OVERLAND PARK PLANNING COMMISSION MEETING

Transcription

1 OVERLAND PARK PLANNING COMMISSION MEETING May 9, 2011 The Overland Park Planning Commission meeting was called to order at 1:30 p.m. by Mrs. Janie Thacker, Chair. The following members were present, constituting a quorum: Mrs. Kim Sorensen, Acting Vice Chair; Mr. Tom Lance; Mr. Edward Ned Reitzes; Mr. George Lund; Mr. John Brake; Mr. Bob Gadd; Mr. Steve Troester; Mr. David M. Hill and Mr. Mike Flanagan. Also present were: Mrs. Leslie Karr, Manager of Current Planning; Mr. Mark Stuecheli, Senior Transportation Planner; Mr. Mike Santos, City Attorney; Mr. Mike Betten, Police Officer; Mr. Jason Beske, Mr. Keith Gooch, and Ms. Danielle Zeigler, Senior Planners; Mr. Aaron Dubois, Assistant Planner; Ms. Pam Fortun, Senior Storm Water Treatment Engineer; Ms. Alysen Abel, Civil Engineer II; Mr. Ernie Longoria, Civil Engineer II; Mr. Mike Meyers, Engineering Services Manager; Mr. Steve Horner, Senior Assistant City Attorney; Mr. Lloyd Nichols, Senior Help Desk Support Specialist; and Mrs. Barbara Potts, Recording Secretary. Approximately 15 people were in the audience. Chair Janie Thacker asked staff if they had any announcements. Current Planning Manager Leslie Karr explained that City Attorney Mike Santos would first like to make an introduction. Mr. Santos introduced Mr. Steve Horner, who is the new Senior Assistant City Attorney, and explained that he has a great deal of experience in the area of zoning and planning and will be able to step right in and provide the legal advice needed. He welcomed Mr. Horner and asked if he would like to make some comments. Mr. Horner thanked Mr. Santos for the introduction. He indicated that he has had the opportunity to briefly meet three of the Planning Commissioners, and looks forward to the opportunity to meet and work with the rest of the Commissioners. On behalf of the Planning Commission, Chair Thacker welcomed Mr. Horner. She said they look forward to working with him and counting on his expertise to help them out. She also thanked Mr. Santos for everything he has done to help them through this interim time. She knows the help he has given them is above and beyond his regular duties, and they really appreciated that. Mrs. Karr said that there is also referred to the agenda and informed the Planning Commission that there are a couple of continuances. She explained that Item No. 6, Special Use Permit No , located at Metcalf, and Item No. 9, Final Plat No , Summerwood Estates Fourth Plat, southwest corner of 159th Street and Quivira, will both require a continuance to the June 13, 2011, Planning Commission meeting. She also referred to Item No. 8, Revised Preliminary Plan for 135th and Price Chopper Centre, northeast corner of 135th Street and Quivira, which has been withdrawn.

2 Page 2 Mrs. Karr said that there is also a non-agenda item that staff is asking the Planning Commission to add to the agenda for Wright Career College, Metcalf.. Mr. David Hill moved to add the non-agenda item to the agenda, which is the Final Development Plan for Wright Career College, Metcalf. Mr. Mike Flanagan seconded the motion. Chair Thacker stated that the preceding non-agenda item will be the last item on the regular agenda. APPROVAL OF MINUTES March 28, (Approved) Mr. Hill said he was not in attendance at this meeting, so he will be abstaining from the vote. Mr. George Lund moved to approve the March 28, 2011, Planning Commission meeting minutes. Mr. Bob Gadd seconded, and the motion passed by a 9 to 0 to 1 vote, including the vote of Chair Thacker who voted on all agenda items. Mr. Hill abstained. ELECTION OF PLANNING COMMISSION VICE CHAIR Mr. Hill said he had the opportunity to work on the nominating committee with Planning Commissioners Tom Lance and Edward Ned Reitzes. It is his privilege to enthusiastically recommend by unanimous vote of the Committee. At this time, it is his privilege to enthusiastically recommend, by unanimous vote of the committee, Mike Flanagan as their nomination for vice chair, and he so moved. Mr. Reitzes seconded, and the motion passed by a vote of 9 to 0 to 1. Mr. Flanagan abstained. CONSENT AGENDA: (Approved) A. FINAL DEVELOPMENT PLAN APPROVAL Haris Engineering Headquarters, vicinity of the southeast corner of College Boulevard and Antioch. Application made by Ali A.K. Haris. B. FINAL DEVELOPMENT PLAN APPROVAL Johnson County WasteWater Radio Tower College Boulevard. Application made by R. E. Pedrotti Company, Inc. C. FINAL DEVELOPMENT PLAN APPROVAL Yogurtini Metcalf. Application made by Darrin Prock. D. FINAL DEVELOPMENT PLAN APPROVAL Hardee s 7724 West 151st Street. Application made by Rising Stars, L.L.C. E. FINAL DEVELOPMENT PLAN APPROVAL Rosana Square Park and Ride Vicinity of the northwest corner of 119th Street and Blue Valley Parkway. Application made by Johnson County Public Transit.

