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MARCH 15, 2005 MINUTES/SPEC ~~ CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" ITY COUNCIL MAYOR MEYElIA E. OBERNDORF, At-urge VICE MAYOR LOUIS R. JONES. Bayside - Dislrret ~ HARRY E. DIEZ,EL. Kt:1Ilpsville . District 2 ROBERT M. ("BOB ") DYER - Cell/ervi/le - Dislric/I REBA S. McCLA.NAN, Rose Hall- District j RICHARD A, MADDOX, Beach - Dislric/6 JIM REEVE. Princess Anile - District 7 PETER w. SCHMIDT. At-urge RON A. VILLANUEVA. At-urge ROSEMARY WILSON, At-urge JAMES L, WOOD. LywavslI -District J CITY COUNCIL AGENDA CITY HALL BUILDING I 240/ COUImiOUSE DRIVE VIRGINIA BEACH. VIRGINIA 23456-8005 PHONE: (757) ~27-4303 FAX(757) 426-5669 EMAIL:Ctycncl@vbgov.com JAMES K. SPORE, City Manager LESUE L. UIJ.EY, City AUortlBJI RU11I HODGES SMITH. MMC, City Clerk 15 MARCH 2005 1. BUS RAPID TRANSIT (BRT) Demo - City Hall Entrance s:oo PM II. JOINT LAND USE STUDY (JLUS) - Council Chamber (Staff presentation and City Council Workshop] 6~OOPM ill ADJOURNMENT ?.'~tJ~P7 MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 15 March 2005 At the conclusion of the Bus Rapid Transit (BRT) Demonstration ride at 5:00 P.M., Mayor Meyera E. Oberndorf called to order the CITY COUNCIL WORKSHOP re the JOINT LAND USE STUDY (JLUS) in the City Council Chamber, City Hall, on Tuesday, March 15, 2005, at 6:00 P.M Council Members Present: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None Vice Mayor Jones left at 7:20 P.M, due to illness. Councilman Wood left at 7:00 P.M.,for his daughter's 14th Birthday. - 2- JOINT LAND USE STUDY 6:00 P.M. ITEM # 53696 Mayor Oberndorf recognized the attendees representing the United States Navy: Captain Tom Keeley Commanding Officer - NAS Oceana Captain Patrick J. Lorge Executive Officer - NAS Oceana Commander John Lauterbach Commander Terrance "Terry" Shannon Ray Firenze Community Planning Liaison Officer Robert Rountree Plans and Policy Officer Troy Snead Public Affairs Officer Mayor Oberndorf advised the City of Virginia Beach has been participating in a Regional Joint Land Use Study (JLUS) with the Cities of Chesapeake and Norfolk as well as the United States Navy. The goal has been to develop collaborative policies, which enable the cities to achieve important land use planning objectives while enabling the Navy to continue their attain vital military operational objectives. In January, twenty-four (24) recommended Joint Land Use Plan recommendations were received by the City Council from the Air Installations Compatible Use Zones (AICUZ) Task Force. City Council eliminated two (2) of the recommendations which would have allowed condemnation or buying land from willing sellers in Accidental Potential Zones. The City and the Navy wish a Subcommittee be formed to further develop the Joint Land Use Study ideas. During the City Council Session of March First, the City Council requested a comprehensive briefing relative the progress to-date be scheduled on March 15, 2005. Councilman Maddox, Member - AICUZ Task Force Policy Committee, advised the proposed Statement of Understanding (City of Virginia Beach and United States Navy) is beingpresented to the City Council. Very early in the process (at the first stakeholders meeting), the comment was made the Study should have been conducted twenty-five (25) years ago. The actions of three generations cannot be undone overnight, but the direction of the future can be changed. Councilman Maddox quoted from the Statement of Understanding: "The meetings and discussions engaged in by the Joint Land Use Study subcommittee represent the most frank and in-depth dialogue concerning encroachment and incompatible development to have ever taken place between the Navy and the City, " This is a powerful public statement, but true. This dialogue will never be finished as the Navy's mission changes and the City evolves, so too will the mutual understanding need to progress and change. Today, the foundation is laidfor the future. There will always be differences when the Navy is controlled by their OPNA V Instruction and the City their citizens' property rights and zoning law. The Navy and the City will engage in a continuing dialogue. The Navy will be included as a vital stakeholder in revising the Oceanfront Resort Area Concept Plan. March 15, 2005 - 3 - JOINT LAND USE STUDY ITEM # 53696 (Continued) Councilman Maddox advised his vote would have been Nay re the application of NEAR POST, LLC (1020 and 1040 Laskin Road/Oriole Drive),for a Conditional Change of Zoning (ADOPTED by City Council on November 25, 2003), if he had previously experienced these many "face to face" dialogues. The mutual understanding developed would, have prevented his votingfor this application, Councilman Reeve, Member - AICUZ Task Force Policy Committee, believes the Joint Land Use Study was one of the most important topics considered by the City Council during his tenure. This issue will be important in the coming years to be assured Virginia Beach remains a vital, multi-faceted economic city, as well as Ocean a 's position is maintained in the City both for National Security as well as support of the City's economic needs. This is a "marriage ". The Navy has the OPNA V Instructions. The City has the State law. This process commenced approximately a year ago as the result of applications in the Transition Area. The OPNA V Instructions resulted in the Navy's oppositions to these applications. All applications in the western portion of the Transition Area and at the Oceanfront have been held in abeyance until the completion of this important process. Captain Thomas F. Keeley, USN, Commanding Officer - Naval Air Station Oceana, advised this document was produced by his staff and City representatives. The Statement of Understanding involved many meetings. The most important result of these efforts is the Navy and the City have learned to engage in a productive dialogue re the challenges of encroachment and incompatible development and to