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MARCH 24, 2009 <III CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR WILLIAM D. SESSOMS JR. , At-Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 GLENN R. DA VIS, Rose Hall - District 3 WILLIAM R. DeSTEPH, At-Large HARRY E. DIEZEL, Kempsville - District 2 ROBERT M. DYER, Centerville - Distrlct I HARBARA M. HENLEY, Princess Anne District 7 JOHN E. UHRIN, Beach District 6 RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER JAMES K SPORE CITY A ITORNEY - MARK D. STILES CITY ASSESSOR . JERALD BANAGAN CITY AUDITOR LYNDON S. REMIAS CITY CLERK- RUTH HODGES FRASER, MMC CITY COUNCIL AGENDA CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-9005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: ctycncl@vbgov.com 24 MARCH 2009 CITY MANAGER'S BRIEFING - Conference Room - 3:00 PM A. INTERIM FINANCIAL STATEMENT Patricia Phillips, Director- Finance B. PARKING SYSTEM RATES James Ricketts, Director - Convention & Visitors Bureau (CVB) I. CITY COUNCIL COMMENTS II. CITY COUNCIL AGENDA REVIEW V. INFORMAL SESSION - Conference Room - 4:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION II I Kr. FORMAL SESSION AGENDA - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend John O. Ponder Pastor, Abundant Grace Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS March 10, 2009 G. AGENDA FOR FORMAL SESSION H. PRESENTATION OPERATING and CAPITAL BUDGETS FY2009-201O Catheryn Whitesell, Director-Management Services 1. PUBLIC HEARINGS 1. SALE OF EXCESS CITY PROPERTY 2245 Reuben Street - Gatewood Park 2. LEASE OF CITY OWNED PROPERTY - Farmers Market a. Andrew Skipper, t/a Homegrown Country Market re: Space #10 b. Paul and MaryJean Reid, t/a MaryJean's Bakery re: Space #11 1. CONSENT AGENDA III1 J. ORDINANCES/RESOLUTIONS 1. Ordinances re City Code: a. AMEND S21-322 and 21-324 re: Parking Meter Rates b. AMEND Chapter 5 re: Animals and Fowl c. REPEAL S33-131 re: Newsracks 2. Ordinance to REVISE the City Council Policy re: Time Limits for Speakers at City Counci Meetings on the first meeting of each month. 3. Ordinance to DECLARE City-owned land as excess property re: 2245 Reuben Street to Tammy McClenney and AUTHORIZE the City Manager to convey the property. DISTRICT 6 - BEACH 4. Resolution to COMMEND the Virginia Beach Restaurant Association, Matt Falvey, and Laura and Kal Habr re: successful efforts in supporting State Legislation to Prohibit Smoking in Restaurants. 5. Resolution to AUTHORIZE the Virginia Beach School Board to submit the Loan Application to the Virginia Board of Literary Fund re: construction of Great Neck Middle School. 6. Ordinance to AUTHORIZE the extension of the Pilot Program re: Horseback Riding on the Beach and AUTHORIZE the City Manager to execute an Amended Franchise Agreement. DISTRICT 6 - BEACH 7. Ordinance to AMEND the Open Air Cafe Regulations re: allowing open air cafes in the Resort Gateway Corridors and West of Pacific Avenue. 8. Ordinances to AUTHORIZE the City Manager to execute leases of City-owned property for three (3) years at the Virginia Beach Farmers Market: a. Andrew Skipper t/a Homegrown Country Market re: Space #11 b. MaryJean Reid t/a MaryJean's Bakers re: Space #10 DISTRICT 7 - PRINCESS ANNE II I 9. Ordinance to AUTHORIZE a temporary encroachment into a portion of City owned property- Canal No.2 - for OCEANA DEVELOPMENT, L.P. and OCEANA DEVELOPMENT, LLC, to construct and maintain adequate drainage. DISTRICT 6 - BEACH 10. Ordinance to ESTABLISH Capital Project #3-143; and, ACCEPT and APPROPRIATI $4,000,000 from the United States Department of Homeland Security re: Urban Area Securit: Initiative (UASI) Interoperable Communications Technology Grant - Phase II. K. PLANNING 1. Application of SCOTT and DALE BANNING for a Nonconformim! Use re alterations an additions to a garage apartment at 114 54th Street. DISTRICT 6 - BEACH RECOMMENDATION: APPRO V AL 2. Application of BRUCE and ELIZABETH HEDLUND for a Variance to the Subdivision Ordinance re subdividing the property at 5711 Lancelot Drive into two (2) single-family hom sites. DISTRICT 2 - KEMPSVILLE RECOMMENDA nON APPROVAL 3. Application of ROBERT H. JOHNSON for a Variance to the Subdivision Ordinance re subdividing the property at 1601 Virginia Beach Boulevard into two (2) single-family home sites DISTRCT 6 - BEACH RECOMMENDATION APPROV AL 4. Application of MCRJERS, LLC for the closure of a portion of Windsor Crescent at 3868 Jefferson Boulevard. DISTRICT 4 - BA YSIDE RECOMMENDA nON APPROVAL 5. Application of TOWN CENTER ASSOCIATES, L.L.C. for the closure of a portion of Market Street at the intersection of Market and Columbus Streets DISTRICT 5 - L YNNHA VEN RECOMMENDA nON APPROVAL III 6. Application of TOWN CENTER BLOCK 10 APARTMENTS, L.P., for a Conditional Use Permit re allow a public or private college or university on the first floor of The Cosmopolitan Apartments at 4544 Columbus Street. DISTRICT 5 - L YNNHA VEN RECOMMENDA nON APPROVAL 7. Application of REGENT UNIVERSITY for a Conditional Use Permit re development oftwl (2) student dormitory buildings and a dining hall at 1352 and 1354 Regent University Drive. DISTRICT 1 - CENTERVILLE RECOMMENDA nON APPROVAL 8. Application of STUDIO BAMBOO INSTITUTE OF YOGA for a Conditional Use Permit re yoga at 2865 Lynnhaven Drive. DISTRICT 5 - L YNNHA VEN RECOMMENDA nON APPRO V AL 9. Application of JULIE COLEMAN - ZEN HOT YOGA for a Conditional Use Permit re yoga at 3352 Princess Anne Road, Suite 901. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL 10. Applications of DANIEL J. BLEVINS at 920 Military Highway: a. Modifications of Conditions Nos. 1 and 5 re increase the number of units per acre fron 18.5 units to 19 (approved by City Council on October 9,2007) b. Change of Zoning District from A-24 Apartment District to B-2 Community Business re elimination of split zoning that currently exists DISTRICT 1 - CENTERVILLE RECOMMENDA nON APPRO V AL 11. Application ofFLORIDAYS, L.L.c., for a Change of Zoning from R-7.5 Residential to Conditional A-24 Apartment District re constructing a sixteen (16) unit townhome-style community at 4303 Bonney Road DISTRICT 5 - L YNNAHVEN RECOMMENDATION APPROVAL II I III 12. Application of HARMONY INVESTMENTS, INC. FOR a Change of Zoning from 1-1 Ligh Industrial District to Conditional A-36 Apartment District re developing Two Hundred Twenty-Four (224) multi-family dwellings, parking, landscaping, leasing office, clubhouse and pool at 5321 Greenwich Road. DISTRICT 2 - KEMPSVILLE RECOMMENDA nON APPROVAL L. UNFINISHED BUSINESS M. NEW BUSINESS N. ADJOURNMENT PROPOSED RESOURCE MANAGEMENT PLAN FY 2010 BUDGET WORKSHOPS April 7 April 14 April 21 April 23 April 28 MayS May 12 Workshop Workshop Workshop Public Hearing (changed from April 16) Workshop and Public Hearing Reconciliation Workshop Public Hearing for Adoption Council Conference Room Council Conference Room Council Conference Room Green Run High School- 6 p.m. Council Chamber - 6 p.m. Council Conference Room Council Chamber - 6 p.m. ********* If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 *********** f'\genda 03/24/2009.atb www.vbllov.com II I - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia March 24,2009 Mayor William D. Sessoms, Jr., called to order the CITY MANAGER'S BRIEFING re Interim Financial Statement in the City Council Conference Room, Tuesday, March 24,2009, at 3:00 P.M Council Members Present: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva and James 1. Wood Council Members Absent: Barbara M Henley [Entered: Formal Session - 6:00 P.MJ Rosemary Wilson [Entered: 3:10 P.MJ March 24, 2009 I1I1 - 2 - CITY MANA GER 'S BRIEFING INTERIM FINANCIAL STATEMENT 3:00 P.M. ITEM # 58624 The City Manager introduced Patricia Phillips, Director - Finance, to present the Interim Financial Statement (July 1, 2008 through February 28, 2009). Patricia Phillips was accompanied by Don Barnett, Comptroller, and Loretta Brown, Administrative Assistance, 100% ~ 80% ,. c .. > ~ ~ 60% ! c .. 400/0 ~ .. ... 20% Overview General Fund FY 2009 Revenues FY 2009 Expenditures Projections Water and Sewer Fund Next Steps FY2009 Year To Date General Fund Revenues Compared to Historic Trend February 28. 2009 100.00/0 0% Jul Oct Nov Dee Jan Mc:>.o:".~".... Feb Mar Apr May Jun Aug Sep --+- Historic Trend -- Percent of FY09 Budget March 24, 2009 III1 - 3 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) FY 2009 - General Fund Revenues ~ Total Revenues are $529.8-MILLION - 49.5% ~ Ahead on 3-yr average (49.3%); compared to 2008 (49.6%) ~ Many items are on a 2-month lag ~ Business License Tax (BPOL) due in March ~ Personal Property tax due June 5 ~ Interest rate environment* ~ Economy FY 2007 FY 2008 Bud et $ 963.6 $1,026.4 IN MILLIONS Actual $ 970.2 $1,018.4 Variance $ 6.6 $ 8.0 The City is collecting only l-Y2% to 2% on investments. Building permits are down substantially. Real Estate Revenues February 28, 2005 - 2009 $600.0 $500.0 l: $400.0 ~ :i '" "' " $300.0 ::l l: " li 0: $200.0 $100.0 $0.0 FY 2005 100.0% FAVORABLE TREND Budget $479.2 - -- $474 - - -- -- -- -- -- --- 90.0% 80.0% FY 2006 FY 2007 70.0% "' l: 0 60.0% j 53.2% '0 50.0% 0 ii 40.0% ~ '6 ~ 30.0% 20.0% 10.0% 0.0% FY 2008 FY 2009 -0--;0 of Total __ Annual Collections _ YTD $254.9-MILLION has been collected in Real Estate Revenues 9FY 2009). This item is expected to be "over budget". Only $15.5-MILLION in Personal Property Taxes has been collected. March 24, 2009 II II - 4 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) Personal Property Taxes - Local (excludes PPTRA) February 28, 2005 - 2009 $100.0 100.0% $90.0 .......................TJNFAVORABLE..TREND.................J.l.'!~~!!........ ........................................................ .-............................... ~.~~:~.........- $80.0 $30.0 75.0% $70.0 ~ :i tit ill ::J C ! $60.0 r! o j ......... 50.0%;3 ~ 'Ii ~ $50.0 ... $40.0 $20.0 $10.0 ... $0.0 0.0"10 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 ~Annual Collections _YTO -<:-%ofTotal PERSONAL PROPERTY TAX RELIEF ACT (PPTRA) - STATE . Projected Schedule for FY2009 · 1st payment, November 15th, 2008 $ 6.5-MILLION $42.5-MILLION $ 4.4-MILLION · 2ndpayment, July 31st, 2009 · 3rd payment, August 15th, 2009 Risk March 24,2009 - 5 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) II I General Sales Taxe is on an unfavorable trend with only $32. J -MILLION collected. Mrs. Phillips believes this will be approximately $3-MILLION under budget. $100.0 $90.0 $80.0 c $70.0 ~ :IE $60.0 .... III $60.0 .. ::l C .. $40.0 > .. D:: $30.0 $20.0 $10.0 $0.0 General Sales Taxes February 28, 2005 - 2009 . .... ....... ....... ..... ...J!.1Y.F.4.VQ.M!!.l:$.T.lJ$NJ) ...... .... ... .... ...... ...................................................................................... .I;J.~~.~~!............ FY 2005 FY 2008 FY 2009 100.0% 90.0% 80.0% III 70.0% c 0 ~ 60.0% .!! '0 (,) 50.0% Iii '0 40.0% t- '0 :ore 30.0% . 20.0% 10.0% 0.0% Approximately $17.6-MILLION has been collected re Business Licenses (BPOL) since the end of February. Mrs. Phillips believes this will be approximately $2-MILLION under budget. FY 2006 FY 2007 UNFA VORABLE TREND 41.9. 42.3% Budget $50.0 .............................-......_-........... ...... !lO.7~1.. 40.0% c III ~ $40.0 c 0 i 30.0% ., ~ ... "6 ~ $30.0 0 ::J ~ C II ~ 20.0% l- n: $20.0 '0 ~ $10.0 10.0% $0.0 0.0% FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 .. Annual Collections _YTD -0-% of Total = Annual Collections _YTD -0-% of Total Business Licenses (BPOL) February 28, 2005 - 2009 $60.0 .... ..................................................-........................................-....-......-..........................-..............-............. 50.0% March 24, 2009 I I - 6 - CITY MANA GER 'S BRIEFING INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) Hotel Room Tax has a slight downward trend on a cash basis and will probably be under budget, but less than a $l-MILLION. $30.0 ..........................................._..........................._....._.__................___......... ,.".-,"'.'.-'.'-. -- .-.--.--..-.--.-.-... 100.0% Hotel Room Taxes February 28, 2005 - 2009 UNFAVORABLE TREND Budget 90.0% $5.0 80.0% $25_0 c: ~ $20.0 i ... III ~ $15.0 c: ., ~ a: $10.0 70.0% III c: o 60.0% ~ "0 50.0% 0 ~ 40.0% t?- o 30.0% ~ 20.0"10 10.0% $0.0 0.0"/. FY 2005 FY 2006 FY 2007 FY 2008 _Annual Collections _YTD _'!oofToml FY 2009 Restaurant Meal Taxes are On Trend with $32.9-MILLION collected. Restaurant Meal Taxes February 28, 2005 - 2009 100.0% $80.0 ---------.---- ON TREND 90.0% $70.0 ........................................................................................................ $60.0 Budget ........................................----.......--....--....---....----............................. ~ 67.0% 067.5% 067.3% 67.5% .(67.5% .. -.................... $.45..0.............. $46.7............. ..l4ll..X............. .$~,........... $41.6 80.0% $10.0 70.0% III c: o 60.0% j '0 50.0% 0 S 40.0% ~ ... o 30.0% ;,e. c: o S $50.0 ::IE ... ~ $40.0 c: ., > ~ $30.0 $20.0 20.0% 10.0% $0.0 0.0% FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 _ Annual Collections _ YTD -C-Ofo of Total I March 24, 2009 - 7 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) III1 Permits and Licenses are on a unfavorable trend and this revenue will be off approximately $1- MILLION by the end of the year. c ~ i ... $4.0 l/I .. ::l C ~ $3.0 0:: Permits and Licenses Februarv 28, 2005 - 2009 $7.0 $6.0 UNFAVORABLE TREND Budget ........................ ~~Al........... _..... _.......................................... .~.(J........... 100.0% 90.0% 80.0% 70.0% l/I C o 60.0% 11 '0 SO.O% ~ ~ 40.0% ~ o '" 30.0% 20.0% 10.0% 0.0% $5.0 Local Rewnues RealEstate Taxes $479.2 $254.9 53.2% 52.2% $6.0 Personal Property Taxes 78.3 15.5 19,8% 21.2% (15.1) Personal Property - PPTRA 53.4 6.5 12.2% 12.2% A 0.0 Geneml Sales Taxes 56.0 32.1 57.3% 61.3% U (4.1) Utility Taxes 49.0 25.9 52.8% 51.0% F (0.7) Restaurant Meal Taxes 48.7 32.9 67.5% 67.5% A 0.2 Business Licenses 43.2 17.6 40.7% 42.3% U (2.0) Hotel Room TaXes 24.1 17.9 74.3% 76.9% U (0.7) Cigarette Taxes 13.2 8.3 62.6% 62.8% U (0.3) Interest Incorrc 6.9 4.1 58.8% 73.1% U (0.8) Automobile Licenses 9.0 4.9 55.0% 58.4% U 0.0 Public Service (RE and PP) 6.1 3.6 58.7% 52.7% F 1.1 Renlallncone 4.5 2.8 63.0% 54.7% F 0.6 AllaJscrrcnl Taxes 5.6 4.1 72.4% 69.0% F (0.4) Other Local Revenues Pennits and Licenses 5.8 2..7 62.8% (1,2) Red Light VlOJations 1.6 (1.5) Vtrginia Aquarium 7.2 57;2% (2.4) Police.False.Alanm 1.1 46.8% (1.0) Other Local Revenues 50.3 22.8 45.3% 51.2% U 4.6 State Rewnues 102.7 56.0 54.6% 51.9% F (0.3) Federal Rewnues 23.5 14.1 60.0% 61.9% U $1.069.5 $529.8 49.5% 49.6% --u- * Reflects reductions in Recordation Fees and State Aid Law Fnforcement funcing. Excludes School Revenues $2.0 $1.0 $0.0 FY 2005 FY 2006 FY 2009 FY 2007 FY 2008 _Annual Collection. _YTD -0-% of Total Summary of General Fund Revenues (In Millions) February 28, 2009 March 24,2009 1111 - 8 - CITY MANA GER 'S BRIEFING INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) FY2009 Year To Date General Fund Expenditures Compared to Historic Trend February 28, 2009 100% '" CII .. 80% ~ :!::: 'tJ C CII a. 60% )( 1&.1 iii .... 0 I- 40% - 0 .... c CII u 20% .. CII a. 0% 68.5% 60.9olt /'%.. 67.7% 51.00 60.3% 43.6% 51.5% .dill 42.3% --- ..", 35.~ 23.10~ __.35.3% 7.8olt 16.~~ 23.6% .___ - - ~ 18.0% 11.5% Jul Aug Sep Oct Nov Dee Jan Feb Mar Apr May Jun -+- Histori: Trend -lK- Percent of FY09 Budget FY 2009 - General Fund Expenditures ~ Total at February 28, 2009: $762.3-MILLION, or 67.7% ~ Historical Trend 68.5% ~ Departmental Targeted Savings: $7.5-MILLION or 1.25% ~ Projected Expenditures at June 30, 2009 = $1,096-MILLION ~ Budgeted Expenditures = $1,126-MILLION ~ Historical Comparison - Budget to Actual SA VINGS (IN MILLIONS) Total % of Total City % of City Schools Budf!et 2007 (Actual) $ 41. 7 4.1% $25.9 3.8% $15.8 2008 (Actual) $ 60.3 5.6% $25.0 3.5% $ 35.3 March 24, 2009 I II - 9 - CITY MANA GER 'S BRIEFING INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) Recap General Fund Projections for June 30, 2009 At March 24, 2009 (in millions) : ... Projected Variance Revenues $1 Policy 8-12% Water and Sewer Enterprise Fund February 28, 2009 (in millions) Ii> Lower water consumption than budgeted Ii> Lower Connection fees revenues due to slowdown in construction Expenditures . Costs also down- Water Services contract - only 12% variable costs . Year End expected to be within budget overall March 24,2009 II II - 10- CITY MANA GER 'S BRIEFING INTERIM FINANCIAL STATEMENT ITEM # 58624 (Continued) Water and Sewer Enterprise Fund Water Consumption Fiscal Year 2009 45.0 40.1 40.4 40.1 >. Q 40.0 ... '" g. ] 35.0 .. " = o == 300 ~ . 30.95 25.0 (A) (A) (A) (A) (A) (A) (A) (A) (P) (P) (P) (P) Ju1-08 Aug-08 Sep-08 Oet-08 Noy-08 Dee-08 Joo-09 Feb-09 Mar-09 Apr-09 May- Juo-09 09 -.