3 Page 3 Mr. Reitzes moved to approve Consent Agenda items A through E, as stipulated. A second was made by Mrs. Kim Sorensen, and the motion passed by a vote of 10 to 0. REZONING NO West 151st Street. Rezoning requested from CP-2, Planned General Business District, and CP-2J, Planned General Business District, to CP-2, Planned General Business District, to allow redevelopment in an existing shopping center. Application made by Polsinelli Shughart. (Approved) Senior Planner Keith Gooch said the applicant is requesting a rezoning from CP-2, Planned General Business District, and CP-2J, Planned General Business District, Johnson County, to CP-2 for redevelopment of an existing shopping center. The acre tract is located at 7681 West 151st Street. Mr. Gooch said that to the north of the property, across 151st Street, is CP-2J zoned property that is developed with commercial uses. To the east, across Conser Street, is land zoned MXD, Planned Mixed Use District that is developed with a bank and also has undeveloped land to the south of this bank. He indicated that the R-2J, Two- Family Residential District, zoned land is to the south of the application area, which is developed with duplexes. He commented that U.S. 69 Highway is located to the west of the rezoning application. In regard to the development plan, the applicant is requesting rezoning from CP-2 and CP-2J, to CP-2, to allow a revision to the existing commercial development. This rezoning will include the existing Stanley Station commercial development and QuikTrip store. These two buildings are currently zoned separately. No changes are proposed for the existing 66,609 square-foot Stanley Station strip building; however, the QuikTrip will be torn down. The QuikTrip is proposed to move to the south where the existing drive and parking lot landscaped islands are located. He explained that the proposed QuikTrip will be approximately 2,000 square feet larger than the existing building for a total of 5,688 square feet. Therefore, the shopping center will be 72,497 square feet in size. Mr. Gooch said that several changes are proposed to the parking lot to allow for the reconstruction of the QuikTrip. However, the access drive from 151st Street will not be changed. The four parking lot islands to the south of the existing building will be rebuilt further to the south, as well as the drive on the south side of the building. On the east and west sides of the new building will be additional parking and two drives. These drives are wider than what is found in most shopping centers, but staff worked with the applicant to reduce the width and provide landscaped areas. He said a total of 335 parking spaces will be provided on the site, which will be nine more spaces than required by ordinance. Mr. Gooch indicated that other alterations have been made. One of the alterations to the site will include increasing the number of gas pumps from six to eleven gas pumps. He explained that a solid landscaped hedge will be planted to screen these drives and gas pumps from 151st Street. Another alteration will be the construction of an Americans with Disabilities Act (ADA) accessible walkway from the sidewalk along 151st Street to the entrance to the QuikTrip. He explained that the ADA walkway will be constructed of colored concrete. Staff requested that this walkway be further to the west near the entrance from 151st Street. However, a letter from the

4 Page 4 applicant s consultant stated that the proposed location of the walkway was the most appropriate location. In addition to these changes, the applicant has agreed to provide landscaping at the northwest and northeast corners of the building. A table and chairs is proposed to be located along the sidewalk near this landscaping. Finally, the parking lot will be at grade with the sidewalk around the building and, therefore, the applicant is proposing to protect the building with bollards around the building. The building will be constructed of two different colors of brick. Mr. Gooch said the main color of the building will be a bronze-tone brick with a midnight-color brick as an accent. The pilasters will also be a midnight-colored CMU block. He added that windows will be located on the east, north, and west sides of the building with a red standing seam metal awning or canopy protecting them. Mr. Gooch indicated that staff worked with the applicant in an attempt to meet the Architectural Design Standards, and staff is comfortable with the east, north, and west elevations. However, staff does not feel the south elevation meets the design standards in terms of the four-sided design, building modulation and articulation, building scale, parapets and cornices, and glazing requirements. Another issue is that mechanical equipment is supposed to be screened. He explained that the Architectural Design Standards generally require roof-top equipment to be screened by the parapet. Several options were discussed between the Site Plan Review Committee (SPRC) and the applicant. The discussions included the American with Disabilities Act (ADA) accessible walkway from 151st Street, screening of the roof-top equipment, the design of the red tube on the canopy, the style of bollards, and the southern elevation. The SPRC and the applicant agreed to the location of the ADA walkway as proposed by the applicant. The remainder of the items will be discussed with the final development plan. The SPRC will likely review the final development plan prior to the Planning Commission considering the final development plan application. In terms of traffic impacts, the proposed changes to the layout of the site will not adversely impact traffic flow within the shopping center and therefore are acceptable to the transportation staff. Staff has added stipulation g, requiring the permanent closure of the median opening at the 151st Street driveway that previously served vehicles that exited the site and turned left onto 151st Street. Based on a condition in the original approval of the outbound left-turn median, this turning movement was prohibited a few years ago because of several accidents that occurred on 151st Street at the driveway. At that time, the City installed interim flexible barriers, but those devices need to be replaced with a raised curb to permanently close the median opening. Since the median opening was constructed to serve trips from the shopping center, that is the subject of this rezoning request. However, staff believes it would be appropriate to require the developer to permanently close the opening. Staff is requesting that Stanley Station Center remove that drive and put in curb and landscaping. He believed the applicant will address that today, as well as at the City Council meeting. Mr. Gooch indicated that stipulation f has been changed. He distributed a revised copy of that stipulation to the Planning Commission prior to the meeting. Staff recommends approval of Rezoning No with the revision of stipulation f. He offered to answer questions.