understand the respective issues and priorities. With the work on the Joint Land Use Study and subsequently the Statement of Understanding, the importance and differences of the respective regulations became immediately apparent. When questioned about development and land use, the Navy must give a reply that is wholly constant with the Instruction governing the Navy's Air Installation Compatible Use Zone programs. The hallmark of this Instruction is the principle that residential development in the areas of 65 decibels, "day and night, average sound level (DNL) " and greater, as designated on the Oceana AICUZ Map, is not compatible with airfield operations. Captain Keeley can never negotiate on this point. Similarly given the constraints of land use and zoning law, to those confronted by the City's position, there is no alternative but to allow "by right" development even when such development occurs in Accident Potential Zones or other undesirable areas, The hard fact remains that Ocean a is the most encroached upon Military Air Installation in the United States. This fact requires Captain Keeley to be all the more adamant when representing the Navy's position concerning encroachment. This fact causes the City to be confronted with very hard and perhaps politically difficult decisions. Above all, this fact significantly magnifies the consequences of pending future development and zoning decisions with respect to the long term operational assurance of Oceana. While the City makes the decisions determining land use around Oceana, it is the Air Station's Aviators and staff of today and tomorrow who must deal with them. The Navy has accommodated community sensitivities by changing flight paths, deviating from normal carrier operations and procedures. The Navy must also dedicate valuable personnel, time and money, interact with and educate the public when possible. Flying high performance jet aircraft and training to conduct carrier based operations remain very dangerous endeavors. Through the most stringent training and ever vigilant safety program, the Navy continually strives to reduce the hazards to an absolute minimum. However, the phrase "incompatible with airfield operations" refers TO more than just noise and quality of life concerns. At its root, it means maintaining an appropriate buffer between the community and the Navy's flight procedures and ensuring the safety of the public. For Virginia Beach, the responsibility to enact zoning that fulfills City objectives and promotes the health, safety and welfare of all the citizens is exclusively the City's. The City Council will have some very hard decisions to make in the coming months and years ifOceana is to remain the Master Jet Base on the East Coast. Oceana today is more than the Navy's alone. Ocean a supports and prepares for operations that are wholly planned and executed injointfashion (employing the personnel and equipment from all the services). Oceana supports a multitude of interagency Homeland Security missions. Captain Keeley viewed the Statement of Understanding as an important catalyst to form a new and productive relationship between the Navy and the City. The Joint Land Use Process between the Navy and Virginia Beach should never end. March 15, 2005 ~---- -4- JOINT LAND USE STUDY ITEM # 53696 (Continued) Mayor Oberndorf advised in the past, the Mayor and Vice Mayor have acted as Liaisons to work with the Navy and other Armed Forces year 'round re exchange of ideas and direction. Captain Keeley concurred with whatever procedure the Mayor established. The City Manager, as the third member of the Policy Committee recognized the previous dedicated work of the AICUZ Task Force, as well as the Navy and City staff (City Attorney Leslie Lilley; Deputy City Attorney William Macali; Robert Scott - Director of Planning; Tom Pauls - Comprehensive Planning, as well as the Hampton Roads Planning District Commission). The HRPDC has been the co-ordinator and administrator of the grant which commenced this process of the Joint Land Use Study. The Agenda and attached materials were distributed and are hereby made a part of the record. This information will also be available tomorrow, March 16, 2005, on the City's Web Page: www.vbgov.com. The City Manager introduced Robert Scott who reviewed the Agenda. Mr. Scott advised the remainder of the Agenda: Principals of Virginia Land Use Law Deputy City Attorney William Macali Updates and Progress to Date regarding: Proposed "Statement of Understanding' - City of Virginia Beach and U.S. Navy - Tom Pauls and Commander Lauterbach Summary of AICUZ Overlay Ordinance Provisions; Framework for further discussion Deputy City Attorney William Macali Current Disposition: AICUZTask Force Recommendations Tom Pauls - Comprehensive Planning Summary of Proposed City Actions from Proposed "Statement of Understanding" Robert J. Scott - Director of Planning JLUS Timetable - Past and Future Robert J. Scott - Director of Planning Deputy City Attorney Macali, outlined the Principles of Virginia Land Use Law. Land Use Terminolof!V: Use: Whenever a parcel of land is being usedfor, e.g., a residence, a retail store, a factory, etc. The City Zoning Ordinance (CZO) specifies which uses are allowed in any given Zoning District. If a use is not mentioned, it is not allowed in that Zoning District. By-Right Development: Development that the CZO allows without any need for specific approval by the City Council. By-Right uses are referred to in the CZO as "principle uses. " While certain approvals are still needed, they are ministerial in nature. March 15, 2005 -5- JOINT LAND USE STUDY ITEM # 53696 (Continued) Ministerial: Ministerial (as opposed to discretionary) approval is the type of approval that the City must give if certain requirements are met. Examples include site plans, subdivisions and building permits. Discretionary: A type of development that requires the approval of the City Council, either by rezoning or conditional use