- Actual (A) MGD I Projected (P) MGD ---- Target MGD Notes: ActuaI/Projected water consumption is 34.19 MGD vs. Budgeted 35.5 MGD Target water consumption is based on Fiscal Year 2005 thru 2008 Next Steps Continue to Monitor Revenues in FY 2009 Business Licenses - March Personal Property - March/April-June Real Estate - June Report Again Next Month Relative the Sales Tax, Ms. Phillips advised Councilman Davis, the City is witnessing a drop in the Sales Tax remittance and in general. Actual collections were $32.1-MILLION versus FY 2008 of $33.1- MILLION. Councilman DeSteph advised sales are based on the economy which has declined. March 24,2009 'I - 11 - C IT Y MANA G E R 'S B R IE FIN G PARKING SYSTEM RATES 3:15 P.M. ITEM # 58625 Mr. James Ricketts, Director - Convention and Visitors Bureau (CVB), provided information concerning the Parking System rates. Mike Eason, Resort Programs Administrator - Convention and Visitors Bureau discussed proposed changes to the Municipal Parking Lot operation. · The Resort has increasingly become a year 'round destination; hence the need for extending the managed parking lots operation 63% of visitors between September-May 14 special events scheduled in October 2009 · Managed parking ensures spaces are available for visitors and residents - All existing parking garages are managed all year; surface lots are not · Current parking meter rates were set in 1984 Mike Eason discussed the proposed changes: Parking Operation and Revenue Changes Parking Meters - Increase metered parking rate to $1 per hour and extend meter parking operations to November 1 · Wording change to Sec 21-322 of the City Code removing $.75 hourly rate · Wording change to Sec 21-324 to extend paid parking by one month to November 1 · Metered parking rate and time period is the only parking operation issue addressed by the City Code · Rate remains below comparable City meter rates (Norfolk $1.40 in downtown zone) · Extension of paid parking season for surface parking facilities From October 1 to November 1 No City Code nor Resolution has established limits on seasonal operations · Elimination of the Free Wednesday Program Resolution was adopted by City Council for the 2003 Resort season only. The program was extended to allow further time to evaluate its effectiveness. There has been no measureable increase in residents using the parking facilities on Wednesday. Given the Resolution expired in 2003, no further action by City Council is required. March 24, 2009 'I - 12 - C IT Y MANA G E R 'S B R IE FIN G PARKING SYSTEM RATES ITEM # 58625 (Continued) Mr. Ricketts advised there are fourteen (14) events scheduled in October for the Resort Area and reiterated the Summary of Proposed Changes: Summary Proposed changes will: 1. Allow better asset management in extended season 2. Provide minimum impact on local residents 3. Bring Resort Area meter rates into closer alignment with market rates 4. Provide some additional revenue to the Parking Enterprise Fund to support maintenance and operations of Resort parking assets NEXT STEPS 1. City Council approves ordinance change for parking meter rate and extension of metered parking season to November First 2. City Council endorses the extension of paid parking at the municipal surface lots to November First Mr. Ricketts advised these recommendations will provide approximately $188,000 in additional revenue. Mr. Eason advised Councilman DeSteph the expected revenue for the one-month extension is approximately $57,000 and $100,000 for the increase in the meter rate to $1.00. Councilman DeSteph requested a better breakdown. Councilman DeSteph disagreed with the designee in the City Code Amendment re "at an hourly rate in an amount to be determined by the City Manager or his designee". Any time there is a change in a tax or fee, it should be considered by the City Council not the City Manager. The $1.00 charge to park, when normally free to park on Wednesday, would better manage the municipal parking lots to assure parking is available for all the residents. Councilman Uhrin advised the entire discounts offered for Virginia Beach residents cost the Parking Enterprise Fund approximately S1-MILLION per year. These changes will offset. The three components of the discount do come at a cost. The amendments shall bring this more in balance. There will still be a cost and significant discounts to residents. The Residential Parking Program stipulates for $1.00 any resident can park in any of the Municipal Lots in the Resort Area after 5:00 P.M Councilman Dyer advised cities such as Chicago and New York are astronomically raising their parking fees. March 24, 2009 'I - 13 - CITY COUNCIL LIAISON REPORTS AUDIT COMMITTEE 3:25 P.M. ITEM # 58626 Council Members Wood and Uhrin, City Council Liaisons, distributed the Audit Committee report, which is hereby made a part of the record. Lyndon Remias, City Auditor, and his staff met with the Audit Committee on March 19, 2009. The City Auditor provided a status update of the FY 2009 Audit Schedule and presented his proposed FY 10 Budget. A udits in Progress Actuarial Valuation Review The City Auditor informed the Audit Committee City Management has received the actuarial valuation completed by Mercer, the City's health care actuary. Management is scheduled to present the actuarial valuation to City Council on April 7, 2009, and has asked the City Auditor if he could complete his review of the actuarial valuation prior to the meeting. The City Auditor agreed and the review is currently in progress. H ealthcare Claims Audit Healthcare Horizons has been awarded the contract to perform the audit of health care claims. Healthcare Horizons is currently working with Optima to obtain the necessary claims and eligibility files to perform their review. Healthcare Horizons anticipates completing their review by mid July 2009. Other Audits in ProJ!ress Review of city-wide vehicle fuel utilization program Review of travel vouchers Review of Convention Center's Food and Beverage Contract ComIT Audit City Auditor is continuing to monitor ComIT'S corrective Action Plan resulting from the ComIT audit. Implementation of audit recommendations appears to be on track Fraud. Waste and Abuse Hotline Currently, the City Auditor has twenty (20) open cases that are under investigation. March 24,2009 'I - 14 - CITY COUNCIL LIAISONREPOR TS WORKFORCE HOUSING COMMITTEE ITEM # 58627 Council Lady Wilson participated in the Housing Roundtable tour to James City County. The County has excelled in integrating Workforce Housing and mixed use. All of the materials utilized in the development are high quality. It is amazing their accomplishments in such a short time span. Council Lady Wilson suggested the Planning Commission and Development Authority participate in a tour. CLEAN COMMUNITY COMMISSION ITEM # 58628 Councilman Dyer advised last Saturday, the Clean Community Commission MET with the residents of Charlestown Woods (Centerville District) and recruited members of the Marines and Navy conducted a massive clean-up. Dan Baxter, Chair - Clean Community Commission, forwarded photographs. Two (2) dumpsters were filled with debris. A couple of weeks ago, the Commission also completed an initiative in the Bayside District. Councilman Uhrin advised to be more environmentally friendly; the City Council has switched from Styrofoam cups to a material that is best for the future. March 24, 2009 "I - 15 - CITY COUNCIL COMMENTS 3:27 P.M. ITEM # 58629 Council Lady Wilson has spoken with Admiral Fred Metz who advised the Navy is starting to put out some smaller, more agile LCS vessels and wished to name them after American Cities. One was just named after Coronado. Admiral Metz suggested USS Virginia Beach. Mayor Sessoms advised meeting with Retired Commander Sali Gear, the City's Military Liaison, relative this item and others. Commander Gear will prepare the correspondence and other details. ITEM # 58630 Mayor Sessoms requested the City Council Members respond to the City Clerk concerning their preference for their Annual Retreat with Lyle Sumack. ITEM # 58631 Councilman Dyer advised this Saturday, March 28, 2009, the Pony League, which was moved from Kempsville to the Reon area (Centerville District) will have an opening game at 10:00 A.M The Tidewater Builders Association Apprenticeship School helped build the field boxes. March 24,2009 'I - 16 - AGE N DA REV IE W S E S S ION 3:32 P.M. ITEM # 58632 10. Ordinance to ESTABLISH Capital Project #3-143; and, ACCEPT and APPROPRIA TE $4,000,000 from the United States Department of Homeland Security re: Urban Area Security Initiative (UASI) Interoperable Communications Technology Grant - Phase IL Councilman Wood inquired when the new ORION system (new digital system)would be on line. Gwen Cowart, Director - Communications and Information Technology, advised the digital microwave is being prepared for the Request For Proposal (RFP). and then once the contract is available, it will be approximately twelve (J2) to eighteen (18) months before being set up. ITEM # 58633 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: J. ORDINANCES/RESOLUTIONS 1. Ordinances re City Code: a. AMEND 921-322 and 21-324 re: Parking Meter Rates b. AMEND Chapter 5 re: Animals and Fowl c. REPEAL 933-131 re: Newsracks 2. Ordinance to REVISE the City Council Policy re: Time Limitsfor Speakers at City Council Meetings on the first meeting of each month. 3. Ordinance to DECLARE City-owned land as excess property re: 2245 Reuben Street to Tammy McClenney and A UTHORIZE the City Manager to convey the property. DISTRICT 6 - BEACH 4. Resolution to COMMEND the Virginia Beach Restaurant Association, Matt Falvey, and Laura and Kal Habr re: successful efforts in supporting State Legislation to Prohibit Smoking in Restaurants. 5. Resolution to A UTHORIZE the Virginia Beach School Board to submit the Loan Application to the Virginia Board of Literary Fund re: construction of Great Neck Middle School. 6. Ordinance to AUTHORIZE the extension of the Pilot Program re: Horseback Riding on the Beach and AUTHORIZE the City Manager to execute an Amended Franchise Agreement. DISTRICT 6 - BEACH March 24, 2009 'I - 17 - AGENDA RE VIE W SESSION 3:32 P.M. ITEM # 58633 (Continued) 7. Ordinance to AMEND the Open Air Cafe regulations re: allowing open air cafes in the Resort Gateway Corridors and West of Pacific Avenue. 8. Ordinances to A UTHORIZE the City Manager to execute leases of City-owned property for three (3) years at the Virginia Beach Farmers Market: a. Andrew Skipper tla Homegrown Country Market re: Space #11 b. MaryJean Reid tla MaryJean's Bakers re: Space #10 DISTRICT 7 - PRINCESS ANNE 9. Ordinance to AUTHORIZE a temporary encroachment into a portion o.fCity owned property - Canal No. 2 - for OCEANA DEVELOPMENT, L.P. and OCEANA DEVELOPMENT, LLC, to construct and maintain adequate drainage. DISTRICT 6 - BEACH 10. Ordinance to ESTABLISH Capital Project #3-143; and, ACCEPT and APPROPRIATE $4,000,000 from the United States Department of Homeland Security re: Urban Area Security Initiative (UASI) Interoperable Communications Technology Grant - Phase II Councilman DeSteph will vote a VERBAL NA Y on Item J. J.a (Parking Meter Rates) and J.2. (Time Limits for Speakers) J..6 Ordinance re (Amended Franchise Agreement - Horseback Riding on the Beach) shall be further AMENDED to allow riding horses on the Beach from April 15, 2009 through },fa)' 25,2009 May 21, 2009 March 24, 2009 'I - 18 - AGENDA RE VIE W SESSION ITEM # 58634 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT: K PLANNING 1. Application of SCOTT and DALE BANNING for a Nonconforminf! Use re alterations and additions to a garage apartment at 114 54th Street. DISTRICT 6 BEACH DISTRICT 5 - LYNNHA VEN 3. Application of ROBERT H. JOHNSON for a Variance to the Subdivision Ordinance re subdividing the property at 1601 Virginia Beach Boulevard into two (2) single-family home sites DISTRCT 6 - BEACH 5. Application of TOWN CENTER ASSOCIATES, L.L.C. for the closure of a portion of Market Street at the intersection of Market and Columbus Streets DISTRICT 5 - LYNNHA VEN 6. Application of TOWN CENTER BLOCK 10 APARTMENTS, L.P., for a Conditional Use Permit re allow a public or private college or university on the first floor of The Cosmopolitan Apartments at 4544 Columbus Street. DISTRICT 5 - LYNNHA VEN 7. Application of REGENT UNIVERSITY for a Conditional Use Permit re development of two (2) student dormitory buildings and a dining hall at 1352 and 1354 Regent University Drive. DISTRICT 1 - CENTERVILLE 8. Application of STUDIO BAMBOO INSTITUTE OF YOGA for a Conditional Use Permit re yoga at 2865 Lynnhaven Drive. DISTRICT 5 - LYNNHA VEN 9. Application of JULIE COLEMAN - ZEN HOT YOGA for a Conditional Use Permit re yoga at 3352 Princess Anne Road, Suite 901. DISTRICT 7 - PRINCESS ANNE 10. Applications of DANIEL J. BLEVINS at 920 Military Highway: a. Modifications of Conditions Nos. 1 and J.. re increase the number of units per acre from 18.5 units to 19 and lJarking (approved by City Council on October 9, 2007) b. Change of Zoning Districtfrom A-24 Apartment District to B-2 CommunityBusiness re elimination of split zoning that currently exists DISTRICT 1 - CENTERVILLE March 24, 2009 'I - 19 - AGE N DA REV IE W S E S S ION ITEM # 58634 (Continued) 12. Application of HARMONY INVESTMENTS, INC. FOR a Change of Zoning from I-I Light Industrial District to Conditional A-36 Apartment District re developing Two Hundred Twenty-Four (224) multi-family dwellings, parking, landscaping, leasing office, clubhouse and pool at 5321 Greenwich Road. DISTRICT 2 - KEMPSVILLE Item 12 (HARMONY INVESTMENTS, INC.) shall be DEFERRED INDEFINITELY, BY CONSENT Councilman Dyer DISCLOSED and ABSTAINED pursuant to Section 2.2-3115(E), Code of Virginia, re Item 7 (Regent University for a Conditional Use Permit at 1352 and 1354 Regent University Drive. Councilman Dyer has a personal interest in this transaction as an employee of the applicant, Regent University, which is located at 1000 Regent University Drive. Councilman Dyer's correspondence of March 24, 2009 is hereby made a part of the record. Council Lady Wilson DISCLOSED pursuant to Section 2.2-3115(E), re Item K.8 (Studio Bamboo Institute of Yoga) for a Conditional Use Permit at 2865 Lynnhaven Drive). Council Lady Wilson has a personal interest in this transaction because her husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Studio Bamboo Institute of Yoga. Her husband does not personally provide services to Studio Bamboo Institute of Yoga. The City Attorney's Office has advised although she has a personal interest in the transaction, because her husband does not personally provide services to Studio Bamboo Institute of Yoga, she may participate without restriction in City Council's discussion and vote on the application. Council Lady Wilson's correspondence of March 24, 2009, is hereby made a part of the record. Mayor Sessoms DISCLOSED and ABSTAINED pursuant to Section 2.2-3115(E), Code of Virginia, re Item K.12 (Harmony Investments for a Conditional Change of Zoning at 5321 Greenwich Road) Mayor Sessoms has a personal interest in this transaction being an Officer of TowneBank. The applicant has advised that TowneBank will provide financing for this project. Mayor Sessoms' correspondence of March 24, 2009, is hereby made a part of the record Council Lady Wilson DISCLOSED pursuant to Section 2.2-3115(E) ,re Item K. 12 (Harmony Investments, Inc. for a Conditional Change of Zoning at 5321 Greenwich Road). Council Lady Wilson has a personal interest in this transaction because her husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Harmony Investments. Her husband does not personally provide services to Harmony Investments. The City Attorney's Office has advised although she has a personal interest in the transaction, because her husband does not personally provide services to Harmony Investments, she may participate without restriction in City Council's discussion and vote on the application. Council Lady Wilson's correspondence of March 24, 2009, is hereby made a part of the record. March 24, 2009 'I - 20- ITEM # 58635 Mayor William D. Sessoms, Jr. entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-3711(A), Code of Virginia, as amended, for thefollowingpurpose: PERSONNEL MATTERS: Discussion, consideration of, or interviews of prospective candidates for employment, assignment, appointment, promotion, peiformance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711 (A)(J) Council Appointments: Boards, Commissions, Committees, Authorities, Agencies and Appointees PUBLICLY-HELD PROPERTY: Discussion or consideration of the, acquisition, or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711 (A)(3). Acquisition/Disposition of City Property: Lynnhaven District Princess Anne District LEGAL MATTERS: Consultation with legal counsel and briefings by staff members, consultants, pertaining to actual or probable litigation, where such consultation or briefing in an open meeting would adversely affect the negotiating or litigating posture of the public body, or consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel pursuant to Section 2.2-3711 (A)(7). Southeastern Public Service Authority Upon motion by Council Lady Wilson, seconded by Councilman Dyer. City Council voted to proceed into CLOSED SESSION at 3:48 P.M. March 24, 2009 ,II - 21 - ITEM # 58635 (Continued) Voting: 9-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Robert M Dyer, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Barbara M Henley Council Lady Henley entered the Formal Session - 6:00 P.M (Closed Session: 3:48 P.M. - 4:49 P.M.) (Break: 4:49 P.M. - 4:55 P.M.) 5:00 P.M. - 5:55 P.M.) (Dinner: March 24, 2009 II - 22- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL March 24, 2009 6:00 P.M. Mayor William D. Sessoms, Jr. called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, March 24, 2009, at 6:00 P.M Council Members Present: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Absent: Ron A. Villanueva [Delivering the Eulogy at afriend'sfuneral service] INVOCATION: Reverend John 0. Ponder Pastor, Abundant Grace Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Mayor Sessoms DISCLOSED as an officer of TowneBank (which has a corporate office located at 297 Constitution Drive in Virginia Beach), he is directly and indirectly involved in many of TowneBank's transactions. However, due to the size of TowneBank and the volume of transactions it handles, TowneBank has an interest in numerous matters in which he is not personally involved and of which he does not have personal knowledge. In that regard, he is always concerned about the appearance of impropriety that might arise if he unknowingly participates in a matter before City Council in which TowneBank