5 Page 5 Mr. Hill indicated that he has one additional comment he would like to make from the Site Plan Review Committee. He said the bollards were mentioned by staff, but these need to be discussed further before final development plan. He explained that the Site Plan Review Committee would like the bollards to be more than simply a metal sleeve filled with concrete. In their opinion, the bollards need to be more decorative. The applicant has proposed a decorative cap, but the SPRC would like to see some other options as well. He explained that he wanted the full Planning Commission to be aware of this issue. Mr. Curtis Holland, 6201 College Boulevard, thanked staff for working with them on the site plan in terms of the architectural issues. As mentioned, they met with the SPRC, and the applicant is in agreement with staff and the SPRC on all of the items presented. He explained that they have agreed to defer some of the remaining details until the final plan. He assured the Planning Commission that the applicant will continue to work with staff on those items. He anticipated returning to the Planning Commission in a few weeks to present the final plan. He believed they will be in agreement with staff on all of those details. He said the only issue he would like to mention is to clarify one statement in the record, which is the ownership of the tract. He explained that the ownership of the property is Stanley Station Associates, which includes the shopping center, as well as the ground on which the QuikTrip building will be located. In regard to stipulation g, requiring closure of the median with the left turn out that was mentioned by staff, Mr. Holland said his client does not believe he is responsible for the cost to close the median. As he explained, the improvement of 151st Street was a City project in the 1990s. It was a median opening allowed at that time and then closed by the City, so it should not be a cost that the shopping center owners should have to carry. There are cones in front of the driveway to temporarily close the driveway, but they are being asked to do an offsite improvement that is not really related to their project. He believed this is an issue that needs further discussion and consideration. Mr. Holland stated that they worked hard with staff on several issues, and they were happy to meet with the Site Plan Review Committee a couple of weeks ago and take some of their ideas and suggestions into their design as they move towards final plan. He said they are in agreement with all the other stipulations and would stand for questions. Mr. Tom Lance asked whether the applicant will be using asphalt or concrete on the drive and parking lot areas. Mr. Holland replied that this project will be using all concrete. In response to Mr. Lance s question when the project will begin, Mr. Holland said the plan is to move quickly on the construction of the QuikTrip. He explained that this particular store is of great interest to QuikTrip in terms of the rebuild of the store. Their plan is to build as quickly as possible and to move forward in a very orderly and aggressive manner. Mr. Flanagan asked staff for clarification regarding stipulation g. He noted that there are two openings out of the shopping center. There is one to the left and one further

6 Page 6 down to the west. He asked if the plan is to just close one of the drives. At the current time, there are orange cones in front of the drive. Senior Transportation Planner Mark Stuecheli said the orange cones are called flexible delineators. He indicated that he was the project manager during the construction plan appropriation stages for the 151st Street project, and he was heavily involved in the access that was proposed in this area. To provide some background, the plan for the 151st Street project was discussed in 1995, and the shopping center existed at that time. He said 151st Street was a two-lane road in 1995, and many of the driveways had not been planned and were not developed by the county. He explained that there were several discussions regarding access issues. Therefore, the initial proposal by the consultant was to have an actual median from the ramps to the relocated streets of Conser and Newton. He noted that concerns were expressed by the property owners during negotiations with the Council, which resulted in the current design. Staff had concerns about the safety of the design at that point. The major concern was the left-turn movement out of the shopping center, while trying to negotiate with all the other traffic and movements that were happening. He explained that several years after the project was built, staff did an analysis of the accidents and found there was a significant accident issue, which was mainly associated with the left-turn-out movement. According to Mr. Stuecheli, the Public Works Committee directed the temporary closure about five years ago, so the delineators were placed at the driveway. He believed the property owner was okay with losing that access, considering the problems which resulted in several accidents. There was some discussion in regard to evaluating this situation to determine whether it should be made a permanent closure, but that has not happened. Because of the significant change proposed on this site and because the original access provision was requested by the shopping center, staff believed it was appropriate to include that stipulation as a requirement. He explained that the project would involve the removal of the curb along either side of the drive that cuts across the median, construction of a new curb parallel to the travel lanes along 151st Street, and filling in with some soil and turf, so it would not be a major project. Staff believed this project could be accomplished at the same time the other construction would be done to the shopping center. Staff believed this was something that was reasonable to request but, obviously, it is a decision to be made by the Planning Commission. Mr. Flanagan asked for clarification. His understanding is that the median cut was done at the request of the entire shopping center, including the QuikTrip, so it would be reasonable to say that any costs that were associated with Quik Ttrip could probably be negotiated with the other businesses in terms of saying this driveway has to be closed. Mr. Stuecheli explained that this is a private matter. Staff is just saying that the closing of the driveway needs to happen concurrent with the construction of this project. When Mr. Flanagan asked if he was only talking about closing the driveway to the east and not the one to the west, Mr. Stuecheli explained that the driveway would not be closed. He clarified that they would just be closing the median break. Mr. Flanagan referred to the map and asked about the driveway to the west.