permit. The City Council has a great deal of latitude in approving or denying such matters Zoning District Classification: When people refer to the "zoning" of a piece of property, they mean the zoning district classification. In most cases, it is the single most important factor in how a property may be developed. Examples include A G-1, Agricultural, R -10 Residential, B-2 Community Business, etc. "Runs with the Land": The zoning of property stays the same even if the ownership of the property changes. Rezoning: A change in the zoning district classification of land, e.g., R-JO Residential to B-2 Community Business. It may only be done by the City Council. Conditional Use Permit: A type of discretionary approval of a specific use that, although allowed in the zoning district, requires special approval by the City Council. Examples include auto sales, cell towers and borrow pits. Principle #1: Zoning regulations must allow a Reasonable Use of property. This means that the zoning district classification (i.e. R-10, AG-1, B-2, etcetera) must also be reasonable. There is no requirement that the "highest and best use" of a piece of property be permitted. If more than one use is reasonable, it is entirely up to the governing body to decide which use or uses will be allowed. Mr. Macali cited an example: - suppose the zoning on a particular piece of property allows houses on lots of 15,000 square feet (R -15), but does not allow retail stores (B-2), and that both uses are reasonable. If the property owner seeks to have the property rezoned to allow grocery stores and the City Council denies the rezoning, the City Council's action will be upheld by the courts. These rules also apply to density, not just to different uses. If a property is zoned R-40 (roughly one house per acre), and R-40 zoning is reasonable, the City Council may decline to rezone the property to permit a higher density even if the higher density is more reasonable, A City Council action is "reasonable ", if the matter at issue is "fairly debatable. " An issue is 'fairly debatable ", if the facts and circumstances are such that objective and reasonable persons would reach different conclusions. Principle #2: Similarly situated properties must be treated similarly unless there is a rational basis for treating them differently. This principle derives from the Equal Protection Clause of the Constitution. The "rational basis" standard is a relatively easy one to meet. When the courts apply the rational basis standard to a challenged action, the action is usually upheld. A zoning ordinance does not violate equal protection guarantees ifit is reasonable and bears a rational relationship to a permissible governmental objective, Members of a governing body are often asked if granting an application will "set a precedent ", such that if the application is granted, would similar applications in the future have to be granted. Although every zoning action provides a precedent of some kind, rarely is a governing body legally bound by a prior action, The keys are whether properties "similarly situated" and, if so, whether there is a rational basis for treating them differently. Adjacency is always relevant to the question of discriminatory zoning, but adjacent properties may be zoned differently when there is a rational basis for the different classifications, March 15, 2005 - 6- JOINT LAND USE STUDY ITEM # 53696 (Continued) Principle #3: Land Use decisions of the City Council are presumed valid when challenged in Court. The burden of proof is on the party challenging the City's action to prove that it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals or general welfare. Courts will not substitute their judgment for that of a legislative body, and if the reasonableness of a zoning ordinance (including a decision on a rezoning or conditional use permit application) is fairly debatable, it must be sustained. Courts apply the "fairly debatable" test to both rezoning and conditional use permit applications. If a City Council action is fairly debatable, the Courts will uphold it. Principle #4: The Comprehensive Plan confers NO Rights of Development. It is the City Zoning Ordinance, not the Comprehensive Plan that determines development rights. The Comprehensive Plan is simply a blueprint that guides, but does not determine, the course of development within a City. The Comprehensive Plan may be amended by a locality at any time to increase or decrease recommended density or intensity of uses. Principle #5: A "Vested Right" is a right to develop property that is "immune" from Changes in the Zoning Ordinance. If an individual has a vested right to develop property for a certain use, it means that he can develop the property for that use even if the zoning ordinance is later changed so that it no longer permits that use. If the zoning of a certain property allows a particular use on it, the property may be developed for that use. However, if the zoning ordinance changes so that the use is no longer permitted, the property owner must comply with the new ordinance, unless he has a vested right to that use. There are two ways in which rights to a certain use of property vest: If the use is already established by the time an ordinance changes, the use is "legally nonconforming" and may be continued (but not necessarily expanded, enlarged, et cetera) If the City approves a specific project and the property owner diligently pursues the specific project in reliance on the approval by incurring extensive obligations or substantial expenses, he may develop the property in accordance with the approval. Vested rights "run with the land". The rights apply to the property, not to the owner. Commander John Lauterbach and Tom Pauls reviewed the Proposed Statement of Understanding - City of Virginia Beach and United States Navy. Representatives of the us. Navy, Naval Air Station Oceana and the City of Virginia Beach together, comprising the Joint Land Use Study Sub-committee