has an interest. Mayor Sessoms also has similar concerns with respect to Prudential Towne Realty, which is an affiliate of TowneBank. In order to ensure his compliance with both the letter and spirit of the State and Local Government Conflict of Interests Act (the "Act"), it is his practice to thoroughly review each City Council agenda to identify any matters in which he might have an actual or potential conflict. If, during his review of an agenda, he identifies a matter in which he has a "personal interest ", as defined by the Act, he will either abstain from voting, or file the appropriate disclosure letter with the City Clerk to be included in the official records of City Council. Mayor Sessoms' letter of March 24, 2009, is hereby made a part of the record. Vice Mayor Jones DISCLOSED, for many years, he served on the Board of Directors of Resource Bank. Three (3) years ago, Fulton Financial Corporation ("Fulton Financial") purchased Resource Bank. On March 31, 2007, Vice Mayor Jones retired from the Board of Directors. Although, he is no longer a Board Member, he owns stock in Fulton Financial, and that stock ownership causes him to have a "personal interest" in Fulton Financial. However, due to the size of Fulton Financial and the volume of transactions it handles in any given year, Fulton Financial, or any of the banks that are owned by Fulton Financial, may have an interest in numerous matters in which Vice Mayor Jones has no personal knowledge. In order to ensure his compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is his practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which he might have an actual or potential conflict. If, during his review, he identifies any matters, Vice Mayor Jones will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 10, 2007, is hereby made a part of the record. March 24, 2009 II - 23 - Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a Real Estate Agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. March 24,2009 .I City of Virgi:r1ia Beach March 24, 2009 VBgov.com MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456-9000 (757) 385-4581 FAX (757) 385-5699 wsessoms@vbgov.com WilLIAM D. SESSOMS, JR. MAYOR Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Re: Conflict oflnterests Act Disclosure- TowneBank and Prudential Towne Realty Dear Mrs. Fraser: As an officer of TowneBank (which has a corporate office located at 297 Constitution Drive in Virginia Beach), I am directly and indirectly involved in many of TowneBank's transactions. However, due to the size of TowneBank and the volume of transactions it handles, TowneBank has an interest in numerous matters in which I am not personally involved and of which I do not have personal knowledge. In that regard, I am always concerned about the appearance of impropriety that might arise if! unknowingly participate in a matter before City Council in which TowneBank has an interest. I have similar concerns with respect to Prudential Towne Realty, which is an affiliate of To wneBank. In order to ensure my compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act (the "Act"), it is my practice to thoroughly review each City Council agenda to identifY any matters in which I might have an actual or potential conflict. If, during my review of an agenda, I identifY a matter in which I have a "personal interest," as defined by the Act, I will either abstain from voting, or I will file the appropriate disclosure letter with the City Clerk to be included in the official records of City Council. Thank you for your assistance and cooperation in this matter. Very truly yours, p,vU j~-------- Mayor William D. Sessoms, Jr. 'I - 24- Item V-E. CERTIFICATION ITEM # 58636 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exemptfrom Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 9-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Abstaining: Barbara M Henley Council Members Absent: Ron A. Villanueva Council Lady Henley ABSTAINED as she was not in attendance during the Closed Session. March 24, 2009 II RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM #58635, Page 20, and in accordance with the provisions of The Virginia Freedom of Information Act, and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW; THEREFORE, BE IT RESOL VED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. ~'~/'$6 /..-r'A-, . j uth Hodges Fraser, MMC City Clerk March 24, 2009 'I - 25 - Item V-F.1 ITEM # 58637 Upon motion by Council Lady Wilson, seconded by Councilman Wood, City Council APPROVED the MINUTES of the INFORMAL and FORMAL SESSIONS of March 10, 2009. Voting: 8-0 Council Members Voting Aye: Glenn R. Davis, Harry E. Diezel, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Abstaining: William R. "Bill" DeSteph and Robert M Dyer Council Members Absent: Ron A. Villanueva Council Members DeSteph and Dyer ABSTAINED re the Minutes of March 10, 2009, as they were out of the City on that date. March 24, 2009 'I - 26- Item V-G. ADOPT A GENDA FOR FORMAL SESSION ITEM # 58638 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION March 24,2009 'I II - 27- Item V-G.2 MA YOR'S RECOGNITION ITEM # 58639 Vice Mayor Jones RECOGNIZED the following Boy Scouts in attendance to earn their merit badges: Boy Scout Troop 499 Carrow Baptist Church John Bedrosian Jackson Chisenhall Ethan Deville Nathan Filipowski Timothy Filipowski Nathan Land Preston McDaniel Aleric Sanders Yoshi Smith Austin Sutton Eion Woods Leaders: Patty Berrosian Pamela Chisenhall Ed Filipowski Kyle Sanders Mayor Sessoms presented each Scout with a City Seal pin. March 24, 2009 II - 28 - Item V-H. PRESENTATION ITEM # 58640 OPERATING AND CAPITAL BUDGETS FY 2009-2010 The City Manager presented the update to the second year of the Biennial Budget for Fiscal Year 2009- 2010 and referenced the Outcomes for Today: - Build on City Council discussions of -Nov 18th (Five Year Forecast) -Jan 13th (How We Compare in the Region) -Jan 27th (Options to Balance the Budget) -Feb 9th & 10th (Programs and Services Rankings) - Update Revenue Projections for FY 2010 - Explain Strategy and Options used to Balance the Budget and Capital Improvement Program - Service Changes (adds & deletes) to the Budget and Capital Improvement Program The Bottom Line - Closed a $103-MILLION deficit with: -No tax increases -No layoffs (however, a deletion of some positions is recommended) -Services and programs to Citizens generally maintained - However. the options used are predicated on a gradually improving economy Financial Strength - The City Council has understood the importance of financial sustainability and has continually looked to the future. You have: -Built strong reserve policies -Secured economic opportunities like the Lake Gaston project and Town Center -Established strong debt guidelines that helped achieve a AAA bond rating -Developed lasting relationships with the Schools and the General Assembly The City Manager introduced Catheryn Whitesell, Director - Management Services and expressed appreciation to her and her entire staff for their hard work, the Management Leadership Team and the Department Directors. March 24, 2009 ,II II - 29- Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Economic Model Used - ":., ',;~;;,i;;~:::;::~::6~',:' ~ ,: ~li~I~~~;;;;~:'::: ........ 2008 2009 2010 2011 2012 2013 Housing Vehicles Consumer Confidence This model of the economy has been used to illustrate possible recovery scenarios. The three major drivers of this economic model for the City are housing, vehicle prices and overall consumer confidence in the economy. The City will have to carefully monitor the recovery throughout next fiscal year and make acijustments to expenditures, if necessary. FY 2009-10 Revised Revenue Estimates Real Estate ~",,~~~lIE:::' Reduce FY10 by $18.1 million for a total of $498 million Virginia Beach Real Estate Assessment Changes ............. 25.0% 20.0% 15.0% Gl Cl 10.0% c:: Cll .c:: 0 5.0% :.e 0 0.0% -5.0% -10.0% Source: City Real Estate Assessor March 24,2009 Item V-H. PRESENTATION - 30 - II ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Real Estate revenue has improved since City Council was briefed on January 27th with new construction doing better than originally believed This provided the City and Schools an additional $4.8-MILLION in revenue to share through the formula. Personal Property Taxes National Average Price Dep18cialion for Vehicles 1 . 5 Years Old 0% ; .5% " q .~ -10% ! . -15% !-20% -25% Source: NACA New car sales continue to struggle. General Sales Tax \ r -,'; IN,~ -; \~ '<<,<~, ' Reduce FY10 estimate by $22.8 million for a total of $121.3 million Virginia Beach Personal Property Tax Growth 25.0% .- - ..........- - ....--- ....- .-- ......... -...._.__..._.. .,...._ 20.0% 150% t 100% o (; ;f.. 50% 00% -5.0% -10.0% Sour~: Commlssioner of Revenue Virginia Beach General Sales Tax VearoverVear , ,"~.:.\, ',l ,,' 8.0% 6,0% 4,0% ~ 2.0% " 00% i -2.0% j -40% -6.0% -80% -1000/0 ----"----- .._--~- "'------~-.-,-~-~_. Source: City ofVlrgl"l. Beach I-+-- FY 2008 -4-- FY 20091 Reduce FY10 estimate by $7.3 million for a total of $51.1 million Genera' SIlos Annual Growth 12% . _ 0 10% 8% 6% 4% 2% 0% ..2% 4% .0% Sour..:CllyofVlr,IIl.e.adI March 24,2009 'I - 31 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Business License (BPOL) Tax Gross Domestic Product Comparison 6.0% 5.0% 4.0% .c 3.0% - ~ 2.0% 0 .. C) 1.0% ';Ie 0.0% -1.0% -2.0% -3.0% Source: ODUEconomic I [J Hampton Roads GRP 0 U.S. GDP o Virginia GSP I Forecas ting Project Reduce FY10 estimate by $6.3 million for a total estimate of $40.6 milliorf The Estimate for this revenue has not been changed since Business License is not due for the current fiscal year until this month. Once it is known how FY 2009 performs, an adjustment may be recommended. Hotel & Restaurant Meals Taxes Hotel Year over Year Tax Revenue Growth 50.0% -------.;--....--~.--. .....- ..--~-.... 400% 30.0% ~ 20.0% ~ 10.0% C> 0.0% -10.0% Reduce FY10 estimate by $1 million for hotels for a total of $23.9 million -20.0% -30.0% Source: City or Virginia Beach 1__ 2007 -- 2008 20091 Restaurant Year over Year Tax Revenue Growth 100% Reduce restaurant meals revenue by $1.3 million for a total of $49.8 million 0.0% 8.0% ~ 6.0% i 0 (; 4.0% ~ .. 2.0% ..ul Aug Sep Oct Nov Dee Jan F eb Mar Apr May ..un Source: City 01 Virginia Beach __ FY 2007 __ FY 2008 FY 2009 No change to this revenue since January March 24, 2009 II - 32 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Use of Money & Property Portfolio Bank Weighted Interest Rates "', ,,,'," '/~, ' 7.00% 600% 5.000/0 S 400% 12 3.00% 2.000/0 1.00% 0.00% ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Source: Virginia Beach Treasurer Reduce FY10 estimate by $7 million; $5.3 million of which is related to interest income Virginia Beach Earned Interest 14.0 12.0 ;; 10.0 ; 8.0 'j! 6.0 e. 4.0 2.0 FY FY FY FY FY FY FY 2004 2005 2006 2007 2008 2009 2010 Souroe: City of Virginia B..ch State Revenues 550.0 Reduce FY10 estimate by $23.8 million for a total of $495.1 million 500.0 Iii c:: ~ 450.0 'E ~ 400.0 350.0 9 N M ... '" CD ..... co '" 0 9 0 9 0 9 0 0 0 0 a N M .... '" J, .:. a, m 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N N N N N N N N N N NOTE: FY 2009-10 does not include Federal Stimulus funds from the State's Budget that are available for education nor does it include Stimulus Funding for transportation which is shown in the Capital Improvement Program. 13 State revenues have been adjusted to reflect the State's use of Stimulus fUnding in its budget. This use allows the restoration of 559 funds to the City and the restoration of all state reductions to the Constitutional Offices. State revenues are still declining by $23. 9-MILLON from that expected for next fiscal year. However; Schools have unallocated funding from the State (approximately $22-MILLION of State Stimulus funding that was not allocated as a part of their budget process and about $1.2 of State Revenue). March 24, 2009 Item V-H. PRESENTATION - 33 - 'I ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Federal Revenues I/) 130 c: o :i 120 ----- 110 100 ~.;;;:ta.~..::~~t 90 Increase the FY10 estimate by $9.4 million due to increases in Housing and Human Services Programs 80 N 9 o o N <') o N o o N '<t o M o o N It) o ..t o o N <0 o .;, o o N f'-. o cD o o N co o ,..:. o o N a> o ob o o N o ..... d> o o N NOTE: FY 2009-10 does not include Federal Stimulus funds that are available for education or transportation 14 Federal Revenues are increasing from last year, due entirely to increases in Federal programs supporting housing and human service programs and expenditures have been increased correspondingly. Impact on Second Year ~&:,,':~&.';;"~, ^~~,: FY 2009-10 (in millions) City Schools Total Original Estimated Revenues $ 911.4 Revised Estimated Revenues $ 867.6 Revenue Deficit $ -43.8 ............ Expenditure Shortfall $ -4.0 Total Deficit $ -47.8 $ 887.9 $ 1,799.3 $ 832.3 $ 1,699.9 $ -55.6 $ -99.4 $ -4.0 $ -55.6 J -103.4 15 March 24, 2009 'I - 34 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Strategy Used to Balance . Minimize impact on service delivery and programs . Maintain City's strongfinancial position . Protect the future viability of the City's economy . Balance reductions across departments, employees, taxpayers, and reserves . Avoid layoffs . Minimize impacts on infrastructure projects in the Capital Improvement Program Possible Options to Rebalance FY 2009-10 (from Jan. 27,2009 City Council Briefing) Option A: ~~"';:~;."ii Move all of the GASB45 payment (Retiree Health Care Liability) to the Health Insurance Fund. Currently $2 million of the total payment ($1 million each City & Schools) is already shown in the Health Insurance Fund Possible savings = $4 million Concerns: Schools will most likely move their $2.9 million The balance of the fund will cover this strategy for roughly two years If direction is to continue to fund from the Health Insurance Fund we will have to eventually include in rate structure and share costs between employer and employee In the Revised Budget, both City and Schools show all of GASB45 payment in the Health Insurance Fund, saving $6.9 million 19 Option B: :'"";"~iII~~:~~'~:~;,~J:;:;;' Change City Council dedicated revenues for one year and review for appropriate funding levels with the next Biennial Budget Possible savings = $17.8 million Concerns: Decreases local funding to schools beyond the current economic reductions Would temporarily lower tourism advertising budget Rather than changing dedications directly, the Revised Budget uses $6 million in excess fund balances from ARP, Major Projects, and TGIF to support services. 20 March 24,2009 'I - 35 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Option c: ';:~~~:~';:j;::;2::~~i;;",:~"';;;;' Eliminate the proposed 2.5% pay raise for all employees Possible savings = $ 8.8 million ($7.4 million in General Fund) Concerns: Schools may provide pay raises City employees are also being hurt by the economy In the Revised Budget neither City or Schools included pay raises for next year, saving $26.6 million 21 Neither the City's nor School's budget includes funding for employee raises next year. Remember, our focus was on avoiding layoffs and this was one strategy that helped prevent that option. Option F: ;~~ "ryC;;;.;, ~"' Reduce pay-as-you-go financing to the CIP and replace with Fund Balance Possible savings = $10 million (assuming we remain at the target level of 10%) Concerns: If the economy doesn't improve in the next biennial budget we will need to reduce the CIP ----- Fund balances from the General Fund and the School Reserve Fund were used to support the CIP. $27.9 million was used between the City and School System. 24 March 24, 2009 II - 36 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Option L: "~4us::;..,:~:W':a" ~*~ Reduce travel and training accounts Possible savings = Each 1 % reduction is $30,000 Concerns: Mandated certification requirements could not be met Could limit employee reimbursement for travel costs The Revised Budget cuts City travel and training by $200,000, or roughly 10% in most departments. 30 Option R: lil&:~, ;"~;_;::! Increase City reliance on existing fees by 1 % thereby recouping more program/service costs through fees Possible revenue increase = $570,000 Concerns: Could impact customers Need to remain competitive with other providers Overlap with cut options The Revised Budget proposes increasing Parks and Recreation tees and initiating an out-at-town charge tor library users. Estimated revenue is roughly $140,000. 36 March 24, 2009 Item V-H. II - 37 - PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Option S: Review program and service rankings for possible reductions/eliminations Possible savings = Depends on if we eliminate programs or reduce funding for programs and which programs are chosen The Revised Budget includes service reductions totaling $23.8 million between City and Schools. The following Options were DELETED: Programs by Servk:e Criteria Category ~ $1.600 ~ ;iS1200 " m ....- I ----1 --~._~.~I 113 20 Progrll..._~A-ClQf__ No-Choice Choiee Qu.lllyofLife ComrnunityAdd- "" $1,000 Programs by Business Area 10 ....... j =S800~- ;; C ~$800 -- j$400-~ I $200 .. 