7 Page 7 Mr. Stuecheli explained that the driveway to the west is actually a left-turn-in from 151st Street into the properties north of 151st Street. When asked by Mr. Flanagan if that driveway would remain, Mr. Stuecheli said yes, that driveway is not being impacted by this project. No comments were offered in response to the announcement of the public hearing, and it was declared closed. Mr. Hill believed the report given by Mr. Stuecheli was very helpful. He asked the applicant if he agreed with Mr. Stuecheli s account of history in terms of the shopping center, which was the original entity that requested the access. Mr. Holland said they do not know the genesis or what occurred in 1995, so he cannot confirm it. When his client originally talked to staff about this, he was talking about the QuikTrip and the plan to rezone that particular area. Later, staff requested that the entire shopping center be involved in the rezoning. Therefore, this rezoning includes more area than his client was initially requesting. Mr. Flanagan said he will support a motion to approve this item with the inclusion of stipulation g. Based on the report given by Mr. Stuecheli, he believed it made sense that the applicant should bear the cost of closing the median break. Mr. Steve Troester agreed with the preceding comments and, therefore, he moved to recommend to the Council approval of Rezoning No , 7681 West 151st Street, with stipulations a through l, including the revised stipulation f. Mr. Hill seconded the motion. Mr. Hill said he seconded the motion because he agrees with Mr. Flanagan s assessment of the situation as well. On behalf of the Site Plan Review Committee, they are very pleased with the new design and direction that QuikTrip is taking on the architecture and is looking forward to the project. The motion passed by a vote of 10 to 0. SPECIAL USE PERMIT NO West 152nd Terrace. Special use permit requested for a five-year period of time to allow a recreational facility. This property is currently zoned IP-1J, Planned Light Industrial District, Johnson County. Application made by Johanna Lucas. (Approved) Assistant Planner Aaron DuBois said the applicant is requesting approval of a special use permit for a five-year period of time to allow a recreational facility located at 6855 West 152nd Terrace. The property is located in an existing industrial-zoned building. The surrounding properties are a mixture of light industrial uses with multiple special use permits to allow a recreation facility. The Future Development Plan map shows this property as appropriate for industrial uses. As he explained, a special use permit is required for a recreational use at this location.

8 Page 8 Mr. DuBois informed the Planning Commission that the applicant has had a previous special use permit to allow a temporary commercial building at 8303 West 126th Street. He explained that the applicant is proposing to move to a larger location. Previous special use permits have been approved for this property to allow a martial arts school and a gymnastics studio. However, this is the first request by KC Athletic Cheer at this location. He indicated that the Unified Development Ordinance (UDO) requires recreational facilities in industrial districts to be approved for a special use permit and be limited to a five-year period of time. There are a total of 41 parking spaces on site, and staff believes this is sufficient. Staff recommends approval of Special Use Permit No for a five-year period of time with no stipulations. Ms. Johanna Lucas, 9804 West 130th Street, said she conducts her business from 4:30 p.m. until 9:30 p.m. She said they also have some summer camps. She commented that she has more parking than she had before, but parents usually do not stay. The children are dropped off and picked up after the classes. When asked by Mr. Lance the hours of operation for her business, Ms. Lucas said she has some morning classes in the summer, but during the school year from August to June, her hours are 4:30 p.m. until 9:30 p.m., Monday through Thursday. There are also some occasional Sundays from 3 p.m. until 6 p.m. Mr. Lance inquired how she will advertise her business. Ms. Lucas explained that they had advertising in the windows at their last facility. She was told she has to have advertising on the sign that is currently at this location. However, she does not actually need to advertise, because her business is more of a word-of-mouth business. After confirming that no one wished to speak for or against this item, Chair Thacker declared the public hearing closed. Mr. Troester moved to recommend to the Council approval of Special Use Permit No , 6855 West 152nd Terrace, for a five-year period of time with no stipulations. Mr. Gadd seconded, and the motion passed by a vote of 10 to 0. SPECIAL USE PERMIT NO Hardy. Special use permit requested for a 10-year period of time to allow a dog kennel. This property is currently zoned RN-1J, Residential Neighborhood One District, Johnson County. Application made by Tim and LuAnn Curtis. (Approved) Senior Planner Jason Beske said the applicant is requesting a special use permit for a dog kennel for a 10-year period of time to be located at Hardy. He explained that it is described as a hobby kennel, which is for the owners to keep and raise dogs. This property is currently zoned RN-1J, Residential Neighborhood One District, Johnson County. The 2.2-acre property is located in southern Overland Park adjacent to U.S. 69 Highway, which is to the east. The properties to the north and northwest are zoned RN-1J, and the properties to the south and southwest are zoned RUR-J, Rural District, Johnson County.

