Johnson Drive.

CONSENT AGENDA

1. APPROVE MINUTES OF THE CITY COUNCIL MEETING OF MAY 27, 2008.

2. REVIEW MINUTES OF THE PUBLIC WORKS AND SAFETY COMMITTEE MEETING OF MAY 20, 2008.

3. REVIEW MINUTES OF THE PLANNING COMMISSION MEETING OF MAY 19, 2008.

4. REVIEW SUP-7-99-5, A SPECIAL USE PERMIT PREVIOUSLY ISSUED TO LINDA AND PHILIP STECK TO OPERATE STECK DAYCARE, FOR UP TO TWELVE (12) CHILDREN AS A HOME OCCUPATION IN THE RS ZONING DISTRICT AT 7018 WOODLAND DRIVE.

5. REVIEW OF SUP-3-88-5, A SPECIAL USE PERMIT PREVIOUSLY ISSUED TO THE PAVILION (FORMERLY POGO’S OF JOHNSON COUNTY, INC.), TO ALLOW THE OPERATION OF A COMMERCIAL RECREATION ESTABLISHMENT IN THE CN (COMMERCIAL NEIGHBORHOOD) ZONING DISTRICT, AT 7436 NIEMAN.

6. ONSIDER ACCEPTANCE OF DEDICATIONS OF LAND FOR PUBLIC PURPOSES CONTAINED IN FP-09-08-05, THE FINAL PLAT OF GARLAND HEIGHTS, FIRST PLAT, FOR A ONE-LOT SINGLE FAMILY SUBDIVISION LOCATED IN THE 25800 BLOCK OF WEST 76TH STREET.

At their meeting of May 19, 2008, the Planning Commission recommended 9-0 that the Council accept the dedications of land or an interest therein, for public purposes contained in FP-09-08-05, the final plat of Garland Heights, First Plat.

Mayor Meyers stated he would now recognize the attorney representing R&Z Investments, Mr. Jim Orr, who would like to speak before the Council on this item.

JIM ORR, 4800 Rainbow Boulevard, Westwood, Kansas, stated he is here on behalf of R&Z Investments, who is the development group that developed the Eagle Creek subdivision. He stated that he is present this evening to express some concerns they have regarding access onto Deer Ridge Drive, which is the western boundary of the Eagle Creek subdivision.

JIM ORR stated the Council has before them tonight on the Consent Agenda, acceptance of the easements and right-of-ways, if he recalls correctly, from Garland Heights which is the subdivision to the west. He stated more accurately for one of the lots of that subdivision, because as he recalls final plat approval has only taken place for one of the various lots in that subdivision.

JIM ORR stated he sent a letter to all of the Council and is sure it was a stem winder, as his suffering from trouble sleeping probably found that letter helpful, as legalisms often are, but what is very serious is his client’s sincere concern to protect the rights of the people who have bought property in their subdivision. He stated that subdivision has homes of upwards to $1 million and people are very concerned about the level of traffic and access.

JIM ORR stated he does not want to keep the Council all night tonight and is sure the Mayor would not let him, but suffice it to say that his clients are very concerned because their understanding was that Deer Ridge was to basically be off limits for driveways. He stated everyone understood there was going to be a connection of the street through there, but not any driveways.

JIM ORR stated as the preliminary plat was approved, there was permission granted to add a driveway onto that street right across from one of the home buyers who purchased from his clients and that may continue to be somewhat of a technical or legal concern, but he would summarize briefly. He stated the approval of the preliminary plat and approval of the zoning was both contingent upon a laundry list of requirements. He stated one of those requirements was that the applicant for Garland Heights was to file a petition to vacate the access control easements. He stated that mechanism, he would submit to the Council, is every fair because that would have given his clients a chance to come before them and argue their case in full. He stated however the Council decides in their conscience is a matter for that day and not for today, but they would want the opportunity to appear and be heard on that issue.

JIM ORR stated it is his understanding that final plat approval for the lots that are adjacent to Deer Ridge have not taken place, so that would be premature, but he does understand that the rezoning was considered by this Governing Body last month and he had a chance to look at the minutes and did not see that that condition was addressed one way or another. He stated he was not present and will stand corrected if it was, but it does not appear to be so from reading through the minutes.

JIM ORR stated he would also emphasize that both City Attorney Rainey and Assistant City Attorney Ellis Rainey have both been characteristically helpful and professional. He stated sometimes they have to agree to disagree, but both of those individuals have been accessible to him and have answered his questions and helped him through the City’s website, which is a good one once he figured out how to use it, as it is extremely informative.

JIM ORR stated communications between the lawyers is not the problem, although again they may need to respectfully agree to disagree, but he would ask the Council to give consideration to the status of those easements and give his clients an opportunity to be heard on that issue, because it is a very important aspect and condition of their development and they really do not want it to slip through the cracks and slide away.

JIM ORR thanked the Council for their time. He stated that he would be happy to answer any questions, but would appreciate this matter to be brought to the attention of the Council at some mutually agreeable time.

Mayor Meyers thanked Mr. Orr. He asked City Manager Gonzales if there was anyone on the staff who could give the Council a better understanding of this item.