97 72 P1'0gIll'" Progrllrrs ,. Option D: Unpaid Furloughs - each full-time employee would have to take an unpaid day sometime during the twelve (12) months. Option E: Eliminate salary supplements for Constitutional Officer Station positions Option G: Defer all or a portion of the FY 2009 Bond Sale (occurs in the Spring) Option H: Across-the-Board Reductions (Reduce Departments by 1%, Reduce Department Positions by 1%) Option 1: Reduce all operating accounts by 1% Option J' Defer vehicle replacement for one year Option K: Maintain City Council's Policy of not replacing or supplanting State funding reductions Option M' Reduce contracted manpower Option N Raise real estate tax rate by I ~ Option 0: Raise Personal Property Tax on vehicles by 10~ Option P: Institute a Monthly Garbage Fee Option Q: Budgetfor attrition (assume some level ofposition turnover for each department) March 24,2009 Item V-H. PRESENTATION 'I - 38 - ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Operating Budget (City and School$~ S r: Cb S - U) ::;, :0' c:(' Cb ::;, r: f Cb 0: Total use of Fund Balance = $44.8 million UJ Q) (.) C nJ - nJ m "0 c ~ LL ~ o Q) UJ ::;:) III C he OtYn 0 .- ~ ~ u UJ ":) C "0 8. ~ e ~ o ~ o .G) € 't: to g.. G) o Total reductions in employee compensation = $26.6 million Total Program/Service Reductions = $24 million and 110 position's Totals $103.4 million 3B Four (4) major strategies were used to balance the Operating Budget. Management Services was able to increase some revenue estimates since the City Council was previously briefed on January 27th. These were a small increase in the estimate for real estate tax revenues due to better than expected new construction assessments from the Assessor's Office and a reinstatement of some State revenue reductions through the State's use of Federal Stimulus monies. Also, this budget recommends some small increases in Parks and Recreation fees and a new fee for out-of-town Library users. Both the City and School System had to eliminate the pay raises originally included in the FY 2009-10 Budget for employees. Both the City and School System worked very hard to minimize position cuts and to avoid layoffs. There are 110 positions being eliminated between the City and School System due to programs and services being reduced; but, both the City and Schools are confident that no one need loose their job. March 24, 2009 II - 39 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Operatin~ Bu get (In Mi ions) FY 2008-09 WY 2009-10 lEY 2009-10 Adjusted iApproved lRevised % Budf!et lBudf!et lBudxet Chanxe City Operations ~ 731.6 ~ 740.5 ~ 72 7. 7 City Debt Service 100.0 104.3 102.2 City Pay-as-you-go 56.1 66.6 54.9 Total City S 887. 7 $ 911.4 $ 884.8 (2.9%) School Operations ~ 822.4 $ 830.1 $ 800.6 School Debt Service 41.2 43.8 44.2 School Pay-as-you-go 13.9 13.9 0 City Manager Acijustment - -- 1.9 Total Schools ~ 877.5 $ 887.8 $ 846. 7 (4.6%) Unallocated School Funding * - -- 'Ii 49.8 + 1.0% d II * The School Board was notified of additional State and Stimulus funding too late to incorporate same into their Budget and Capital Improvement Program Expenditure Categories $900 $800 $700 '" $600 c: ,g $500 :E $400 $300 $200 $100 $0 Salaries Benefits Operating Equipment Debt CIP Expenses Service Funding I [[] City . Schools I 41 March 24,2009 'I - 40- Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Service Demands ';i;':~~~:~_~~k,~,: "":'~;;~,:;;;;;;~I;I~' ~ Percent Change in Selected Service Demand Since 1999 143.4% 140.0% -20.0% .!! ;; o .. .!! '0 l1. ~ o .. .. JI... i ~ ..ex: c .. ..J .. .- vt j i~ ~t) "CICD "O~ ::s .c :.:: 0 Iii~ JlO :IE Service Delivered 100.0% 60.0% 20.0% 6.0% ,...._.....-.,.,.....-..............,.,.",<., 42 Reductions . No pay raises for City and School employees . Elimination of Consumer Affairs . Elimination of Year-Round Schools . Elimination of City-wide suggestion program "My Idea Works" . Elimination of City Page and Beach Magazine . 1 year delay of Thalia Fire Station stiffing and truck . 50% reduction in Municipal Reference Library hours . Elimination of the Transition Area Financing program . Elimination of the Galaxy Program in Schools . Elimination of Saturday Detention in Schools . 50% reduction in Tuition Reimbursement . Reduction in employee recognition programs . Extend the use of textbooks . 1 0% reduction in Travel and Training . 50% reduction in Community Incentive Grants (COG) . Reduction of 11 0 positions from various programs (City & Schools) March 24,2009 'I - 41 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Necessary Adds . Increased cost of energy and fuel . New Animal Shelter Manager and Veterinarian program . Cold Case Squad . Two positions for the Finance Department . Increases in office lease costs . Create a new department of Emergency Communications and Citizen Services based on the ComIT audit (transfer of E911 and 311 services) . Defibrillator replacements (City & grant funds) . Replace grant positions in Commonwealth's Attorney's Office . Establish a new Strategic Growth Office to implement the City Council's visionfor the SGAs . Expansion of programs with 100% revenue coverage (DMV select, Housing, Human Services) Capital Budget (In Millions) FY 2009-10 FY 2009-1() <4pproved Revised Budget Budget lRoadways $ 41.8 $ 56.3 City Buildings 15.6 16.8 Iparks and Recreation 10.2 10.3 Utilities 145.9 146.5 Coastal 7.7 7.7 Economic & Tourism Development 20.1 ~0.9 Communications & Information Technology 5.3 5.2 Total City Projects $ 146.6 $ 163.7 !school Projects * $ 63.0 $ 52.4 Total Capital Budget $ 209.6 $216.1 The School Board was notified of additional State and Stimulus funding too late to incorporate into their Budget and Capital Improvement Plan Capital Budget . Complete loss of State funding for roads and school construction . Some reliefpossible through Federal Stimulus funding . Use of fund balance to maintain projects while transferring pay-as-you-go funding back to the Operating Budget March 24, 2009 'I - 42- Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Capital Improvement Program Highlights . Complete the Renaissance Academy . Maintains the schedule for replacement of . Great Neck Middle School . College Park Elementary School . Replace the School Bus Garage . Provides fundingfor improving energy efficiency . Improves long neglected roadway maintenance . Maintains schedule for City Council priorities of . Princess Anne Road - Phase IV . Princess Anne/Kempsville Road Intersection . Witchduck Road - Phase I (Federal Stimulus funding) . Created a historic property acquisition and renovation project through an initial infusion of ARP fund balance Delayed Projects . Nimmo Parkway-Phase V-A (beyond2016) . Witchduck Road - Phase II (beyond 2017) . Elbow Road - Phase 11 (unfunded) . Laskin Road - Phase 11 (unfunded) . Indian River Road - Phase V11 (unfunded) . Animal Shelter Replacement (construction unfunded} . Princess Anne Middle School . John B. Dey Elementary School . Kellam High School . Williams Farm Community Recreation Center (construction unfunded) Comoarison of Virginia Beach Taxes on Families (includes previously lFy 2008-09 FY 2009-10 iJleal Estate Tax $ 2,308.66 $ 2,224.16 Ipersonal Property Tax 1244.11 155.08 'Electric Utility Tax 136.00 36.00 Natural Gas Utility Tax '36.00 36.00 Va. Telecommunications Tax 70.68 70.68 Water Utility Tax i6.00 36.00 Restaurant Meals Tax 251.48 1251.48 4dmissions Tax i5.69 125.69 Vehicle License Decal 52.00 52.00 ~torm Water Utility Fee 73.37 ~0.67 lResidential Refuse Fee None lNone WarerandSewerUseFe~ 509.52 518.52 Total Annual Tax Impact $ 3,643.51 $ 3,486.28 ($157.23) approved fee increases) March 24, 2009 'I - 43 - Item V-H. PRESENTATION ITEM # 58640 (Continued) OPERATING AND CAPITAL BUDGETS FY 2009-2010 Final Thoughts . Virginia Beach is in a good financial position to weather this recession - better than most Municipalities . Management Services could not have addressed the community's needs without your (City Council) steadfast vision of the future and the assistance of the School System . Management Services was able to lower the tax burden on families by avoiding tax increases . This Budget and Capital Improvement Program are predicated on the economy improving; if the recession lingers into FY 201 I we will have a ~ difficult budget. PROPOSED RESOURCE MANAGEMENT PLAN FY 2010 BUDGET WORKSHOPS April 7 April 14 April 16 April 21 April 28 MayS May 12 Workshop Workshop Public Hearing Workshop Workshop and Public Hearing Reconciliation Workshop Public Hearing for Adoption Council Conference Room Council Conference Room Green Run High School - 6:00 P.M. Council Conference Room Council Chamber - 6:00 P.M. Council Conference Room Council Chamber - 6:00 P.M. March 24,2009 - 44- Item 1.1. PUBLIC HEARING ITEM # 58641 Mayor Sessoms DECLARED A PUBLIC HEARING: SALE OF EXCESS CITY PROPERTY 2245 Reuben Street - Gatewood Park There being no speakers, Mayor Sessoms CLOSED THE PUBLIC HEARING. II March 24, 2009 1II1 - 45 - Item V-I.2.a.b. PUBLIC HEARING ITEM # 58642 Mayor Sessoms DECLARED A PUBLIC HEARING: LEASE OF CITY OWNED PROPERTY - Farmers Market a. Andrew Skipper, t/a Homegrown Country Market re: Space #10 b. Paul and MaryJean Reid, t/a MaryJean's Bakery re: Space #11 There being no speakers, Mayor Sessoms CLOSED THE PUBLIC HEARING. March 24,2009 1II1 - 46- Item V-J. ORDINANCES/RESOLUTIONS ITEM # 58643 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED in ONE MOTION Items la/ble, 2, 3a/b, 4, 5, 6 (AS AMENDED), 7,8a/b, 9 and 10 of the CONSENT AGENDA. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva Councilman DeSteph will vote a VERBAL NAY on J.l.a. (Parking Meter Rates) and J.2. (Time Limits for Speakers and number of speakers) March 24, 2009 1II1 I - 47- Item V-J.1. a. ORDINANCES/RESOLUTIONS ITEM # 58644 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance re City Code: to AMEND 921-322 and 21-324 re: Parking Meter Rates Voting: 9-1 (By Consent) Council Members Voting Aye: Glenn R. Davis, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: William R. "Bill" DeSteph, Council Members Absent: Ron A. Villanueva Councilman DeSteph explained his NAY vote. Councilman DeSteph believes the City Council should establish taxes and fees, not the City Manager or his designee, as stated in the Ordinance: " ... at an hourlv rate in an amount to be determined bv the Citv Manafler or his desiznee. " Councilman DeSteph does not support the elimination of the residents' free parking on Wednesdays. March 24,2009 IIII ITEM: An Ordinance to Amend Sections 21-322 and 21-324 of the City Code Pertaining to Parking Meter Rates MEETING DATE: March 24, 2009 . Background: Pursuant to City Code Section 21-322(a), parking meters in the City cost seventy five cents ($0.75) per hour. The City has not increased the rates since 1984, although the City's costs for labor, maintenance and materials have increased dramatically. Currently, the average rate charged by Norfolk and other Hampton Road communities is one dollar ($1.00) per hour. City Code Section 21-324(a) provides that parking meter rates apply only between April 1 and October 1. There is no charge for parking in a metered space for the remainder of the year. . Considerations: The ordinance proposes to change the City Code in two respects. First, the ordinance amends City Code Section 21-322(a) to give the City Manager or his designee the discretion to increase the hourly rate for parking in a metered space in the City. The purpose of the amendment is to permit the City Manager to increase the hourly rate for parking in a metered space to one dollar ($1.00) per hour, with the intention that the City Manager would advise City Council of any future rate increases. Second, the ordinance amends City Code Section 21-324(a) to extend, by one month, the timeframe during which the City charges for parking in a metered space. Whereas the existing City Code provides that parking meter rates apply only between April 1 and October 1, the proposed revision provides that parking meter rates would apply between April 1 and November 1. The Convention and Visitors Bureau believes that an increase in the parking meter rate, and an extension of the time in which the metered rates apply, would bring the City in line with the industry standard, and would sustain the City's Parking Enterprise Fund. The two changes proposed by the ordinance would collectively generate an additional one hundred and eighty eight thousand dollars ($188,000) annually for the Parking Enterprise Fund. . Public Information: Information will be provided through the normal agenda process. . Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/Agency: Convention and Visitors Bureau &d~ City Manage~~ ~ . ~&Pt. II 1 AN ORDINANCE TO AMEND SECTIONS 21- 2 322 AND 21-324 OF THE CITY CODE 3 PERTAINING TO PARKING METERS 4 5 SECTIONS AMENDED: S 21-322 AND S 21-324 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Sections 21-322 and 21-324 of the Code of the City of Virginia Beach, 11 Virginia, are hereby amended and reordained to read as follows: 12 13 Sec. 21-322. Deposit of coin required; exemption for senior citizens; overtime 14 parking generally. 15 16 (a) When any vehicle shall be parked in any parking meter space designated 17 as provided in this Division, the operator of such vehicle shall, upon entering such 18 space, immediately deposit, or cause to be deposited, one or more coins of the United 19 States of America in the parking meter adjacent thereto, and such space may then be 20 lawfully occupied by such vehicle during the period of parking time calculated on the 21 basis of seventy five cents ($0.75) per hour at an hourly rate in an amount to be 22 determined by the City Manaoer or his desionee, not to exceed, however, the maximum 23 time prescribed by Section 21-423. If such vehicle shall remain in such parking space 24 beyond the period of parking time calculated on the basis of seventy five cents ($0.75) 25 per hour at an hourly rate in an amount to be determined by the City Manaoer or his 26 desionee, the parking meter shall display a sign or signal showing illegal parking, in 27 which event, the vehicle parked in such parking space shall be considered as parked 28 overtime and beyond the period of legal parking time. 29 30 31 32 Sec. 21-324. Hours and dates during which Division is applicable. 33 34 (a) The provisions of this Division shall apply to parking twenty-four (24) hours 35 per day in all areas, every day including federal and state legal holidays and Sundays 36 from April first to October November first of each calendar year. 37 38 (b) Pursuant to Section 21-320, the City Manager shall have the authority to 39 designate specific areas in which the hours and/or dates that the provisions of this 40 Division is applicable are different from the hours and/or dates set forth in subsection 41 (a), provided that any such area is clearly identified by signs, curb markings or other 42 means. Adopted by the City Council of the City of Virginia Beach, Virginia, on this --.2Aih day of Mrlr~h , 2009. APPROVED AS TO CONTENT: CA11072 R-3 March 17, 2009 APPROVED AS TO LEGAL SUFFICIENCY: ;:e~ f-- City Attorney's Office 1II1 ~'"".....""'\ 1 _ q) ... " (j\t<L\ "'[!' '1 r.:t-........("~,. ..' f,.... ,. , "\ Cr" .. j ,~ . Ii> f' f . () "'" . ,) , ",., ( (' l, ..... '. .;" '" (~ 11 ../'.1 ~' ,'" J .t ~~ 1....,., ... '-" 4,.,/;' "'I' 'I, . ..... ....'" t ts . , '_j ". . ~_1. . ~~<>:J .... . .'t..... 'f\~ ':...J \..~t Olifl 1'1....,\0.....-.... .'\,............... ..., Cit:y c>t-- "Virginia Beach \ Hc',\ ~l'Hnl OFFICE OF THE CITY MANAGER (757) 385-4242 FAX (757) 427-5626 TOO (757) ~ MUNICIPAl CENTER BUILDING 1. ROOM 234 2401 COURTHOUSE DRIVE VIRGINIA BEACH. VA 2345&-9001 March 18,2009 The Honorable William D. Sessoms. Jr. And Members of City Council Subject: Elimination of Wednesday Parking Program and Extension ofthe Paid Parking Season Dear Mayor and Council Members: During the summer of2003, City Council adopted a resolution to provide free parking on Wednesdays for Virginia Beach residents at all municipally-operated parking facilities. The purpose of this program was to encourage residents to visit the resort during mid-week. The initial resolution was from April I, 2003, to September 30, 2003; however, the program was extended to allow further evaluation of its effectiveness. Statistical data has shown no measurable increase in residents' use of resort parking facilities since the program was implemented. The free Wednesday program has cost the Parking Enterprise Fund approximately $153.000 from 2003 - 2008. Staff recommends eliminating the free Wednesday parking program effective April I, 2009. It is also important to note that Virginia Beach is rapidly becoming a year round destination. Specifically, visitation to our resort in October has grown in recent years as has the need for managed parking to accommodate the increase in visitors. The resort has also become a popular special event destination during October with 11 pennitted special events to date for 2009. This increase in resort visitation during the shoulder season has required us to rethink our strategy for the seasonal operation of our municipal parking facilities. To ensure our continuing success and to provide adequate parking services for our guests, staff recommends extending the paid parking season through October 31 each year. We see this as a first step towards the eventual need for year round parking management. Staff will be providing a briefing on Tuesday regarding parking at the oceanfront. We look forward to receiving Council's input. With Pride in Our City, \ JKS/JBRlkd cc: Steve Herbert, Deputy City Manager r'~---- \ "( '-~~.;!;~J7 . ^ ~~'0J . ;.//,., /~' ^ "'\;. ,\ '/.. / . --' ~ "., ~;,,'~~""'\. ' >~I . J. ---. '0p;t~. · 70-,75 dB .' \/x'1--...,>r:::~. ..~. . . t - \ L" . "-1'-'/'" c--~' 'j' .-. ,! \ \ ;';;:, ~ \ ~~j)' ',!, ... r.; \ 0\ \ .... ..........,..... '\:;orifs..... 70 dB Ldn .,' ..... ..... ........... 70-75 dB Ldn .~ .dn , , i /' Ii I .... S ; \..~~I. ~ RT t " ZONING t . 2 ZONING RT . 3 ZONING RT' 3 t~SKIN ROAD GATE'IIAY OVERLAY) ZONING 08 tOLD 8EACtt OVER~Yl ZONING ....~ [/ :J : : 65-70 dl \ \ , . \. <$3\ . \ \~/~ 0 '. _.~', . .. ..->' ' - . ,. ~' .' . .' . \ . ,~~*1;r^,':.' ~\\ : .'t;' >~i\\ ....'~' .Ac< . ~{1F\\ U;'_ J\ ~c.os ,~'.-;li'f-\"\ . .. . .. .. .. .. .. .. .. RT . 