formed on February 10,2005, have reached an understanding that: The meetings and discussions engaged in by the Joint Land Use Study Subcommittee represent the most frank and in-depth dialogue concerning encroachment and incompatible development to have ever taken place between the Navy and the City. The Navy and the City will engage in a continuing dialogue. From this point forward any person, persons or those persons representing any group or organization proposing development that is incompatible with ChiefofNaval Operations Instruction 11010.36B of 19 December 2002, Air Installations Compatible Use Zones (AICUZ) Program or otherwise encroaches upon NAS Oceana and its environs, will be requested by the City to meet with Navy officials. March 15, 2005 - 7 - JOINT LAND USE STUDY ITEM # 53696 (Continued) The Navy and the City understand the value of developing a process whereby the Navy will be informed of, and afforded an opportunity to comment upon, all development that may be incompatible with military operations. With regard to the responsibilities of, and the actions by, the Navy and the City regarding the effort to restrain encroachment and incompatible development: The Navy and the City both understand any opinion expressed by the Navy concerningproposed development must be wholly in accordance with Chief of Naval Operations Instruction 11010.3 6B of 19 December 2002, Air Installations Compatible Use Zones (AICUZ) Program The City understands the Navy's position is now, and has been, that residential development in areas of 65 dB DNL and greater is discouraged and that this position is in accord with the AICUZ program. The Navy acknowledges the responsibility for enacting, amending, repealing and otherwise developing and promulgating zoning ordinances, codes and laws lies solely within the City, subject to statutory and constitutional requirements, The Navy acknowledges under Vi.rginia law, property owners may not be denied reasonable use of their property and may develop their land without approval by the City Council in accordance with established zoning regulations. The Navy and the City acknowledge they differ in their application of "residential density". The Navy uses "residential density" to refer to the number of dwelling units in a defined area actually in existence at the time that area is discussed. The City uses the term "residential density" to refer to the number of dwelling units in a defined area that would exist if that area were developed to the extent allowed by existing zoning. The General Assembly has enacted legislation requiring disclosure in any sale or lease of residential real estate. All disclosures pertaining to Navy aircraft operations contained in any type of real estate or business transaction or agreement must be written in a straightforward, clear and otherwise unambiguous manner. In this regard, the Navy and the City agree to immediately initiate a working group to work in conjunction with the Virginia Real Estate Board to review and, if necessary, re draft all disclosures currently in use, and to det.ermine whether there exist any instances where disclosures are needed where none now are employed. March 15, 2005 -8- JOINT LAND USE STUDY ITEM # 53696 (Continued) The City has instituted an effective residential sound attenuation program and legislation allowing it to expand this program to certain non-residential uses has ben enacted by the General Assembly. Personnel associated with the program must be fully aware of the varying efficacy of sound attenuation practices, as measured by sound transmission class indicators, when confronted with different sound frequencies generated by Navy aircraft. Greater effort will be made to educate the public, in general, and property owners, in particular, regarding the difference between average noise designations shown on the AICUZ map and event noise experienced in real life, The Navy and the City agree to work collaboratively to assist each other in matters of technical information and instruction in this regard. With regard to the U.S. Navy and NAS Oceana: NAS Ocean a is the most encroached upon military airfield in the United States. Encroachment has occurred since the installation's inception and includes the type of high density, residential and commercial development that now threatens the viability of the station's mission. NAS Ocean a officials have discouraged incompatible development around the station since at least the 1960's. During the late 1970s and early 1980s, the Navy and the federal government undertook a program to buffer the installation from encroachment by purchasing property outright and by purchasing and acquiring easements on surrounding properties in the form of development rights. The Navy acquired these property interests publicly, sometimes in coordination with initiatives of the City of Virginia Beach Development Authority. With respect to accommodating the sensibilities of the surrounding communities, NAS Oceana officials have voluntarily modified flight arrival and departure procedures. These modifications have resulted in flight procedures/training that do not replicate actual aircraft carrier operating procedures NAS Oceana is a pre-eminent Navy installation. It is also now, however, a vital component in the architecture of the Defense Department's joint service method of operational planning and execution and in the newly-emergency inter-agency approach to meeting homeland defense requirements. With regard to the City of Virginia Beach and AICUZ related initiatives: The City, since adopting its first Comprehensive Plan in 1979, has worked with the Navy to ensure the initiatives of the AICUZ program have been included in each subsequent plan amendment. March 15, 2005 -9- JOINT LAND USE STUDY ITEM # 53696 (Continued) Before the revision of the OPNA V Instruction in December 2002, the City made adjustments to the City Zoning Ordinance to bring land use regulations more in line with the requirements