9 Page 9 In terms of the history of the subject property, Mr. Beske said it was annexed into the City in He explained that it is located in the Aubry Area of Overland Park. In 2005, they were given a conditional use permit from the County for a two-year period. of time to operate the same type of a kennel. The City does not have any specific regulations in regard to how many dogs are allowed to be in a kennel. However, the way it was stipulated in the conditional use permit was that the kennel would have only 15 adult dogs. He explained that adult dogs are described as dogs that are oneyear old or older. Referring to the aerial view of the site, Mr. Beske said the applicant has an exercise yard outside of the property. Staff has discussed this with the applicant and stipulated that the animals cannot be outside if there is no one present on the property. He explained that they use their existing garage as the indoor kennel. The garage is air-conditioned and accommodates the dogs on the inside when the owners are not there. Mr. Beske said the current site plan shows the house on the western side of the property, and the garage that has been converted to the kennels is on the northern side of the house. He commented that the existing exercise yard will be the new exercise yard with kennels outside. There is a lot of screening on the north side, and with U.S. 69 Highway on the east side, there are some trees to screen that area. To the south is RN-1J zoning, Residential Neighborhood One District, Johnson County. The Comprehensive Plan identifies this area as very-low density residential. Also shown on the plan is a future mixed-use node located approximately 600 feet south of the home. Mr. Beske said the Comprehensive Plan does not specifically discuss the appropriate location for dog kennels, but the Unified Development Ordinance (UDO) does require the applicant to acquire a special use permit in order to operate in this manner. Mr. Beske showed a view of the front yard looking east and the view from Hardy. He wanted to clarify one thing in the written staff report that indicated the applicant had been existing in a non-conforming use. Because of the annexation, the applicant was told from the county not to pursue the conditional use permit, but he will let the applicant explain that. This property was annexed in 2008, the conditional use permit expired in 2007, and the owners were waiting until after the City s annexation. to come to the City to obtain a special use permit. According to Mr. Beske, the animal control officer from Overland Park visited this location in February and documented his observations of the operation. He referred to the letter submitted by the animal control officer in the packet materials, which shows everything to be in relatively good condition. However, his understanding is that a number of complaints have been issued regarding the dog kennel operation, and there may be people in the audience who will be speaking during the public hearing. As mentioned earlier, the applicant is requesting a special use permit for a ten-year period of time, but staff is recommending Special Use Permit No for a five-year period of time, subject to stipulations a through j. Mr. Beske explained that staff s recommendation for a five-year period of time is based on the owner s kennel operation

10 Page 10 under the County s two-year conditional use permit and continued operation as a non-conforming use. Therefore staff would recommend approval for a five-year period of time. Mr. Timothy S. Curtis and Mrs. Luann J. Curtis, owners of the Crossmoor Labrador Kennels, Hardy, said they would like to clear up the County non-conformance issue during the annexation period. Mr. Curtis informed the Planning Commission that the county refused to take a new application and deferred them, as owners of the kennel, to the City of Overland Park at that time. Mrs. Curtis explained that the County refused to entertain a new permit until the annexation process was completed, because they were uncertain as to how the process would work and whether they, as the County, had the authority to approve a new permit. She said there was much confusion at that period of time. As presented by staff relative to their dog kennel business, Mr. Curtis indicated that there have been several inspections by multiple entities, such as the County, the City of Overland Park, the Overland Park Animal Control Officer and Code Compliance Officer, and the American Kennel Club, since they began their operation. He pointed out that they have had no violations, no corrective actions, and no suggestions as to changes to the process. They have been in compliance since the beginning of their operation on this property in terms of all of the regulations mentioned. Mr. Troester asked the owners to provide the details of their operation. He inquired whether they care for animals while their owners are on vacation or away from home, or do they breed and raise these animals for sale. Mrs. Curtis said the reason their business is referred to as a hobby dog kennel is that she actively shows Labrador retrievers. She does not board other people s dogs. They are limited to two to three litters per year. The State of Kansas requires a state kennel license if a person has four or more litters. They are not a big operation. Mrs. Curtis stated that they do not raise dogs to support themselves. She has a career as a dental hygienist. This is strictly a hobby for them, and they have been showing Labradors for 20 years. Some of their dogs are used as support dogs to assist handicapped people or as a companion to someone. In the past, they have donated dogs to organizations, such as Paws for Freedom, which is a local organization. She explained that she and her husband essentially show dogs from the age of six months to their veteran years. Chair Thacker asked if the owners are in agreement with stipulations a through j. Mr. Curtis confirmed that they are in agreement with all stipulations. Chair Thacker opened the public hearing. Mr. Greg Pemberton, Hardy, which is one house directly north of the Curtis. He has lived at this location for 24 years. He said his wife and he are seeking denial or revocation of this special use permit due to the obvious noise and odor problems