1 Z&,ING .. .. RT . a ZONliwG .. .. RT. 3 ZONINcr.. .. .. .. RT. 3 (LASKIN ROAD GATEWAY OVERLAY) ZONI. .. OB (OLD BEACH OV~LA Y) ZONING .. . . .. . . .. .. .. .. .. . . . . . . . : I . . : . : i . i . . . . . . . . . , . . . I l , . , , t.' ......f............~.i..~ ,~;>;;<.!A~.'" .f'i' , I l \ \ ., _'.vO dB Ldn \ \ \ \ \ \ i; ~:( '- \ 1 L. ~l--~ \.1 \ .......................4 II - 48- Item V-J.1.b.c. ORDINANCES/RESOLUTIONS ITEM # 58645 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances re City Code: b. AMEND Chapter 5 re: Animals and Fowl c. REPEAL 933-131 re: Newsracks Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 III 1 AN ORDINANCE TO AMEND CHAPTER 5 OF 2 THE CITY CODE PERTAINING TO ANIMALS 3 AND FOWL 4 5 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 6 BEACH, VIRGINIA: 7 8 That Sections 5-1 to 5-103 of the Code of the City of Virginia Beach, Virginia are 9 hereby repealed, and that Chapter 5 of the City Code is hereby amended and 10 reordained to read as follows: 11 12 ARTICLE I. IN GENERAL 13 14 Sec. 5-100. Violations. 15 16 Unless otherwise specificallv provided, a violation of any provision of this Chapter 17 shall constitute a Class 4 misdemeanor. 18 19 Sec. 5-101. Enforcement of this Chapter. 20 21 The provisions of this Chapter shall be enforced bv the City Animal Control 22 Officers and bv City law-enforcement officers. 23 24 Sec. 5-102. Definitions. 25 26 All definitions of words and phrases contained in the Code of VirQinia & 3.2-6500 27 are hereby adopted and shall applv to such words and phrases when used in this 28 Chapter, unless c1earlv indicated to the contrary. 29 30 ARTICLE II. RABIES 31 32 Sec. 5-200. Vaccination or inoculation of doas or cats. 33 34 (a) It shall be unlawful for any person to own. keep, hold or harbor any dOQ or 35 cat over the aQe of four (4) months within the City. unless such dOQ or cat is currentlv 36 vaccinated with a rabies vaccine, licensed bv the United States Department of 37 AQriculture for use in that species. If, however, the requirement of vaccination or 38 inoculation threatens the phvsical well-beinQ of such dOQ or cat. the owner of such dOQ 39 or cat shall have a certificate siQned bv a licensed veterinarian certifvinQ the same and 40 the owner shall keep such dOQ or cat in quarantine until the same is inoculated or 41 vaccinated. 42 43 (b) Anv person transportinQ a dOQ or cat into the City from some other 44 iurisdiction shall complv with this section within thirty (30) days from the day he brinQs 45 such dOQ or cat into the City, if such dOQ or cat is to be kept in the City more than thirty 46 (30) days. 47 III 48 (c) The vaccination or inoculation required bv this section shall be administered 49 bv or under the supervision of a licensed veterinarian. When so administered, the 50 veterinarian shall issue to the owner of the doa or cat a taa and a certificate of rabies 51 inoculation or vaccination, properlv executed and sianed bv the veterinarian, certifvina 52 that the doa or cat in question has been inoculated or vaccinated in accordance with the 53 provisions of this section. Such taa shall be firmlv attached to the doa's or cat's collar 54 and shall be worn at times when the doa or cat is not on the property of the owner or 55 custodian of the doq or cat. The owner or custodian of the doa or cat shall furnish, 56 within a reasonable period of time, upon request of any Animal Control Officer, law 57 enforcement officer or official of the department of health, the certificate of vaccination 58 for such doa or cat. 59 60 Sec. 5-201. Report of existence of rabid animals. 61 62 Every person havinq knowledae of the existence of an animal apparentlv afflicted 63 with rabies shall report immediatelv to the local health department the existence of such 64 animal. the place where seen, the owner's name, if known, and the symptoms 65 suaaestinq rabies. 66 67 Sec. 5-202. Report of animal bites of human beinas. 68 69 All animal bites of human beinas shall be reported to the department of public 70 health within twenty-four (24) hours after occurrence. Such report shall include the 71 name and post office address of the person bitten, the owner of the bitina animal and a 72 reasonable description of the animal. The responsibilitv of so reportina is mutuallv 73 charaed to attendinq physicians, veterinarians, owners of the bitina animals and 74 persons bitten and any other persons who may have knowledae of such fact. 75 76 Sec. 5-203. Emeraencyordinance. 77 78 Where there is sufficient reason to believe a rabid animal is at larae City Council 79 may pass an emeraencv ordinance as provided in Code of Virainia & 3.2-6522. 80 81 Sec. 5-204. Confinement or destruction of doas. cats and other animals showina 82 sians of or suspected of havina rabies. 83 84 Anv doa, cat or other animal found within the City showina active sians of rabies 85 or suspected of havina rabies shall be confined under competent observation for such 86 time as may be necessary to determine a diaanosis. If confinement is impossible or 87 impracticable, such doa, cat or other animal shall be euthanized bv one of the methods 88 authorized in Code of Virainia & 3.2-6546. 89 90 Sec. 5-205. Destruction or confinement of doa or cat bitten by rabid animal. 91 92 (a) Anv doa or cat. for which no proof of current rabies vaccination is available 93 and that is exposed to rabies bv an animal believed to be afflicted with rabies, shall be 94 confined in a pound, kennel or enclosure approved bv the health department for a III 95 period not to exceed six (6) months at the expense of the owner. An inactivated rabies 96 vaccine may be administered at the beqinninq of the confinement. A rabies vaccination 97 shall be administered prior to release. If this is not feasible. the doq or cat shall be 98 humanelyeuthanized. 99 100 (b) Any doq or cat. for which there is proof of a valid rabies vaccination and that 101 is exposed to rabies by an animal believed to be afflicted with rabies shall be 102 revaccinated immediately followinq the bite and shall be confined to the premises of the 103 owner. or other site as may be approved by the health department. for a period of 45 104 days. 105 106 (c) When any animals. other than a doq or cat, is exposed to rabies by an animal 107 believed to be afflicted with rabies, that newly exposed animal shall be confined at the 108 discretion of and in a manner approved by the health director, or euthanized. 109 110 Sec. 5-206. Confinement or destruction of animal which has bitten person. 111 112 W At the discretion of the director of public health, any animal which has 113 bitten a person shall be confined under competent observation for ten (10) days. unless 114 the animal develops active symptoms of rabies or expires before that time; provided, 115 that a seriously iniured or sick animal may be humanely euthanized and its head sent to 116 the health department for evaluation. 117 118 {Q} At the discretion of the director of health, any potentially rabid animal. 119 other than a doq or cat. that exposes or may have exposed a person to rabies shall be 120 confined in a manner approved by the health department or humanely euthanized and 121 its head sent to the health department for evaluation. 122 123 Sec. 5-207. Concealina or harborina animal to prevent its destruction or 124 confinement under Article. 125 126 It shall be unlawful for any person to conceal or harbor any doq, cat or other 127 animal to keep the same from beinq destroyed or confined in accord with this article. 128 129 ARTICLE III. LOCAL LICENSES 130 131 Sec. 5-300. License required. 132 133 It shall be unlawful for any person to own a doq or cat four (4) months old or 134 older in this City, unless such doq or cat is licensed under the provisions of this article. 135 136 Sec. 5-301. Application: applicant to be City resident. 137 138 (a) Any person may obtain a one-. two-. or three-year City doq or cat license by 139 makinq oral or written application to the city treasurer or an appointed aqent. 140 accompanied by the amount of the license tax and the evidence of vaccination required 141 by section 5-306. II 142 143 (b) Additionallv, anv person obtaininq a rabies vaccination from a vet-aqent as 144 provided in section 5-302 below mav obtain a one-, two-, or three-vear local license that 145 runs concurrentlv with the vaccination administered bv pavinq the tax as provided in 146 section 5-303. The vet-aqent shall onlv have authoritv to license doqs and cats of 147 resident owners or custodians who reside within the Citv. 148 149 (c) Anv person purchasinq a doq or cat license shall provide residencv 150 information to the citv treasurer or the appointed aqent. It shall be unlawful for anv 151 person to make anv false statement in or present anv false evidence with an application 152 submitted under this section, in order to secure a doq or cat license to which such 153 person is not entitled. 154 155 (d) A one-vear license taq shall be valid for UP to twelve (12) months from the 156 date of issue, not to exceed the duration of the current rabies vaccination; a two-vear 157 license taq shall be valid for UP to twentv-four (24) months from the date of issue, not to 158 exceed the duration of the current rabies vaccination: and a three-vear license taq shall 159 be valid for UP to thirtv-six (36) months, not to exceed the duration of the current rabies 160 vaccination. 161 162 Sec. 5-302. Veterinarians as appointed aaents. 163 164 (a) The citv treasurer mav appoint aqents for the collection of the license tax 165 and the issuance of the license taqs. Anv veterinarian who vaccinates or supervises the 166 vaccination of doqs and cats aqainst rabies and is licensed to do business in Virqinia 167 Beach mav submit an application to the citv treasurer for such an aqent appointment. 168 169 (b) The vet-aqent shall have authoritv to issue local license taqs on those 170 occasions where he or she is presented with a current rabies certificate or when 171 administerinq rabies vaccinations to doqs or cats of owners or custodians who reside 172 within the Citv. The issued local taq shall run concurrentlv with the vaccination 173 administered or in coniunction with the current certificate. The vet-aqent shall collect the 174 required fee as outlined below in section 5-303. The fee and the required report shall be 175 submitted to the citv treasurer as provided in the written aqreement required in 176 subsection (d) below. 177 178 (c) For every one-, two-, or three-vear local license taq issued, the vet-aqent 179 shall deduct one-dollar ($1.00) from the amount due to the citv treasurer. 180 181 (d) Each appointed vet-aqent shall aqree in writinq to abide bv procedures and 182 protocols established bv the citv treasurer. Anv vet-aqent who fails to follow the 183 established procedures or protocols mav have his or her authoritv to collect the license 184 taxes and issue the license taqs revoked bv the citv treasurer. 185 II 186 Sec. 5-303. Tax imposed. 187 188 (a) A license tax is hereby imposed on dOQS and cats required to be licensed 189 under this article in the followinq non-refundable amounts: 190 191 (1) For each doq or cat. not spayed or not neutered: 192 1-vear taq . . . $10.00 193 2-vear taq . . . $20.00 194 3-vear taQ . . . $30.00 195 (2) For each doq. spayed or neutered: 196 1-vear taq . . . $7.00 197 2-vear taq . . . $14.00 198 3-vear taq . . . $21.00 199 (3) For each cat. spayed or neutered: 200 1-vear taq: . . . $5.00; 201 2-veartaq... $10.00 202 3-vear taq . . . $15.00 203 (4) Kennel of five (5) to twenty (20) doqs, or five (5) to twenty (20) cats, 204 annuallv: . . . $35.00 205 (5) Kennel of twenty-one (21) or more doqs. or of twenty-one (21) or more 206 cats. annuallv: . . . $50.00 207 208 Pursuant to Virqinia Code & 3.2-6500. a "kennel" is any establishment in which 209 five or more canines. felines, or hybrids of either are kept for the purpose of breedinq. 210 huntinq. traininq. rentinq, buvinq. boardinq, sellinq, or showinq. The owner of a kennel 211 or cattery shall pay the kennel or cattery tax imposed above but shall not be required to 212 also pay the individual doq or cat license fees listed in subsections (1) and (2) for any 213 doq or cat that is owned bv the owner of the kennel or cattery and that is housed within 214 the kennel or cattery. 215 216 (b) A Quarterlv prorated license tax shall be imposed on any dOQ or cat owner 217 when he or she moves to Virqinia Beach or purchases, adopts. or otherwise acquires a 218 doq or cat that has a current rabies vaccination. This prorated fee may onlv be imposed 219 bv the staff at the office of the city treasurer, and no prorated fee may be offered bv 220 appointed aqents authorized bv section 5-302. The prorated fee shall be based on date 221 of residence or date of purchase as compared to the date of rabies expiration. 222 Verification of these dates must be provided at time of licensinQ. Quarterlv prorated 223 license fee shall be determined based upon the amount of time remaininq before the 224 rabies vaccination expires. The Quarterlv prorated fee shall be as follows: 225 226 (1) Twentv-five (25) percent of the annual fee if at least one (1) month, but 227 less than four (4) months. remain before expiration of the vaccination. 228 (2) Fiftv (50) percent of the annual fee if at least four (4) months, but less than 229 seven (7) months, remain before expiration of the vaccination. 230 (3) Seventy-five (75) percent of the annual fee if at least seven (7) months, 231 but less than ten (10) months, remain before expiration of the vaccination. 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 II (4) One hundred (100) percent of the annual fee if at least ten (10) months remain before expiration of vaccination. (c) A Quarterly prorated license fee shall be imposed on any doq or cat owner havinq a valid rabies certificate issued between January 3. 2005 and September 30. 2007. The prorated fee shall be based on the time remaininq on January 1. 2008 and the expiration of the rabies certificate. Quarterly prorated fees shall be imposed only on portions of years. and shall be imposed as follows: (1) Twenty-five (25) percent of the annual fee if at least one month. but less than four (4) months. remain before expiration of the vaccination. (2) Fifty (50) percent of the annual fee if at least four (4) months. but less than seven months. remain before expiration of the vaccination. (3) Seventy-five (75) percent of the annual fee if at least seven (7) months. but less than ten (10) months. remain before expiration of the vaccination. (4) One hundred (100) percent of the annual fee if at least ten (10) months remain before expiration of vaccination. (d) No license tax shall be levied under this section on any doq that is trained and serves as a quide doq for a blind person. that is trained and serves as a hearinq doq for a deaf or hearinq-impaired person. or that is trained and serves as a service doq for a mobility-impaired person. For the purposes of this subsection. a "hearinq doq" is a doq trained to alert its owner. by touch. to sounds of danqer and sounds to which the owner should respond. and a "service doq" means a doq trained to accompany its owner for the purpose of carryinq items. retrievinq obiects. pullinQ a wheelchair or other such activities of service or support. ( e) Any person who applies for a license taq for a neutered or spayed doq or cat shall present. at the time of application. an appropriate veterinarian's certification suitable to the city treasurer attestinq to the neuterinq or spayinQ of the dOQ or cat. If such certification is not so presented. the doq or cat shall be taxed the fee levied on unneutered and unspayed doqs or cats. Sec. 5-304. When tax due and pavable. The license tax on doqs and cats shall be due and pavable as follows: (1) When a doq or cat becomes four (4) months of aqe and receives its first rabies vaccination. (2) When a doq or cat receives a subsequent rabies vaccination. (3) Within thirty (30) days from the day a person brinqs a doq or cat into the City from another iurisdiction. if such doq or cat is to be kept in the City more than thirty (30) days. 11I1 I 275 Sec. 5-305. Failure to pay tax when due. 276 277 It shall be unlawful for the owner of any doq or cat to fail to pay the tax imposed 278 by this article when the same is due. Payment of such tax subsequent to a summons to 279 appear before a court for failure to do so within the time required shall not operate to 280 relieve such owner from the penalties provided for such failure. 281 282 Sec. 5-306. Issuance, composition and contents. 283 284 (a) Upon receipt of a proper application and the prescribed license tax, the city 285 treasurer or an appointed aqent shall issue a doq or cat license: provided that no such 286 license shall be issued for any doq or cat. unless there is presented to the city treasurer 287 or an appointed aqent evidence satisfactory to the treasurer or the appointed aqent that 288 the owner has complied with section 5-200 with respect to such doq or cat. 289 290 (b) Each doq or cat license shall consist of a license tax receipt and a metal taq. 291 Such receipt shall have recorded thereon the amount of the tax paid. the name and 292 address of the owner or custodian of the doq or cat. the date of payment. the period for 293 which the license is issued, the serial number of the taq and whether the license is for a 294 male or female, cat or doq, neutered/spayed or unaltered, or for a kennel. The metal taq 295 issued hereunder shall be stamped or otherwise permanently marked to show the name 296 of the City and shall bear a serial number. 297 298 Sec. 5-307. Preservation and exhibition of license receipt: taa to be worn by doa 299 or cat: exceptions. 