of the AICUZ Program. The City relocated two (2) schools to conform to the Draft F/A - 18 C/D Environmental Impact Statement. The City secured state enabling legislation requiring sound attenuation in residential structures and has implemented an effective residential sound attenuation program. In 2005, proposed legislation requiring Noise Zone/APZ disclosures in all residential real estate transactions and requiring sound attenuation in certain non-residential structures was enacted by the General Assembly. With regard to the City of Virginia Beach and the Oceanfront area: The establishment of a first class resort at the Oceanfront is a strategic priority for the City. The principal initiative in this regard has been the investment in the new 19'h Street Convention Center. This project is expected to be followed by the adoption of an Old Beach District Plan, as well as a revised Oceanfront Resort Area Concept Plan, updating the Plan that was adopted in 1994. As a result of these initiatives, the City is a major competitor in the tourist and convention industry and strives to maintain its standing. The overall aspiration is the rejuvenation of the Oceanfront into an area containing neighborhoods and businesses more compatible with a first-class resort and convention destination, consistent with the principles of the Comprehensive Plan. To this end, public and private investment - both in the hundreds of millions of dollars - in the Oceanfront are intended to catalyze further community revitalization and economic growth. The retail presence in the Oceanfront area consists of many more seasonal than year-round businesses. The City believes that seasonal businesses alone do not support the vision of a "first-class resort" and convention destination. Accordingly, when the Oceanfront Resort Area Concept Plan is revised, City officials intend to include a reasonable increase in the number of residential units in the Oceanfront area, a number sufficient to support quality year-round retail development. The number is anticipated to be less than the aggregate additional number of units allowed by current area zoning. The current number of units in this area of the City is approximately 7,000. Under current zoning, the maximum number of units allowed is more than double this figure, approximately 16,000. March 15, 2005 -10 - JOINT LAND USE STUDY ITEM # 53696 (Continued) The City understands the Navy is deeply concerned about the impact of aircraft operations on the proposed development of the Resort Area. The City will address these concerns to the greatest extent possible by inviting the Navy, as well as other stakeholders to participate in the process of drafting the Resort Area Concept Plan. The City recognizes that, in order to meet the objectives of both the City and the Navy, the applicable zoning regulations must be totally restructured. Among the City's objectives is an increase in the number of residential units currently existing, but substantially less than currently allowed. With regard to the City of Virginia Beach and the western portion of the Transition area, i.e. that portion of the Transition Area west of West Neck Creek, also known as the Interfacility Traffic Area: Both the Navy and the City understand the importance of this portion of the Transition Area in any discussion of encroachment in two (2) key regards, This area is largely undeveloped and thus presents the best opportunity to prevent, to the greatest degree possible, further incompatible development; and, this area lies beneath the airspace most commonly used by Navy aircraft not only arriving but departing from NAS Oceana and NALF Fentress at lower altitudes. With regard to particular means to restrain encroachment and incompatible development inside the Transition Area, the Navy acknowledges the Virginia Beach Comprehensive Plan now contemplates development with residential density not to exceed one residential dwelling unit per developable acre, but withfew exceptions current zoning does not allow this density. The Navy and City further acknowledge that according to AICUZ restrictions, residential development in areas of65dB DNL and greater is not compatible with airfield operations. The City proposes the following for those portions of the Interfacility Traffic Area that lie within the greater than 75 dB DNL Noise Zone: the City reaffirms existing planning policy that no additional residential units above those allowed by right should be permitted. In Agricultural Zoning Districts, the maximum by-right density is one residential lot per 15 acres of land. For those portions of the Interfacility Traffic Area that lie within the 70-75dB DNL Noise Zone, the City will amend its Comprehensive Plan to reflect the need to retain predominantly agricultural zoning, in which residential density not exceeding one dwelling unit per five (5) acres is allowed by conditional use permit. For those portions of the Interfacility Traffic Area that lie within the 65-70 dB DNL Noise Zone, the Comprehensive Plan will continue to contemplate residential density not exceeding one (I) unit per developable acre. The Navy and the City acknowledge that preserving undeveloped property in the Transition Area is a major priority. Any initiatives of other agencies that advance mutually beneficial outcomes, including environmental protection and wetland mitigation, should be vigorously explored. March 15, 2005 - 11 - JOINT LAND USE STUDY ITEM # 53696 (Continued) With regard to other AICUZ-related issues: The Navy and the City recognize by-right development sometimes results in development that is incompatible with military operations The Navy acknowledges the City has certain legal responsibilities regarding by-right development and that, in such cases, review and approval is ministerial, not discretionary. In those cases in which development is not "by right ", thus requiring approval City Council, the Navy also acknowledges the City must permit a reasonable