11 Page 11 caused by what they consider to be an unlawful number of adult dogs. He is yards away from the garage, which is the kennel. He played a recording of dogs barking for the Planning Commission to hear and explained that he heard the dogs barking when he was watering his flowers. Mr. Pemberton said he had to return two of the Curtis dogs to them last week. The dogs approached them while they sat on their deck. They were barking at his family and one of the dogs was showing his teeth. He said they defecated in their yard, and one of the dogs tried to mount his dog. No one from the City comes out to check on this business. Other people in the neighborhood feel the same way he does, and the City will be receiving a petition from the neighbors. He and his family cannot have guests outside or family picnics because of the noise and the odor. Mr. Reitzes asked if the Curtis were home at the time that their dogs got out and got into their yard. Mr. Pemberton said the Curtis were home at the time when their dogs got out. He returned the dogs immediately to them, and he was not pleasant about it. He and Mr. Curtis have had many discussions about this problem. He explained that he is a landscaper and spends a lot of money to keep his yard looking nice. The adjoining property has weeds and is not maintained. He stated that if the dogs get out again and come into his yard, the Curtis will have to pick them up from Animal Control. When asked by Mr. Reitzes if the dogs have invaded his property often, Mr. Pemberton said they have not. Mr. Pemberton said the Curtis have a fence on their property, but it is not in compliance with the City s codes. The nice side of the fence faces them, and he has to look at the deteriorated fence from his house. The fence is set about two feet off the ground, which allows Mr. Curtis dogs to come through. Mr. Reitzes inquired whether he has seen the owners clean up the dog feces in their yard. Mr. Pemberton said he has seen them pick up the feces and clean the area. He pointed out that he had never seen Mr. Curtis work so hard to clean up as the night before the City inspector arrived. Mr. Flanagan referred to the drawing that showed the fence around the Curtis yard. He commented that it is a wood fence that does not surround the entire yard. Mr. Pemberton confirmed that the fence has not been completed. He noted that Mr. Curtis erected several poles, and it appeared as though he was going to build an addition to the fence. The poles are still there with no pickets on them, and it was not done by a craftsman, so the fence looks bad. Mr. Flanagan said the drawing shows a tree line that looks solid to him. He asked if it is a thick tree barrier to help keep the noise to a minimum. Mr. Pemberton said the Curtis have Bradford Pears that line their property, which provide a sound barrier, but they are 12 feet off the ground. If the trees were closer to the ground, that would provide better coverage. He explained that all he is asking for

12 Page 12 is a complete fence at least eight feet high. Currently, the fence is two feet off the ground and only about six feet high. He would like to see a fence that looks nice to the surrounding neighbors and one that provides the privacy that the Curtis would probably want too. There is a gap in the fence at the bottom, and he could probably climb under there and get through. If there would be a substantial fence surrounding their property and some low ground cover, Mr. Flanagan asked if that would help. Mr. Pemberton believed the Curtis also need to close the fence back to the south. He commented that running a fence, and then stopping it, with the west side of their property open, their dogs can see everybody that moves, and the dogs bark every time they see movement. Although the dogs are confined in the garage, all the dogs need is to hear sound, and they bark. Mr. Flanagan asked how long the Curtis have had this operation in the neighborhood. Mr. Pemberton believed the Curtis arrived about 12 years ago. When they moved into the neighborhood, they came over and introduced themselves. He pointed out they got along well with each other. The Curtis initially had two dogs, and then ended up with 12 to 14 dogs. Mr. Troester asked about the recording that Mr. Pemberton had played earlier for the Planning Commission to hear the barking and noise. He wanted to know if the barking occurs when he just steps out of his house. Although he is not accusing him of anything, he inquired whether he may have provoked the dogs in some way. Mr. Pemberton said no, he does not do anything to provoke the dogs. First of all, when the Curtis are gone, the dogs are confined for the entire day. The dogs never come out except for a bathroom break when the Curtis are home. However, when the dogs are outside, he cannot go on the south side of his house without the dogs barking. There is a short pen where the dogs run that extends from their back porch to the open area of the fence that was not finished. The dogs can see him, and they immediately start barking. In addition, he owns a female Labrador, which intrigues their dogs as well. Mr. Gadd asked if the recording of the dogs barking was when the dogs were outside. Mr. Pemberton said the recording was made when the dogs were inside the garage. He was standing on his own property, and it is probably no more than 30 feet from his property to their garage. He explained that the barking heard was from several dogs. When asked by Mr. Gadd if the dogs bark at night when he is in bed, Mr. Pemberton explained that the dogs bark day and night. He has gone over to the Curtis house and he spoke through the glass door, which is secure. He is not the type of guy that gets physical or would start a fight, but when nobody does anything to stop the dogs from barking, he will go over to their house and talk to them. In response to Mr. Gaad s question whether he has ever called the authorities to complain, Mr. Pemberton said he has not, because he takes care of it himself.