300 301 (a) Doq or cat license taqs shall be securely fastened to a substantial collar by 302 the owner or custodian and worn by such doq or cat. The owner of the doq or cat may 303 remove the collar and license taq required by this section when a doq is enqaqed in 304 lawful huntinq; when the doq or cat is competinq in a doq or cat show: when the doq or 305 cat has a skin condition which would be exacerbated by the wearinq of a collar: when 306 the doq or cat is confined: or when the doq or cat is on the property of the owner or 307 custodian of the doq or cat. 308 309 (b) Any doq or cat not wearinq a collar bearinq a license taq marked with the 310 name of the City shall prima facie be deemed to be unlicensed, and in any proceedinqs 311 under this article, the burden of proof of the fact that such doq or cat has been licensed 312 or is otherwise not required to bear a taq at the time shall be on the owner of the doq or 313 cat. 314 315 Sec. 5-308. Removal of taa. 316 317 It shall be unlawful for a person except the owner or custodian, to remove a 318 leqally acquired license taq from a doq or cat. II 319 Sec. 5-309. Duplicate taas. 320 321 If a doo or cat license tao shall become lost. destroved or stolen. the owner or 322 custodian shall at once apply to the city treasurer for a duplicate license tao. presentino 323 the orioinal license receipt. Upon affidavit of the owner or custodian before the city 324 treasurer that the orioinal license tao has been lost. destroyed or stolen. the treasurer 325 shall issue a duplicate license tao. which the owner or custodian shall immediately affix 326 to the collar of the doa or cat. The treasurer shall endorse the number of the duplicate 327 and the date issued on the face of the oriainal license receipt. The fee for a duplicate 328 taa shall be one dollar ($1.00). 329 330 Sec. 5-310. Records and reports: disposition of unsold taas. 331 332 The city treasurer shall enter. in a doa or cat license sales record. the date of the 333 sale of doa or cat taos, includina sales to kennels and catteries. and the names and 334 addresses of persons. in alphabetical order. to whom sold and shall keep an account of 335 the amount of the license tax paid. At the close of the fiscal year, an annual report of 336 such sales shall be filed by the treasurer with the director of finance. who shall audit 337 such records. accounts and unsold doa or cat license taos. 338 339 ARTICLE IV. SEIZURE, IMPOUNDMENT AND DISPOSITION OF ANIMALS BY THE 340 BUREAU OF ANIMAL CONTROL: MANDATORY STERILIZATION. 341 342 Division 1. Animal Seizure, Impoundment and Disposition. 343 344 Sec. 5-400. General. 345 346 (a) The Bureau of Animal Control shall be operated in accordance with Chapter 347 65 of Title 3.2 of the Code of Viroinia and with the reaulations issued by the Board of 348 Aariculture and Consumer Services. 349 350 (b) Any animal seized. impounded or disposed of by the Bureau of Animal 351 Control. shall be seized. impoundment or disposed of in accordance with the provisions 352 of Code of Virainia ~~ 3.2-6546 (when found runnina at larae) and 3.2-6569 (when 353 found abandoned. cruelly treated. or sufferina from an apparent violation of this chapter 354 that has rendered the animal in such condition as to constitute a direct and immediate 355 threat to its life. safety or health.) 356 357 Sec. 5-401. Fees for the impoundment of animals, aenerallv. 358 359 (a) The Bureau of Animal Control is hereby authorized to charae a fee of fifty 360 dollars ($50.00) for the first day an animal is impounded and two dollars ($2.00) per day 361 for each additional day or part thereof for the care of any animal impounded for any 362 reason. 363 364 (b) If a doa or cat impounded under this article is not claimed by its owner or 365 caretaker within five (5) days or within ten (10) days if the doa or cat has a collar, taa, II 366 license tattoo. or other form of identification. it shall be disposed of in accordance with 367 the provisions of section 3.1-796.96 of the Code of Virainia. In the event any person 368 proposes to adopt such doa or cat. pursuant to such section, he shall pay a fee of 369 twenty-five dollars ($25.00) for dOQs: twenty dollars ($20.00) for cats; and fifteen dollars 370 ($15.00) for all other animals to cover the cost of transfer. seizure and veterinary care 371 for the animal. The person desirina to adopt the animal shall sian an adoption contract 372 aareeina to abide by the rules and reaulations of the bureau of animal control. Any 373 unaltered animal must be spayed or neutered by the bureau of animal control prior to 374 adoption for an additional fifty dollar ($50.00) fee to cover the cost of the procedure or 375 within thirty (30) days of the adoption. 376 377 Sec. 5-402. Recovery of veterinary fees. 378 379 Notwithstandina any other provision of this chapter, when any animal in the 380 custody of the Bureau of Animal Control is found iniured. disabled or diseased, the 381 superintendent of the Bureau of Animal Control may request the assistance of a 382 veterinarian to treat such animal. If the owner of the animal is found. the owner shall be 383 liable for all fees to the veterinarian for treatment provided. 384 385 Sec. 5-403. Sale of adopted animal prohibited. 386 387 It shall be unlawful for any person who acquires an animal from the Brueau of 388 Animal Control to sell the animal within a period of six months from the time the animal 389 is acquired from the facility. A violation of this ordinance shall constitute a Class 1 390 misdemeanor. 391 392 Division 2. Mandatory Sterilization. 393 394 Sec. 5-420. Sterilization of adopted dOQS and cats; enforcement; civil penaltv. 395 396 (a) Every new owner of a doa or cat adopted from the Bureau of Animal Control 397 shall cause to be sterilized the doa or cat pursuant to the aareement required by this 398 division. 399 400 (b) A doa or cat shall not be released for adoption from the Bureau of Animal 401 Control unless: 402 403 (1) The animal has already been sterilized: or 404 (2) The individual adoptina the animal sians an aareement to have the animal 405 sterilized by a licensed veterinarian: (i) within 30 days of the adoption. if 406 the animal is sexually mature; or (in within 30 days after the animal 407 reaches six months of aae. if the animal is not sexually mature at the time 408 of adoption. 409 410 (c) The date by which a doa or cat must be sterilized may extend for 30 days 411 upon presentation of a written report from a veterinarian statina that the life or health of 412 the adopted animal may be ieopardized by sterilization. In cases involvina extenuatina II 413 circumstances. the veterinarian and the Bureau of Animal Control may neaotiate the 414 terms of an extension of the date by which the animal must be sterilized. 415 416 (d) Nothina in this section shall preclude the sterilization of a sexually immature 417 doa or cat upon the written aareement of the veterinarian. the Bureau of Animal Control. 418 and the new owner. 419 420 (e) Upon the petition of any animal control officer. the General District Court may 421 order the new owner to take any steps necessary to comply with the requirements of 422 this division. This remedy shall be exclusive of and in addition to any civil penalty that 423 may be imposed under this division. 424 425 (f) Any person who violates subsection (a) or (b) of this section shall be subiect 426 to a civil penalty not to exceed $50. 427 428 5-421. Sterilization aQreement: confirmation: civil penaltv. 429 430 (a) The sterilization aareement required by section 5-420 shall. at a minimum. 431 include the followina information: 432 433 (1) The date of the aareement 434 (2) The names. addresses. and sianatures of the Bureau of Animal Control 435 and the new owner: 436 (3) A description of the doa or cat to be adopted: 437 (4) The date by which the doa or cat is required to be sterilized: and 438 (5) A statement printed in conspicuous. bold print. that sterilization of the doa 439 or cat is required under this division: that a person who violates this 440 division is subiect to a civil penalty: that the new owner may be compelled 441 to comply with the provisions of this division; and that in the event of 442 noncompliance with this division. any monetary deposit collected to 443 ensure compliance may be forfeited. 444 445 (b) Each new owner who siqns a sterilization aareement shall. within seven days 446 of the sterilization. cause to be delivered or mailed to the Bureau of Animal Control 447 written confirmation siqned by the veterinarian who performed the sterilization. The 448 confirmation shall briefly describe the doa or cat include the new owner's name and 449 address; certify that the sterilization was performed; and specify the date of the 450 procedure. The Bureau of Animal Control may charae and collect from the new owner a 451 refundable deposit before releasina a doa or cat for adoption to ensure sterilization. 452 453 (c) Any person who violates this section shall be subiect to a civil penalty not to 454 exceed $150. 455 456 5-422. Notification concerninQ lost, stolen or dead dOQS or cats: civil penaltv. 457 458 If an adopted doa or cat is lost or stolen or dies before the animal is sterilized and 459 before the date by which the doa or cat is required to be sterilized. the new owner shall. 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 II within seven days of the animal's disappearance or death, notify the Bureau of Animal Control of the animal's disappearance or death. Any person who violates this section shall be subiect to a civil penalty not to exceed $25. 5-423. Exemptions. This article shall not apply to: (1) An owner reclaiminq his doq or cat from a Bureau of Animal Control; or (2) The Bureau of Animal Control when an animal is disposed of by sale or qift to a federal aqency. state-supported institution, aqency of the Commonwealth. aqency of another state, or licensed federal dealer havinq its principal place of business located within the Commonwealth; or (3) An animal transferred to another Bureau of Animal Control. 5-424. Actions for civil penalties. Any animal control officer shall be entitled to brinq a civil action for any violation of this division that is subiect to a civil penalty. Any civil penalty assessed pursuant to this division shall be paid into the treasury of the City and used for the purpose of defrayinq the costs of the Bureau of Animal Control. includinq efforts to promote sterilization of cats and doqs. ARTICLE V. ANIMAL WELFARE Division 1. Cruelty to Animals. 5-500. Cruelty to animals: penalty. (a) Any person who: (i) overrides, overdrives, overloads, tortures. ill-treats, abandons. willfully inflicts inhumane iniury or pain not connected with bona fide scientific or medical experimentation. or cruelly or unnecessarily beats. maims, mutilates. or kills any animal. whether belonqinq to himself or another; (ii) deprives any animal of necessary food. drink. shelter or emerqency veterinary treatment (iii) sores any equine for any purpose or administers druqs or medications to alter or mask such sorinq for the purpose of sale. show, or exhibition of any kind, unless such administration of druqs or medications is within the context of a veterinary client-patient relationship and solely for therapeutic purposes; (iv) willfully sets on foot. instiqates. enqaqes in. or in any way furthers any act of cruelty to any animal; (v) carries or causes to be carried by any vehicle. vessel or otherwise any animal in a cruel. brutal. or inhumane manner, so as to produce torture or unnecessary sufferinq; or (vi) causes any of the above thinqs. or beinq the owner of such animal permits such acts to be done by another is quilty of a Class 1 misdemeanor. In addition to the penalties provided in this subsection. the court may, in its discretion, require any person convicted of a violation of this subsection to attend an anqer manaqement or other appropriate treatment proqram or obtain psychiatric or II 507 psycholoqical counselinq. The court may impose the costs of such a proqram or 508 counselinq upon the person convicted. 509 510 (b) Nothinq in this section shall be construed to prohibit the followinq: 511 512 (1) the dehorninq of cattle conducted in a reasonable and customary manner; 513 (2) authorized wildlife manaqement activities or huntinq, fishinq or trappinq as 514 requlated by the Code of Virqinia; or 515 (3) to farminq activities as provided by the Code of Virqinia or requlations 516 adopted thereunder. 517 518 (c) It is unlawful for any person to kill a domestic doq or cat for the purpose of 519 obtaininq the hide, fur or pelt of the doq or cat. A first-time violation of this subsection is 520 a Class 1 misdemeanor. 521 522 (d) Any person convicted of violatinq this section may be prohibited by the court 523 from possession or ownership of companion animals. 524 525 Sec. 5-501. Adeauate space for animals: time restriction on tetherina doas. 526 527 (a) It shall be unlawful to fail to provide any animal with adequate space. 528 "Adequate space" means sufficient space to allow each animal to (i) easily stand, sit. lie, 529 turn about. and make all other normal body movements in a comfortable, normal 530 position for the animal and (in interact safely with other animals in the enclosure. 531 532 (b) When a doq is tethered, "adequate space" means a tether that permits the 533 above actions and is appropriate to the aqe and size of the doq. The tether must be 534 attached to the doq by a properly applied collar, halter. or harness confiqured so as to 535 protect the doq from injury and prevent the doq or the tether from becominq entanqled 536 with other objects or doqs, or from extendinq over an object or edqe that could result in 537 the stranqulation or injury of the doq. Furthermore, the tether must be at least three (3) 538 times the lenqth of the doq, as measured from the tip of its nose to the base of its tail. 539 except when the doq is beinq walked on a leash or is attached by a tether to a lead line. 540 When freedom of movement would endanqer the doq, temporarily and appropriately 541 restrictinq movement of the doq accordinq to professionally accepted standards is 542 considered to be provision of adequate space. 543 544 (c) It shall be unlawful for any doq to be tethered for more than three (3) hours, 545 cumulatively in any twenty-four-hour period. 546 547 Division 2. Danaerous and Vicious Doas. 548 549 5-520. Definitions, as used in this Division. 550 551 (a) "Danqerous doq" means a canine or canine crossbreed that has bitten. 552 attacked, or inflicted injury on a person or companion animal that is a doq or cat. or 553 killed a companion animal that is a doq or cat. When a doq attacks or bites a companion II 554 animal that is a doa or cat. the attackina or bitina doa shall not be deemed danaerous: 555 (i) if no serious physical injury as determined by a licensed veterinarian has occurred to 556 the doa or cat as a result of the attack or bite: (ij) if both animals are owned by the same 557 person; (iij) if such attack occurs on the property of the attackina or bitina doa's owner or 558 custodian; or (iv) for other aood cause as determined by the court. No doa shall be 559 found to be a danaerous doa as a result of bitina, attackinq, or inflictinq iniury on a doq 560 or cat while enaaaed with an owner or custodian as part of lawful huntina or 561 participatina in an oraanized, lawful doa handlina event. 562 563 (b) "Vicious doa" means a canine or canine crossbreed that has: (i) killed a 564 person: (ij) inflicted serious injury to a person, includina multiple bites, serious 565 disfiaurement, serious impairment of health, or serious impairment of a bodily function: 566 or (iij) continued to exhibit the behavior that resulted in a previous findina by a court or, 567 on or before July 1 , 2006, by an animal control officer as authorized by ordinance, that it 568 is a danaerous doa, provided that its owner has been qiven notice of that findina. 569 570 5-521. Enforcement procedures. 571 572 Any law-enforcement officer or animal control officer who has reason to believe 573 that a canine or canine crossbreed within the City is a danaerous doa or vicious doa 574 shall apply to a maaistrate for the issuance of a summons reauirina the owner or 575 custodian, if known, to appear before the General District Court at a specified time. The 576 summons shall advise the owner of the nature of the proceedina and the matters at 577 issue. If a law-enforcement officer successfully makes an application for the issuance of 578 a summons, he shall contact the Bureau of Animal Control and inform them of the 579 location of the doa and the relevant facts pertainina to his belief that the doa is 580 danaerous or vicious. An animal control officer shall confine the animal until such time 581 as evidence shall be heard and a verdict rendered. If the animal control officer 582 determines that the owner or custodian can confine the animal in a manner that protects 583 the public safety, he may permit the owner or custodian to confine the animal until such 584 time as evidence shall be heard and a verdict rendered. The court, throuah its contempt 585 powers, may compel the owner, custodian or harborer of the animal to produce the 586 animal. If, after hearina the evidence. the court finds that the animal is a danaerous doa, 587 the court shall order the animal's owner to comply with the provisions of this section. If, 588 after hearina the evidence, the court finds that the animal is a vicious doa, the court 589 shall order the animal euthanized in accordance with the provisions of the Code of 590 Virainia & 3.2-6562. The procedure for appeal and trial shall be the same as provided by 591 law for misdemeanors. Trial by jUry shall be as provided in the Code of Virainia, Article 4 592 (& 19.2-260 et sea.) of Chapter 15 of Title 19.2. The Commonwealth shall be reauired to 593 prove its case beyond a reasonable doubt. 