use of the property. The Navy and the City recognize transportation is an issue of significant concern. Further development contemplated in the Comprehensive Plan will require a range of alternative transportation improvements, which are recommended as part of the Master Transportation Plan. The Navy and the City believe strategic growth management plans should focus on three (3) approaches concerning transportation. Public facility improvements are prioritized and implemented as quickly as possible per available federal, state and local funds so that adequate public facilities and services are available before, during and immediately after development to accommodate inter-installation movement by large vehicles. Growth and development are oriented to appropriately designated areas; and, the public and the Navy are effectively involved in any planning process. Deputy City Attorney Macali summarized the proposed framework of the AICUZ Overlay Ordinance. He advised the purpose is to provide a framework for further discussion concerning the specific means to accomplish the overall objective of protecting the public health, safety and welfare and to prevent encroachment from degrading the operational capability of local military installations in meeting national security needs. This proposal contemplates the adoption of land use regulations that allow reasonable land use compatible with noise levels and accident potential association with flight operations at NAS Oceana, Deputy City Attorney Macali displayed a slide depicting the 1999 AICUZ Map. The City will establish an AICUZ Overlay District in all Noise Zones other than < 65 dB DNL (per 1999 AICUZ Map). The Overlay will be comprised of the same areas that are on the 1999 AICUZ Map (Noise Zones 65-70, 75-75 >75 db DNL and Clear Zone, Accident Potential Zone 1 and Accident Potential Zone 2). In general, the regulations of the Overlay District would be the least restrictive in the lowest Noise Zones and graduate to more restrictive levels in high noise zones, with greatest restrictions being in the Accident Potential Zones and Clear Zones. The Navy and the City agree that, under the AICUZ program, residential development in areas of 65 dB DNL and greater is not compatible with airfield operations. March 15, 2005 - 12- JOINT LAND USE STUDY ITEM # 53696 (Continued) The Navy disagrees with the City's allowing any further incompatible development. However, with the exception of by-right development, and those portions of Virginia Beach that lie within the 65 to 70 dB DNL sound contour, incompatible projects will only be approved after the City determines that no other reasonable development options that are compatible with the AICUZ program exist. The AICUZ Overlay regulations represent the City's best efforts to balance the needs of the Navy in fulfilling its mission with the rights of citizens to make reasonable use of their property. The regulations will ensure that, in cases in which incompatible development is approved by the City Council, it will be the lowest reasonable density; and, appropriate sound attenuation measures will be required. The overall effect of the application of the Overlay regulations will be to bring the City's development policies into a much higher degree of conformity with the Navy's AICUZ program than they ever have been, even under the prior OPNA V Instruction. Deputy City Attorney Macali distributed Table 2 - Air Installations Compatible Use Zones (suggested land use compatibility in noise zones) and displayed a slide of Table 3, which makes recommendations concerning land use compatibility and Accident Potential Zones. Each table lists various land uses and, with respect to each Noise Zone or APZ, designates each use as either: Y (compatible w/o restrictions) N (not compatible) y* (compatible, with restrictions) N* (not compatible, with restrictions) The tables are not binding, but are simply recommendations. With certain exceptions the restrictions would generally correspond with the recommendations set forth in Table 2 and Table 3. These exceptions include: By-right development Development in the 65-70 dB DNL Noise Zone In each of the above situations, development would be subject to sound attenuation requirements, but there would be no additional restrictions on the uses a/lowed, 70-75 and >75dB DNL Noise Zones: Discretionary development (i.e., needing a rezoning or conditional use permit) would be allowed only if it is compatible or conditionally compatible with the AICUZ recommendations in Table 2 and/or Table 3. If not compatible or conditionally compatible, such development would be allowed only if the City Council makes a finding that no other reasonable development options exist that are compatible with the AICUZ recommendations. In such cases, development must be at the lowest density or intensity that is reasonable, as determined by the City Council. March 15, 2005 - 13- JOINT LAND USE STUDY ITEM # 53696 (Continued) Special Areas: Western Portion of Transition Area (Interfacility Traffic Area) 65-70 dB DNL Noise Zone: Current zoning and Comprehensive Plan provisions retained. 