13 Page 13 Mr. Pemberton pointed out that there is a mistake on the original special use permit. He explained that they were supposed to have a maximum of 12 dogs, and he believed there are 16 dogs on their property. He indicated that it is hard when those dogs are taken in and out of the house to ever get an exact count, but he has counted as many as 13 or 14 adult dogs at one time. He mentioned that someone said the puppies do not count as dogs in the total number; however, puppies bark and make messes just like the adult dogs. Mr. Pemberton stated that all he is asking is for the Curtis to operate their business so it is not a nuisance. He explained that he does not want to smell dogs, have them barking at him, and he does not want their dogs in his yard. No one else came forward, and Chair Thacker declared the public hearing closed. In response to Mr. Pemberton s statement regarding the dogs getting into his yard, Mr. Curtis explained that the drive gate got damaged in March, and when he was fixing the fence, he did not realize that the gate had gotten damaged also. Therefore, two of the dogs got out that gate. He has since fixed the fence. He pointed out that this was the first time they had gotten out since 1998 according to his records. When Mr. Pemberton brought the dogs back to him, he asked if there was an issue other than them getting out, and he mentioned nothing about baring their teeth or any other problems. The second issue raised by Mr. Pemberton was about the bottom of his fence being two feet off the ground. Mr. Curtis explained that this particular fence was taken down some years ago. He stated that the picture shown today is not an accurate picture of the current fence. He indicated that Mr. Beske has a picture of the current fence that will show what is there now. Mr. Curtis said he has had several discussions with Mr. Pemberton relative to the fence. He built a solid wood fence inside the chain link fence per the County s recommendation per the County s recommendation. The solid wood fence is two to three feet to the south of the chain link fence. In terms of the solid wood fence not being finished, he explained that the County advised him not to build the fence in the front yard, because it was not per their code. The County told him he would have to obtain a conditional use permit to build the fence in the front yard. That is why they built the current fence from their house to the east and extended it to the end of their property. According to Mr. Curtis, the County also informed him he could not build an eightfoot-high fence, and insisted that it be a six-foot-high fence. He indicated that this was in the township report that went to staff at the county before their approval. Thus, per the county s request, he built a solid, six-foot-high, dog-eared cedar picket fence. As far as the comments about the odor, Mr. Curtis said they have been visited by inspectors about a dozen times, and they do not have a single written report to that effect. Mrs. Curtis explained that the dogs are exercised during the day. She has negotiated with her employer to be able to have a two-hour period in mid-day. She comes home and lets the dogs out to run and have some exercise. She assured the Planning

14 Page 14 Commission that she supervises the dogs for two hours, and then she puts them back into the garage when she goes back to work. She explained that she does that three days a week, and the rest of the week she is home with them all day, and the dogs can exercise when appropriate. According to Mrs. Curtis, they have some champion dogs, and none of the dogs are treated poorly. She stated that it was the first time the dogs were off the property when they went into Mr. Pemberton s yard. She said Mr. Pemberton did bring them back, but he said nothing about damaging his property or defecating in his yard. In regard to dogs being out, there is no leash law where they live. She recalled that two weeks prior to their dogs getting out, one of their neighbors had to bring Mr. Pemberton s dog back because it had gotten out. She pointed out that Mr. Pemberton s dog roams frequently and has been in their yard. His dog has gotten onto their property in the front and incited fighting with their dogs, and she has had to break up the fight. She does not want to get into a conversation of reporting on each other, but there is more than one side. In terms of the question relative to the number of dogs they have, Mr. Curtis said there has been confusion. When they initially moved to the property, the state regulations counted it as an adult dog at 24 months of age. They started on that process, and 12 dogs was plenty at 24 months and older. When they went through the County permit process, they told them they were going to count the dogs at 12 months of age. He explained that when his wife trains dogs and donates them to the service groups, such as wheelchair assist dogs, they want dogs that are in that 12- month age range. He clarified that they are not trying to expand the operation. With regard to clean-up and odor, Mrs. Curtis said, weather permitting, she is out there cleaning as often as she can in the spring, summer, and fall if it is not frozen, she is out there cleaning as often as she can in the spring, summer, and fall months. At 2:45 p.m., Mrs. Kim Sorensen left the meeting. Chair Thacker asked the owners how many dogs they currently have that are 12 months or older. Mrs. Curtis explained that they have 12 dogs in the kennel. With regard to dogs going outside, she has both male and female dogs, and she would not let them all out at the same time, because she could not manage them that way. When asked by Chair Thacker how many dogs she has under 12 months of age, Mrs. Curtis said they currently have a litter of puppies that are nursing, because they are two days old. There are also three, eight-week old puppies. In reference to noise and barking, Mrs. Curtis said they have the solid wood fence, and they have also planted four pine trees in front of the nine Bradford Pears. She pointed out that when Mr. Pemberton is on his deck, their dogs cannot see him. However, when Mr. Pemberton comes to the front yard or stands on the property line, their dogs can see him. In terms of the recording of multiple dogs barking that was played by Mr. Pemberton, she did not know where he recorded that. She believed the sound could be amplified. She and her husband stop the noise when they are there, and she cannot tell where or when that barking was recorded.