594 595 5-522. Exceptions to enforcement procedures. 596 597 No canine or canine crossbreed shall be found to be a danaerous dOQ or vicious 598 doa solely because it is a particular breed, nor is the ownership of a particular breed of 599 canine or canine crossbreed prohibited. No animal shall be found to be a danqerous 600 doq or vicious doq if the threat. injury or damaae was sustained by a person who was: 1II1 601 (i) committinq, at the time, a crime upon the premises occupied by the animal's owner or 602 custodian; (iD committinq. at the time. a willful trespass upon the premises occupied by 603 the animal's owner or custodian: or (iiD provokinq, tormentinQ, or physically abusinq the 604 animal. or can be shown to have repeatedly provoked. tormented, abused, or assaulted 605 the animal at other times. No police doq that was enQaqed in the performance of its 606 duties as such at the time of the acts complained of shall be found to be a danqerous 607 doq or a vicious doq. No animal that. at the time of the acts complained of. was 608 respondinq to pain or iniury, or was protectinq itself. its kennel. its offsprinq. a person, or 609 its owner's or custodian's property. shall be found to be a danqerous doq or a vicious 610 doq. 611 612 5-523. When doa owner is a minor. 613 614 If the owner of an animal found to be a danqerous doq is a minor. the custodial 615 parent or leqal quardian shall be responsible for complyinq with all requirements of this 616 section. 617 618 5-524. Reaistration procedures. 619 620 (a) The owner of any animal found to be a danqerous doq shall. within 10 days of 621 such findinq, obtain a danqerous doq reqistration certificate from the Bureau of Animal 622 Control for a fee of $50. in addition to other fees that may be authorized by law. The 623 Bureau of Animal Control shall also provide the owner with a uniformly desiqned taq 624 that identifies the animal as a danqerous doq. The owner shall affix the taq to the 625 animal's collar and ensure that the animal wears the collar and taq at all times. All 626 certificates obtained pursuant to this subsection shall be renewed annually for the same 627 fee and in the same manner as the initial certificate was obtained. The animal control 628 officer shall provide a COpy of the danqerous doq reqistration certificate and verification 629 of compliance to the State Veterinarian. 630 631 (b) All danqerous doq reqistration certificates or renewals thereof required to be 632 obtained under this section shall only be issued to persons 18 years of aqe or older who 633 present satisfactory evidence: (i) of the animal's current rabies vaccination. if applicable; 634 (iD that the animal has been neutered or spayed: and (iiD that the animal is and will be 635 confined in a proper enclosure or is and will be confined inside the owner's residence or 636 is and will be muzzled and confined in the owner's fenced-in yard until the proper 637 enclosure is constructed. In addition. owners who apply for certificates or renewals 638 thereof under this section shall not be issued a certificate or renewal thereof unless they 639 present satisfactory evidence that: (i) their residence is and will continue to be posted 640 with clearly visible siqns warninq both minors and adults of the presence of a danqerous 641 doq on the property; and (iD the animal has been permanently identified by means of a 642 tattoo on the inside thiqh or by electronic implantation. All certificates or renewals 643 thereof required to be obtained under this section shall only be issued to persons who 644 present satisfactory evidence that the owner has liability insurance coveraqe. of at least 645 $100.000, that covers animal bites. The owner may obtain and maintain a bond in 646 surety, in lieu of liability insurance. to the value of at least $100.000. 647 II 648 (c) The owner of any doq found to be danqerous shall reqister the animal with the 649 Commonwealth of Virqinia Danqerous Doq Reqistry, as established by the Code of 650 Virqinia & 3.2-6542, within 45 days of such a findinq by any appropriate court. The 651 owner shall also cause the Bureau of Animal Control to be promptly notified of: (i) the 652 names. addresses, and telephone numbers of all owners; (ii) all of the means necessary 653 to locate the owner and the doq at any time: (iii) any complaints or incidents of attack by 654 the doq upon any person or cat or doq; (iv) any claims made or lawsuits brouqht as a 655 result of any attack: (v) tattoo or chip identification information or both: (vi) proof of 656 insurance or surety bond; and (vii) the death of the doq. 657 658 5-525. Confinement of court-desianated danaerous doas. 659 660 While on the property of its owner. an animal found to be a danqerous doq shall 661 be confined indoors or in a securely enclosed and locked structure of sufficient heiqht 662 and desiqn to prevent its escape or direct contact with or entry by minors, adults. or 663 other animals. The structure shall be desiqned to provide the animal with shelter from 664 the elements of nature. When off its owner's property, an animal found to be a 665 danqerous doq shall be kept on a leash and muzzled in such a manner as not to cause 666 iniury to the animal or interfere with the animal's vision or respiration. but so as to 667 prevent it from bitinq a person or another animal. 668 669 5-526. Danaerous doa status notification reauirements. 670 671 After an animal has been found to be a danqerous doa. the animal's owner shall 672 immediately, upon learninq of same. cause the Bureau of Animal Control to be notified if 673 the animal: (i) is loose or unconfined: or (ii) bites a person or attacks another animal; or 674 (iii) is sold, qiven away, or dies. Any owner of a danqerous do!:! who relocates to a new 675 address shall. within 10 days of relocatinq, provide written notice to the appropriate local 676 animal control authority for the old address from which the animal has moved and the 677 new address to which the animal has been moved. 678 679 5-527. Penaltv. 680 681 (a) The owner of any animal that has been found to be a danqerous doa who 682 willfully fails to comply with the requirements of this section is quilty of a Class 1 683 misdemeanor. 684 685 (b) Any owner or custodian of a canine or canine crossbreed or other animal is 686 quilty of a: 687 688 (1) Class 2 misdemeanor if the canine or canine crossbreed previously 689 declared a dan!:!erous do!:! pursuant to this section. when such declaration 690 arose out of a separate and distinct incident. attacks and iniures or kills a 691 cat or doq that is a companion animal belonqinq to another person; or 692 (2) Class 1 misdemeanor if the canine or canine crossbreed previously 693 declared a dan!:!erous doq pursuant to this section. when such declaration 1II1 694 arose out of a separate and distinct incident. bites a human beina or 695 attacks a human beina causina bodily iniury. 696 697 (c) The provisions of this subsection shall not apply to any animal that. at the 698 time of the acts complained of, was respondina to pain or iniury, or was protectina itself, 699 its kennel. its offsprina, a person, or its owner's or custodian's property, or when the 700 animal is a police doa that is enaaaed in the performance of its duties at the time of the 701 attack. 702 703 Division 3. Prohibited Acts. 704 705 Sec. 5-530. Doas or cats runnina at larae. 706 707 (a) Any person ownina, keepina or harborina any doa or cat within the City that 708 is found runnina at larae shall be auilty of a Class 4 misdemeanor. For the purposes of 709 the section, a doa shall be deemed to run at larae while roamina, runnina or self huntina 710 off the property of its owner or custodian. 711 712 (b) It shall be the responsibility of any person ownina, keepina or harborina any 713 doa or cat within the City to keep such doa or cat confined to the premises of such 714 person. The words "confined to the premises" shall be construed to mean that such doa 715 or cat shall be kept on the owner's or custodian's premises, unless in the custody of a 716 responsible person. 717 718 (c) This section shall not apply where the owner, custodian or trainer has 719 released a doa for the express purpose of huntina aame in an area zoned aaricultural, 720 where it is lawful to hunt. or competina in field trials or trainina, and such doa becomes 721 temporarily out of control of such owner, custodian or trainer or is returnina to the place 722 of release after the hunt or chase. If such doa is observed violatina any other section of 723 this Code, or committina an unlawful act under state law, it shall become subiect to 724 impoundment and the owner, custodian or trainer shall be liable for all fines as 725 prescribed by law. 726 727 Sec. 5-531. Keepina doas under restraint: leash law. 728 729 (a) It shall be unlawful for the owner of any doa to permit the doa to ao upon 730 any public street. sidewalk or riaht-of-way, excludina the public beaches of the City, 731 unless it is kept secured by a leash or lead or other means of restraint not harmful or 732 iniurious to the doa and under the control of a responsible person capable of physically 733 restrainina the doa. 734 735 (b) Any person who does not restrain his doa, in accordance with this section. 736 whether such person be the owner or custodian of such doa, shall be auilty of a Class 4 737 misdemeanor. The animal control officer or police officer may issue a summons to any 738 person he finds in violation of this section. 739 740 ( c) Exceptions. II 741 742 (1) This section shall not apply to any person who uses a doq under his direct 743 supervision while lawfully huntinq, while enqaqed in a supervised formal 744 obedience traininq class or show, or durinq formally sanctioned field trials. 745 (2) This section shall not apply to any person south of the trace line beqinninq 746 at the intersection of Elbow Road and the Chesapeake-Virqinia Beach City 747 boundary line: thence northeastwardly alonq Elbow Road to Salem Road: 748 thence southeastwardly alonq Salem Road to North Landstown Road: 749 thence northeastwardly alonq Landstown Road to Princess Anne Road: 750 thence southeastwardly alonq Princess Anne Road to Sandbridqe Road: 751 thence eastwardly alonq Sandbridqe Road to its intersection with the 752 Atlantic Ocean; with the exception of the subdivisions of Bellwood Estates, 753 Foxfire and Three Oaks and the communities of Sandbridqe and Laq 0 754 Mar, and any other areas zoned for residential use. 755 756 Sec. 5-532. Barkina doas. 757 758 (a) It shall be unlawful for any person to keep a doq without exercisinq proper 759 care and control of such doq to prevent it from disturbinq the peace of others by barkinq 760 in a loud, continuous or untimely manner. Any person, whether as owner. tenant, 761 occupant, lessee or otherwise. in charqe or control of the property where such doq is 762 kept, or the owner of such doq, shall be responsible for exercisinq control of such doq 763 under this section. 764 765 (b) It shall be the duty of any animal control officer or police officer. who may 766 find any doq disturbinq the peace of others by barkinq in a loud, continuous or untimely 767 manner, to advise the owner of such doq. or the person in charqe or control of the 768 property where such doq is kept, to exercise proper control and care of such doq to 769 prevent it from barkinq in such manner. If such owner or person refuses to cooperate 770 with the police officer or animal control officer, or is unable to prevent such doq from 771 barkinq in such manner. or if the animal control officer or police officer is unable to 772 locate any person on the property where such doq is kept, it shall be the duty of the 773 animal control officer or police officer to take such doq into possession. The 774 impoundment provisions of & 5-400 of this Chapter shall be applicable to and followed 775 by animal control officers, the Bureau of Animal Control and police officers upon takinq 776 possession of any doq under this section. 777 778 (c) The animal control officer or police officer may issue a summons to any 779 person he finds in violation of this section. 780 781 Sec. 5-533. Nuisance animals aenerallv. 782 783 (a) No owner shall fail to exercise proper care and control of his animals to 784 prevent them from becominq a public nuisance. Molestinq a passerby. attackinq without 785 seriously iniurinq any person without provocation on two (2) or more occasions, chasinq 786 vehicles. habitually attackinq but not seriously iniurinq other domestic animals. 787 trespassinq upon school qrounds. or trespassinq upon private property in such manner II 788 as to damaqe property shall be deemed a nuisance. Three (3) or more violations of City 789 Code ~ 5.1- 530 in any twelve-month period shall also be deemed a nuisance. 790 791 (b) Any person owninq or havinq in his possession or under his control any 792 animal constitutinq a nuisance shall be summoned before the General District Court of 793 the City to show cause why such animal should not be confined, disposed of or 794 removed or the nuisance otherwise abated and. upon proof that the animal constitutes a 795 public nuisance. the animal in Question shall. by order of the General District Court of 796 the City, either be confined, removed from the City. or the nuisance activity otherwise 797 abated as such court shall order. It shall be unlawful and shall constitute contempt of 798 court for any person to harbor or conceal any animal which has been ordered disposed 799 of or removed by the General District Court. or to fail to confine or restrain an animal 800 when such an order has been entered by the court. 801 802 (c) Any person who owns any doq, cat or other animal that has been adiudqed 803 a nuisance pursuant to this section by the General District Court and who appeals that 804 decision to the Circuit Court shall be responsible for the fees connected with the 805 impoundinq of the animal by the Bureau of Animal Control. If on appeal the Circuit Court 806 determines that the dOQ, cat or other animal is not a nuisance. no such fees for the 807 impoundinq of the animal shall be imposed. 808 809 Sec. 5-534. Allowina doas to urinate or defecate on public or private property. 810 811 It shall be unlawful for any owner or person in control of a doq to: 812 813 (1) Knowinqly or willfully allow his/her doq to urinate or defecate on the 814 private property of other persons without their consent or that of the 815 authorized aqent of the one havinq control of the premises. 816 (2) Knowinqly or willfully allow his/her dOQ to urinate or defecate on public 817 property, except that defecation by a doq on public property shall not 818 constitute a violation of this section if the owner of the doq immediately 819 removes the material defected and disposes of it in a safe and sanitary 820 manne~ 821 822 Sec. 5-535. Doas ridina in motor vehicles. 823 824 (a) It shall be unlawful and a Class 4 misdemeanor for any person who owns or 825 has control of any doq to allow such dOQ to ride in any motor vehicle in any portion 826 thereof that is open in such a manner as to permit such doq to iump out of the vehicle or 827 to be thrown therefrom by acceleration of, stoppinq of, or accident involvinq. such 828 vehicle, includinq, but not limited to. the open bed of a truck. the interior of a convertible 829 vehicle with the top down or removed. the rear storaqe portion of a station waqon with 830 the tailqate open. and the trunk or hatchback portion of any vehicle with the trunk or 831 hatchback open. For purposes of this section. the operator of a motor vehicle shall be 832 deemed to have control of any doq ridinq therein. 833 834 (b) The provisions of subsection (a) above shall not apply to: II 835 836 (1) Anv person who owns or has control of any doq and who allows such doq 837 to ride in the prohibited portion of any motor vehicle if such doq is confined 838 to a caqe of adequate construction and desiqn to prevent its escape 839 therefrom: and 840 (2) Anv portion of a motor vehicle which is fullv enclosed except for open 841 windows. 842 843 Sec. 5-536. Leavina disable or dead animal in road, or allowina dead animal to 844 remain unburied. 845 846 (a) No person shall cast any dead animal into a road or knowinqlv permit any 847 dead animal to remain unburied upon his property when offensive to the public or. 848 havinq in custody any maimed. diseased. disable or infir animal, leave it to lie or be in a 849 street. road or public place. 850 851 (b) A violation of this section shall constitute a Class 3 misdemeanor. 852 853 Sec. 5-537. Disposition of dead animals aenerallv. 854 855 ill1 The owner of any companion animal shall forthwith cremate. bury. or 856 sanitarilv dispose of the animal upon its death. If after notice. any owner fails to do so. 857 the Bureau of Animal Control shall bury or cremate the companion animal and may 858 recover costs as indicated below for this service. 859 860 {!ll When the owner of any other animal or fowl which has died knows of such 861 death, such owner shall forthwith have the body cremated or buried. If the owner fails 862 to do so. any iudqe of a qeneral district court. after notice to the owner if he can be 863 ascertained, shall cause any such dead animal or fowl to be cremated or buried bv a 864 person or entity desiqnated for that purpose. Such a person or entity shall be entitled to 865 recover of the owner of every such animal or fowl that is cremated or buried the actual 866 cost of the cremation or burial and a reasonable fee to be recovered, free from all 867 exemptions in favor of such owner. 