70-75 dB DNL Noise Zone: Residential development requiring City Council approval, i. e., rezoning or by Conditional Use Permit allowed at a density no greater than one (1) dwelling unit per five (5) acres of developable land. >75 dB DNL Noise Zone: Residential development limited to one (1) dwelling unit per fifteen (15) acres of developable land unless the City Council determines that such density is unreasonable and that no other use (non-residential) is reasonable. In such a case, allowed density would be the minimum reasonable density. Where the subject property lies within more than one Noise Zone, dwelling units must be located in lower Noise Zones if practicable. Resort Area The total number of residential units will not exceed the aggregate number of units allowed under current zoning. The City will endeavor to work with all stakeholders to reduce the number of residential units significantly below that number through zoning ordinance amendments. The Navy shall be among the stakeholders involved in the revision of the Oceanfront Resort Area Concept Plan dated June 28,1994. The AICUZ Overlay Ordinance would represent a significant increase in the extent to which AICUZ- related considerations govern land use decisions in Virginia Beach. It would also ensure that, in cases in which development may not be recommended by the AICUZ guidelines, the approval by the City Council will be at the lowest reasonable density or intensity. The overall effect of the application of the AICUZ Overlay Ordinance would be to significantly increase the extent to which the City's development policies conform to the recommendations of the AICUZ program. Tom Pauls reiterated the AICUZ Task Force recommendations (remaining 22 points). Disposition of Points 1 through 9 and 15 to be addressed through the proposed Statement of Understanding or in the further development of the Comprehensive Plan's Policies or the proposed AICUZ Overlay Ordinance. 1. Address land use compatibility issues in the following areas of priority: Accident Potential Zones Highest Noise Zone Other Noise Zones 75dB + < 75dB -14 - JOINT LAND USE STUDY ITEM # 53696 (Continued) 2. Assemble a Resort Area Master Plan that includes jet noise and accident potential among the range of key factors. Plan to achieve the following: Recognize need to redevelop the area Continued prosperity of tourist industry and conventions industry Capitalize on construction of new convention center Add 3,000 more residential units to area Curtail development in the APZ's to match OPNA V Instruction guidelines 3. Amend zoning ordinance to remove hotels and motels and possibly other defined uses as principal or conditional uses in the industrial districts or office districts where impacted by greater than 65dB 4. Infill development clearly defined and allowed in Primary Residential Areas 5. No residential density increase in noise zones greater than 75 dB DNL, except per infill rules. 6. Residential rezonings in noise zones greater than 70 dB DNL held to lowest reasonable density given nature of surrounding development. 7. Amend zoning ordinance to encourage cluster development where AICUZ lines cross individual properties. 8. Allow expansion of existing places of worship in the AICUZ area and advise against construction of new facilities. Neither should be allowed in APZ'S. 9. No increase in intensity of use in APZ'S when not in accord with the OPNA V Instructions. 15. Retain the Comprehensive Plan for the part of the Transition Area less than 75dB to keep density at no greater than one (1) dwelling unit per acre. The. Comprehensive Plan has never indicated that residential use is appropriate in noise zone > 75dB. Disposition of Points 10, 12, 13, 14, 16, 17, 18,21,22: To be addressed through recommendations cited in the Hampton Roads Joint Land Use Study 10. Establish a Virginia Beach Redevelopment Strategy 12. Assemble funding packages of state, federal and local funds to purchase from willing sellers affected property for open space in the greater than 70dB area within the Transition Area March 15, 2005 - 15 - JOINT LAND USE STUDY ITEM # 53696 (Continued) 13. City of Virginia Beach to seek adjustments in or expansion of Open Space, Agricultural Reserve and other programs to target portions of related funds for the purpose of acquiring land within defined geographic corridor in the Transition Area. 14. City of Virginia Beach and other affected Hampton Roads localities to seek federal fundi,ng source for purchase of certain conservation lands. 16. City of Virginia Beach to take the lead requesting a regional briefing by the FAA on selective application of FAR Part 150 provisions. 17. Provide public access to regionally approved JLUS via Navy website and the City of Virginia Beach related elements via VBGOV.com. 18. Continue to include the Navy in school site selection decisions. 21. Conduct a series of workshops and provide website information to increase public education of existing airport noise ordinance. 22. Establish administrative processes to assist the Navy in enforcing the terms of its restrictive easements. Disposition of Points 19 and 20: Real Estate disclosure and noise attenuation for commercial properties being addressed through General Assembly action and recommendations in the Hampton Roads Joint Land Use Study. 19. City of Virginia Beach and other affected Hampton Roads localities to pursue real estate disclosure of AICUZ and APZ zones to be part of the Multiple Listing Service data base. 20. Request General Assembly to enable local governments to require interior noise attenuation for certain non-residential structures. Disposition of Point 11. Declined by General Assembly. No longer under consideration 11. Seek state enabling legislation to allow transfer of development rights to other parts of the Transition Area. Robert Scott detailed the Summary of Proposed Actions: AICUZ Review Processes: The City would create a new process for Navy officials to review and comment earlier in the process on all proposed development that might encroach on NAS Oceana March 15, 2005 - 16- JOINT LAND USE STUDY ITEM # 53696 (Continued) The City would ask any person or organization proposing development that might be incompatible with the Navy's air Installations Compatible Use zones (AICUZ) to meet with Navy officials to discuss alternatives. Zoning Ordinance Changes The City would consider fundamental changes in the zoning ordinance to substantially reduce the number of residential units allowed by current zoning in the Resort Area. The City would adopt a Zoning Overlay District in all noise zones greater than 65 dB DNL to help prevent encroachment at NAS Oceana. The City would recognize the importance of NAS Oceana 's Interfacility Traffic Area in the City's Transition Area by: Retaining agricultural zoning of