City Manager Gonzales stated she thinks it does not specifically pertain to the item on tonight’s agenda, but to a later packet. She stated City Attorney Rainey might be able to summarize the City’s position at this point.

City Attorney Rainey stated he believes the first comment is appropriate, in whether it is germane to the action this evening is the acceptance of the dedications of public right-of-ways in a plat. He stated that means the only public right-of-way on this final plat is the right-of-way for 76th Street which intersects with Eagle Ridge Drive. He stated he would ask Mr. Orr as to whether they have any objections to that or whether or not his comments are directed to that street. He stated the Council body would accept that dedication and that would be the only real issue this evening. He stated Mr. Orr has been fair with the City’s counsel and he does not know if he would have any objection to that.

JIM ORR responded that his client does not have any objection to the fact that there will be a road there. He stated he would lodge two objections that he would like to make clear for the record. He stated he does not think the Council can accept the dedication of this street knowing that there is an access control easement running right across it without addressing that at the same time. He submitted that vacation of the easement and acceptance of the right-of-way are procedurally inextricably bound and he does not want to waive his client’s procedural rights. He stated the fact that there is going to be a road there somewhere is not objectionable to his client.

JIM ORR stated the second procedural concern is that he does not want his client’s right to be heard on this to be worn away by attrition. He stated his concern is that they have already had final plat approval by the Planning Commission where it was determined that this just did not need to be addressed. He stated that does not give his client the chance to get in their two cents. He stated losing is one thing, but not being able to play the game is a totally different thing and they want to at least be able to get in their two cents.

JIM ORR stated he does not want to be seen as accepting a procedure that whittles away and whittles away and then finally there is nothing left to talk about. He stated, with all due respect, if they could bring up the issue of the vacation of the easement at the same time of the acceptance of the rights-of-way being considered, he thinks that is more orderly and preserves R&Z’s rights to a fair hearing. He stated that he thinks is consistent what the Planning Commission intended.

JIM ORR stated the Planning Commission said the approval of the plat and the rezoning are contingent upon the vacation of that easement and then they will all know what the rules are and he is a big believer in rules. He stated he is not a slave to rules, but the rule of law and playing by the rules is very important for all of them.

City Attorney Rainey stated he has had the opportunity to look at and consider this, as well as review the plat and minutes of the meetings and recommendations over a period of about three or four months. He stated it took him the first two and a half months to figure out what they were talking about, so he suspects that maybe some members of the Governing Body are in the same position and if so, he could briefly explain the issue at the request of the Council.

Mayor Meyers asked City Attorney Rainey to proceed with an explanation. A mapped outline was placed on the overhead of the Garland Heights First Plat.

City Attorney Rainey noted Mize Road and 75th Street on the outline. He noted Deer Ridge Drive - the north/south street. He stated Garland Heights is to the west and Eagle Creek is to the east. He stated Eagle Creek was platted earlier and at the time it was platted, the street was dedicated to the public. He stated the plat for that Eagle Creek subdivision included among the dedications, or attempted dedications, a statement that there would be an access control easement. He stated he can start off by saying that he does not think there is such a thing as an access control easement and that may be one area where they disagree.

City Attorney Rainey stated the only important point of it is to point on the map to Deer Ridge Drive. Eagle Creek is to the east and when they dedicated that plat, put in the fine language a statement that access would be prohibited or controlled by the City from the west side, the Garland Heights side, although it was not Garland Heights at the time, to that public street. He stated this is different than any access control that the Council has seen on any plats in the past, in that other access controls have been where the developer and land owner agree that there will be no access from the landowner’s property to an adjacent public street along a particular portion of the plat.

City Attorney Rainey stated in this instance, the landowner put in a statement that there would be no access to the public street from the other property owners’ property. He stated the property on the west is now Garland Heights. He stated that it really did not say there would be no access but that Eagle Creek granted to the City of Shawnee the right to prohibit or control access along that portion of Deer Creek Drive, which is where the cul-de-sac is located at the bottom up to where it intersects with 76th Street at the top. He stated the difference is that in this instance they attempted to agree that there could be no access from another property owners’ property to the street.

City Attorney Rainey stated the City accepted that and it was one of those things that was going along fine until the lawyers got into it. He stated once it came to his attention he said they can not do that, but secondly even if they could, the language of the document is that they grant to the City the right to prohibit and control. He stated that meant it was up to the City as to whether to permit a driveway or not.

City Attorney Rainey pointed out on the map the new street where 76th Street intersects Deer Creek Drive and noted the corner lots on each side. He stated those lots would have access only to the east/west street which is 76th Street. He stated the concern is that there will be another lot to the south that would have a driveway onto that cul-de-sac street.

City Attorney Rainey stated Mr. Orr is saying that his client contends that the City can not permit the driveway or the street without going through a formal process of vacating what they claim is an access control easement. He stated he disagrees, but that would be a longer story.

Councilmember Sandifer asked City Attorney Rainey if that would put the piece of property in a landlocked situation at that period of time.

City Attorney Rainey replied they do not know where the lot lines will be drawn. He thinks the concern is that it is contemplated there will be a lot to the south that would have access to that, but that property has yet to be platted.