15 Page 15 Mr. Curtis showed pictures of the current fencing, the Bradford Pears and the Pine trees. He explained that the pictures were taken on the south side of the property, looking north. He said the fence extends about 300 feet to the front of the property. He pointed out that the fence in the picture is the one the County asked them not to build to the street. Chair Thacker closed the public hearing and said the item was back before the Planning Commission. She asked Mr. Beske if there is some information that might be helpful in the discussion. Mr. Beske said that, first, the noise issue is a little difficult to ascertain, because it was in the County, not in the City. However, staff could stipulate that the applicant abide by the noise ordinance, which specifies a decibel level at the property line of 60 decibels during the day and 55 decibels from 10 p.m. to 7 a.m. Mr. Beske stated that a second stipulation would be to stipulate the number of dogs. He said the City does not have a specific standard, so if the Planning Commission feels comfortable with a certain number, he would advise them to do that. For a special use permit, they can set a number by which the applicant would have to abide. Mrs. Karr said the City s noise ordinance does have a specific requirement relating to animals. The ordinance indicates that, keeping an animal that emits an audible sound without provocation or complaint, that is unreasonably loud or disturbing, which is out of character of intensity or duration as to disturb the peace and quiet of a reasonable person, would be a violation of the City s noise ordinance. Because the property was recently annexed and was under County zoning, it is not necessarily subject to the City noise ordinance, but if part of a special use permit, the Planning Commission could, if they chose, stipulate that this operation be subject to that provision. Mr. Flanagan said that stipulation g does say the kennel shall be operated in a manner that prevents noise, among other things. He believed what is happening is this was originally under the County s jurisdiction. Since the annexation, it is now within the City of Overland Park. The City of Overland Park may be able to provide a little more vigilance on some of these situations, such as noise particularly. He agreed that the Planning Commission should probably put some stipulation in regarding the number of dogs allowed. However, he does not understand how that could be done because of the litters, etc. He would also like to be able to have some unplanned inspections without saying when they are coming. He understands that this is their livelihood and has been going on for some time. He recalled that when the Planning Commission considered doggie day cares, the applicant had numerous pages on how they disposed of the feces and irrigation and it was very elaborate. Mr. Flanagan wondered if it would be possible to approve this special use permit for less than five years. The City could have ongoing inspections, which would also give Mr. Pemberton the option of complaining to the City if there is noise or other issues. It seemed to him that they were getting into a little bit of a fire fight between two neighbors, and that is not something in which the Planning Commission should become involved. He asked if it would be possible to approve this for two years.

16 Page 16 Mr. Beske confirmed that the Planning Commission could choose to decrease the time and, essentially, give the applicant a trial period that would allow them to prove themselves. He suggested the City could stipulate that there be a certain number of unannounced inspections during the next two years. Mr. Flanagan said he would like to see a shorter period of time. He suggested that it might be best to approve this for a one-year period of time, and then come back in one year to see what the situation is like in terms of whether the noise has decreased. He believed this would allow the owners to keep the operation going and would also allow Mr. Pemberton some recourse as to the noise levels and maybe, there could be some peace between the two neighbors. Mr. Lance agreed with Mr. Flanagan s proposals. He suggested one other element that might need to be decided would be the maximum number of dogs, whether it would be a new litter or the fact that they have been there four years. He believed they needed to put a measurement on the quantity or the number of dogs allowed to be in the dog kennel. Mr. Brake said he understood the extenuating circumstances because it was initially located in the County, and now it is located in the City. However, he is not comfortable with having this kind of operation in a very-low-density residential neighborhood. He did not believe that is what the average home owner in this type of neighborhood expects to find. He tends to agree that they should not approve the special use permit for more than one year. He felt that might give the owners more opportunity to find another location. Mr. Gadd said that contrary to what has been said, he heard the applicant say this business is not their livelihood. He believed this operation is more of a hobby, and for the Planning Commission to encourage their hobby at the expense of the neighbors is not acceptable. He agreed with Mr. Brake that this type of operation does not belong in this area. He will oppose the motion to approve this special use permit. Mr. Hill indicated that Mr. Pemberton mentioned that he would prefer not to get the City involved, and would prefer to solve these matters himself. He believed, for the most part, that neighbors should try to solve these issues. However, it is clear to him that maybe the City should get involved, and some documentation should take place if, in fact, what Mr. Pemberton is saying is happening. He asked what the reasonable expectation would be if someone would call with a complaint related to noise. He inquired if that is a code issue and is a code enforcement officer going to respond, or is the Police Department going to be the first responder. He also asked who makes the findings in terms of decibel levels. Police Officer Mike Betten said they certainly appreciate the call to document this, but one of the problems they have with the enforcement of the noise ordinance is the ability to properly read the decibel readings. He explained that this is where the issue becomes a problem. He stated that, typically, when someone calls, the Police Department would document that case, but generally it is absent a decibel reading. He said that is the one issue they have, not only for dogs. The Police Department, but the Polite Department gets these types of complaints regarding street sweepers and things of that nature, such as behind Target or Wal-Mart that back up to a residential