one residential lot per 15 acres in the highest noise zone, 75 dB DNL and above. Amend the Comprehensive Plan to retain residential density not to exceed one (1) dwelling per five (5) acres in the 70-75 dB DNL noise zone, as allowed by a Conditional Use Permit. Limit density to one dwelling per acre in the 65-70 dB DNL noise zone. Sound Attenuation and Disclosure: Based on legislation passed by the General Assembly at the request of the City, sound attenuation laws would be expanded to certain non-residential uses and disclosures of noise and/or accident potential zones would be improved for the sale or lease or residential units. The City would initiate a working group with NAS Oceana to work with the Virginia Real Estate Board to review, and possibly revise, all disclosures currently in use for noise and/or accident potential zones and determine where disclosures might be needed where none are used now. Strengthened Working Relationship: The City would recognize the Navy's significant concern about the impact for future development on transportation needs by agreeing to keep the Navy effectively involved in such planning processes. The City would continue to include the Navy as a vital stakeholder in revising the Oceanfront Resort Area Concept Plan. The City would strengthen its working relationship with the Navy and create an ongoing, open dialogue to address the Navy's concerns about potential encroachment at NAS Oceana. Councilman Reeve advised re a Navigation Easement, in a high noise area, which would allow the Federal Government Department of Defense to have full use of the air space over a particular piece of property. This easement would go with the property. Commander Lauterbach advised these proffers were included voluntarily by a developer in Chesapeake. The proffers include a Navigation Easement and a covenant not to sue the Government re noise or sound related issues. March 15, 2005 -17 - JOINT LAND USE STUDY ITEM # 53696 (Continued) TIMETABLE PAST AND FUTURE Past Sessions: 08/23/94 City amends Zoning Ordinance to include AICUZ provisions 12/19/02 Operational Navigation Instruction (OPNA V) released by Department of Defense 02/25/03 City Council adopts TATAC (Transition Area Technical Advisory Committee) Recommendations 04/2003 OPNA V Instructions Briefing to City Council 12/02/03 Virginia Beach Comprehensive Plan adopted 12/09/03 City Council establishes AICUZ Task Force 01/06/04 City commits to participate in the Joint Land use Study 01/04 through 12/04 JLUS Meetings, Workshops and Open Houses are held 01/03/05 AICUZ Task Force Public Meeting (24 points presented and recommended) 01/04/05 City Council receives briefing - recommendations from AICUZ Task Force 0J/18/05 City Council Public Hearing on JLUS 01/25/05 Eminent Domain in Accident Potential Zones (APZ) removed from recommendations 01/31/05 Public Town Hall Meeting (Advanced Technology Center) 02/02/05 Public Town Hall Meeting (Virginia Beach Fire Training Academy) 02/08/05 Voluntary Purchase of properties in APZs removed from recommendations 02/10/05 JLUS Regional Policy Committee Meeting creates the Virginia Beach & u.s. Navy Subcommittee 03/10/05 Regional JLUS Policy Committee Meeting agreement on revised timeline through April 7 Current Session: 03/15/05 City Council- Joint Land Use (JLUS) Workshop Briefing Future Sessions: 03/17/05 Public Information Forum - 6:30 P.M. at Advanced Technology Center 03/22/05 City Council Public Hearing on JLUS 04/05/05 City Council provides direction to the JLUS Policy Committee Liaisons 04/07/05 Regional JLUS Policy Committee meeting. Provide direction to EDA W to prepare FINAL DRAFT JLUS 04/18/05 Receive Final Draft JLUS from EDA W 04/21/05 Regional JLUS Policy Committee Meeting - Vote on JLUS 04/26/05 City Council Briefing on JLUS 05/03/05 City Council Public Hearing on JLUS 05/10/05 or OS/24/05 City Council vote on JLUS 06/05/05 Begin City process on affecting Comprehensive Plan and AICUZ Overlay Ordinance March 15, 2005 -18 - JOINT LAND USE STUDY ITEM # 53696 (Continued) Mr. Pauls advised, re other directives coming forward, he understands and the Army has an ICUZ (Installations Compatible Use Zones) as opposed to AICUZ (Air Installations Compatible Use Zones) Ordinance that applies to Army related noise impacts i.e. artillery Captain Keeley advised the only similarities between the Joint Land Use Plan (JLUS) and the Base Realignment and Closure Commission (BRAC) are they both havefour-letteracronyms. In no way, shape or form are the two connected. The Joint Land Use Study provides a framework to allow communities and military installations to dialogue re issues of development which may cause encroachment, ^tf~~~z" 1" ?nn" - 19- CITY COUNCIL COMMENTS ITEM # 53697 Mayor Oberndorf referenced correspondence from Sheriff Paul J Lanteigne concerning the security status of the Virginia Beach Courts. The Commonwealth of Virginia operates a "State Court" system where localities are divided into Circuits. The City of Virginia Beach and the counties of Accomack and Northampton comprise the Second Judicial Circuit. As a State court system, the City relies on the General Assembly for funding. The State is responsible for funding various functions of government. In many of those areas, fundingfrom the State is deficient. Said letter is hereby made a part of the record. ITEM # 53698 Councilman Schmidt distributed a proposed Resolution requesting Governor Warner VETO Senate Bill 1054 re offshore natural gas surveying, exploration, development and production (Sponsored by Mayor Oberndorf and Councilman Schmidt). Councilman Schmidt requested this Resolution be reviewed and scheduled for the City Council Session of March 22, 2005, March 15, 2005 - 20- ADJOURNMENT ITEM # 53699 Mayor Meyera E. Oberndorf DECLARED the City Council Workshop ADJOURNED at 8:20 P.M. UJ~___~_!{~~&d Beverly 0. Hooks, CMC Chief Deputy City Clerk uth Hodges Smith, MMC City Clerk ~~~~-~ Mayor City of Virginia Beach Virginia March 15, 2005