868 869 (c) The followinq fee. free of all exemptions in favor of such owner and pavable 870 to the City treasurer are authorized when such cremation services are provided bv the 871 Bureau of Animal Control. The sum of twenty dollars ($20.00) for any small animal. 872 such as a sheep. doq. cat or qoat. 873 874 (d) Nothinq in this section shall be deemed to require the burial or cremation of 875 the whole or portions of any animal or fowl which is to be used for food or in any 876 commercial manner. 877 878 Sec. 5-538. Usina animals as prize or inducement. 879 880 No person shall qive away any live vertebrate animal as a prize for or as an 881 inducement to enter any contest. a qame or other competition or as an inducement to II 882 enter a place of amusement or offer such vertebrate as an incentive to enter into any 883 business aqreement. whereby the offer was for the purpose of attractinq trade. 884 885 Sec. 5-539. Medical research. 886 887 No person shall use or accept for the purpose of medical research or 888 experimentation any animal bearinq a taq, license, or tattooed identification. unless the 889 individual who owns such animal consents thereto in writinq. 890 891 Sec. 5-540. Intentional interference with a auide or leader doa: penalty. 892 893 (a) It is unlawful for a person to. without iust cause, willfully impede or interfere 894 with the duties performed by a doa if the person knows or has reason to believe the doq 895 is a quide or leader doa. A violation of this subsection is a Class 3 misdemeanor. 896 897 (b) It is unlawful for a person to. without iust cause. willfully iniure a doq if the 898 person knows or has reason to believe the doq is a quide or leader doq. A violation of 899 this subsection is a Class 1 misdemeanor. 900 901 (c) As used in this section a "quide or leader doq" means a doa that: 902 903 (1) serves as a doa quide for a blind person as defined in Code of Virqinia & 904 51.5-60 or for a person with a visual disability: 905 (2) serves as a listener for a deaf or hard-of-hearinq person as defined in 906 Code of Virqinia & 51.5-111; or 907 (3) provides support or assistance for a physically disabled or handicapped 908 person. 909 910 Sec. 5-541. Disease prevention. 911 912 It shall be unlawful for any owner of any doq or cat with a contaqious or infectious 913 disease to permit such doq or cat to stray from the owner's premises if such disease is 914 known to the owner. 915 916 Sec. 5-542. Sellina aarments containina doa or cat fur prohibited: penalty. 917 918 It is unlawful for any person to sell a qarment containinq the hide. fur, or pelt that 919 he knows to be that of a domestic doq or cat. A violation of this section is punishable by 920 a fine of not more than $10.000. 921 922 Sec. 5-543. General restriction on keepina of livestock and other animals. 923 924 No person shall keep horses. cows. qoats, sheep, swine or other livestock or 925 other animals within the City except in areas desiqnated for aqricultural purposes or 926 parcels specially desiqnated by the council for the keepinq of such animals. This section 927 shall not be construed to apply to: 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 973 II (1) Companion animals as defined in the Code of Virqinia & 3.2-6500 when such animals are kept as household pets on the premises of the owner; (2) The operation of kennels. when authorized bv appropriate provisions of this Code; or (3) The keepinq of household pets for sale at retail. where such keepinq is authorized pursuant to law. Sec. 5-544. Livestock runnina at larae. It shall be unlawful for any person to allow horses. cows. qoats. sheep. swine or other livestock to run at lame in the City. Sec. 5-545. Fowl runnina at larae. Fowl may be kept onlv in those areas zoned for aqricultural use. It shall be unlawful for any person to allow any fowl to run at lame on any street or any unenclosed lot or qround within the City. Sec. 5-546. Homina or racina piaeons. Notwithstandinq the provisions of sections 5-545. it shall be unlawful for any member of a recoqnized national piqeon association. which supplies piqeons to the armed forces of the United States in times of ememencv. to house or keep in any district. and allow to flv for exercise within the corporate limits. hominq or racinq piqeons which are suitable and the type used as messenqers in time of war and civil defense and which are banded with numbered leq bands showinq the same to be reqistered with such associations. provided. such piqeons are not kept so as to constitute a nuisance or create a hazard to public health. Sec. 5-547. Feedina wildlife on publiclv-owned property. (a) It shall be unlawful for any person to feed any wildlife on publiclv-owned property within the City: provided. however. that no violation shall be deemed to occur unless siqns qivinq notice of the prohibition set forth in this section are posted in a conspicuous location upon the property and a law enforcement officer has provided a prior warninq that continued feedinq of wildlife will result in a violation of this section. (b) For purpose of this section: (1) "Wildlife" shall include all species of wild animals. wild birds. freshwater fish and all domestic. non-native. native or miqratorv waterfowl. (2) "Feed" shall mean to qive. place. expose. deposit. distribute or scatter any edible material with the intention that such material be consumed bv wildlife. III 974 (c) A violation of this section shall constitute a civil infraction punishable by a 975 fine in an amount not to exceed twenty-five dollars ($25.00) for a first violation and fifty 976 dollars ($50.00) for each successive violation. 977 978 ARTICLE VI. BIRD SANCTUARIES 979 980 Sec. 5-600. Established; purpose. 981 982 There is hereby established as a sanctuary for the protection of all birds all of 983 that area north and west of the trace of the line beqinninq at the intersection of North 984 Landino Road and the Chesapeake-Virqinia Beach City boundary line: thence 985 northward alonq North Landinq Road to Indian River Road: thence eastward alonq 986 Indian River Road to New Bridqe Road: thence northeastward alonq New Bridqe road to 987 Sandbridqe Road, thence eastward alonq Sandbridqe Road to its intersection with the 988 Atlantic Ocean: and all land north of False Cape State Park and east of Shipps Bay and 989 Hells Point Creek. 990 991 Sec. 5-601. Sians. 992 993 Siqns statinq that the area desiqnated by section 5-600 is a bird sanctuary may 994 be erected in such area: provided. that the type of siqns and location thereof are first 995 approved by the city manaqer. 996 997 Sec. 5-602. Killina or iniurina birds. etc. 998 999 It shall be unlawful for any person to kill or iniure any bird or to destroy the nests 1000 or eqqs of any bird, except starlinqs, in the bird sanctuary established by section 5-600; 1001 provided that such restrictions shall not prevent the lawful huntinq of qame birds under 1002 authority of a permit issued pursuant to the provisions of section 38-3 of this Code. 1003 1004 ARTICLE VII. WILD HORSES 1005 1006 Sec. 5-700. Definitions. 1007 1008 The followinq words, terms. and phrases, when used in this article, shall have the 1009 meaninqs respectively ascribed to them in this section. except where the context clearly 1010 indicates a different meaninq: 1011 1012 Feral horse means a horse that is either not domesticated or has escaped 1013 domestication and become wild. 1014 Lure means to intentionally entice or tempt by feedinq, pettinq, or any other means 1015 intended to attract. 1016 Veterinary hospital means any establishment maintained and operated by a licensed 1017 veterinarian for the diaonosis and treatment of diseases and iniuries of animals. 1018 Wild horse means (i) a feral horse, or (iD a horse that is the proqeny of the Spanish 1019 mustanq, a breed that was introduced to the Outer Banks of North Carolina as a 1020 domesticated animal bv 16th century explorers but that. over time. has taken on the 1021 characteristics of a feral horse. 1022 1023 Sec. 5-701. Declaration of public purpose. 1024 1025 The provisions of this article are hereby found and declared to be in furtherance 1026 of the public health, safety and welfare. 1027 1028 Sec. 5-702. Penaltv for violation of article. 1029 1030 Unless otherwise provided, a violation of any provision of this article shall 1031 constitute a Class 4 misdemeanor. 1032 1033 Sec. 5-703. Lurina. removina. feedina. etc. 1034 1035 Except as otherwise provided in Section 5-707 of this article. it shall be unlawful 1036 for any person to (i) lure a wild horse into the City limits, (ii) remove a wild horse from 1037 the City limits, Wi) lure a wild horse to within fifty (50) feet of himself/herself or any other 1038 person. or (iv) feed, ride or pet. or approach with the intent to feed. ride. or pet. a wild 1039 horse. 1040 1041 Sec. 5-704. Possessina or harborina. 1042 1043 It shall be unlawful for any person to possess, harbor, or confine a wild horse: 1044 provided, however. that the provisions of this section shall not be applicable to the 1045 confinement of a wild horse in a veterinary hospital for treatment by, or under the care 1046 and supervision of. a licensed veterinarian. 1047 1048 Sec. 5-705. Crueltv. 1049 1 050 (a) It shall be unlawful for any person to molest. torture, torment. beat. mutilate, 1051 kill, wound, injure, poison. or otherwise harm a wild horse, to subiect a wild horse to 1052 conditions which are detrimental to its health. safety or welfare. or to cause or procure 1053 another person to enqaqe in any of the foreqoinq acts. 1054 1055 (b) The prohibitions set forth in subsection (a) of this section shall be deemed to 1056 include any act which causes unjustifiable pain. sufferinq, injury or death to a wild horse. 1057 1058 (c) Nothinq herein shall be construed to prohibit a law enforcement officer. an 1059 Animal Control officer or a licensed veterinarian from destrovinq a badlv injured or 1060 diseased wild horse in a humane manner. 1061 1062 (d) A violation of subsection (a) of this section shall constitute a Class 1 1063 misdemeanor. II 1064 Sec. 5-706. Notification to authorities of iniury to wild horse. 1065 1066 It shall be unlawful for any person who iniures a wild horse to fail to immediately 1067 notify the police department of such iniurv. 1068 1069 Sec. 5-707. Assistance bv licensed veterinarians and other authorized persons. 1070 1071 Animal Control officers, law enforcement officers, licensed veterinarians. and 1072 duly authorized members of the Corolla Wild Horse Fund Committee of O.B.C.. Inc.. the 1073 Virqinia Wild Horse Rescue, and the Sandbridqe Civic Leaque. are hereby authorized to 1074 assist in protectinq the health. safety and welfare of wild horses and ensurinq their safe 1075 return to the Outer Banks of Currituck County. and, when actinq pursuant to the 1076 authority qranted herein. shall be exempt from the provisions of sections 5-703 and 5- 1077 704 of this article. 1078 1079 Sec. 5-708. Interference with enforcement of article. 1080 1081 It shall be unlawful for any person to interfere with the efforts of any Animal 1082 Control officer or law enforcement officer to enforce the provisions of this article. or to 1083 interfere with the efforts of any person duly authorized. pursuant to section 5-707. to 1084 assist in protectinq the health, safety and welfare of wild horses and ensurinq their safe 1085 return to the Outer Banks of Currituck County. North Carolina. 1086 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 24th day of March, 2009. II 1 AN ORDINANCE TO REPEAL SECTION 33- 2 131 OF THE CITY CODE PERTAINING TO 3 NEWSRACKS 4 5 SECTION REPEALED: ~ 33-131 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section 33-131 of the Code of the City of Virginia Beach, Virginia, is hereby 11 repealed as follows: 12 13 Soc. 33 131. Sunset provision. 14 15 This section shall expire on May 1, 2009. 16 17 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 24th day of March, 2009. II - 49- Item V-J.2. ORDINANCES/RESOLUTIONS ITEM # 58646 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to REVISE the City Council Policy re: Time Limits for Speakers at City Council Meetings on the first meeting of each month. Voting: 9-1 (By Consent) Council Members Voting Aye: Glenn R. Davis, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: William R. "Bill" DeSteph, Council Members Absent: Ron A. Villanueva Councilman DeSteph explained his NAY vote. He believes citizens should be allowed to express their concerns on any non-agenda item and not be limited to any number. March 24,2009 1 AN ORDINANCE APPROVING AND 2 ADOPTING A REVISED POLICY 3 PERTAINING TO TIME LIMITS FOR 4 SPEAKERS AT CITY COUNCIL MEETINGS 5 6 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 7 BEACH, VIRGINIA: 8 9 That the City Council hereby approves and adopts the revised policy entitled 10 "Time Limits for Speakers at City Council Meetings," dated March 24, 2009, which 11 policy has been exhibited to the City Council, and a true copy of which is on file in the 12 City Clerk's Office. 13 14 Adopted by the City Council of Virginia Beach, Virginia on this 24th day of 15 March,2009. APPROVED AS TO LEGAL SUFFICIENCY: ~~ City Attorney's Office~ CA11074 R-1 March 18, 2009 City Council Policy Title: Time Limits for Speakers at City Council Meetings Date of Adoption: March 11, 2003 Dates of Revisions: September 14, 2004 Page 1 of 3 March 27, 2007 February 12, 2008 March 24, 2009 1.0 Purpose and Need The purpose of this policy is to provide reasonable, workable time limits for speakers at City Council meetings. The need for such a policy was determined by the City Council at its retreat on February 18, 2003. The policy is intended to recognize and accommodate the mutual interests of persons desiring to speak at City Council meetings, the value to the City Council of public comment, and the need for the City Council to conduct business in an orderly, expeditious manner. This policy shall not apply to the discussion of agenda items by members of the City Council during City Council meetings or to City Staff members acting in such capacity. 2.0 Time Limits 2.1 Planning Agenda Items (a) Planning Agenda items include rezonings, conditional zonings, conditional use permits, land use plan approvals, code and Comprehensive Plan amendments, nonconforming use resolutions, street closures and any other items for which a public hearing is required pursuant to Chapter 22 of Title 15 of the Virginia Code. (b) The applicant, or representative of the applicant (generally, an attorney, professional engineer or other professional retained by the applicant) shall be allowed ten minutes for his or her initial presentation and an additional three minutes for rebuttal if any opponents of the application have spoken. (1) If there is more than one applicant (as, for example, when both the property owner and proposed developer are applicants) or if the applicant and representative both desire to speak, only one of them shall be allowed to speak for ten minutes. Upon request, however, the presiding officer may allow them to divide their time equally, so long as the total time of their initial presentation does not exceed ten minutes. (2) Speakers addressing the City Council in a representative capacity shall not be allowed additional time in which to speak on his or her own behalf. (c) All other persons speaking in support of the application shall be allowed three minutes, and shall not be entitled to speak in rebuttal of any opposition comments. (d) Opponents of an application shall be allowed three minutes each. In the event the opponents are represented by an attorney, engineer or other professional whose profession includes, as a customary part thereof, appearing before governmental bodies in a representative capacity, such representative II Title: Time Limits for Speakers at City Council Meetings Date of Adoption: March 11, 2003 Dates of Revisions: September 14, 2004 Page 2 of 3 March 27, 2007 February 12, 2008 March 24, 2009 shall be allowed ten minutes. In such cases, persons represented shall be encouraged not to provide additional comments. (1) Only one speaker in opposition to the application shall be allowed ten minutes to speak. If there is more than one representative described in subsection (d), only one of them shall be allowed to speak for ten minutes. Upon request, however, the presiding officer may allow them to divide their time equally, so long as the total time of their presentation does not exceed ten minutes. (e) Opponents of an application shall not be entitled to address the City Council in rebuttal of any statements or other material provided to the City Council during the applicant's rebuttal. 2.2 Regular Agenda Items (a) Regular agenda items include all other agenda items at which public comment is allowed. (b) Each speaker, whether or not in a representative capacity, shall be allowed three minutes. 2.3 Comment on Non-Agenda Items (a) Time shall be allotted after the conclusion of the first formal session of each month for non- televised public comments on non-agenda items. (b) Each speaker, whether or not in a representative capacity, shall be allowed five (5) three (3) minutes. (c) No more than three (3) speakers may speak on the same non-aqenda topic at the same meetina. The first three (3) speakers who reaister with the City Clerk will be called to speak. (d) If more than three (3) speakers request an opportunity to speak on the same non-aqenda topic. the City Clerk shall deny the request and advise those persons of the limits contained in this policy. The City Clerk shall also advise such persons that comments may be submitted at writina at anytime for distribution to City Council and that citizens are welcome to contact the City Clerk's to reaister in advance to speak at the followinq month's meetinQ. 3.0 Timekeeping; Written Material (a) The City Clerk shall keep time for each speaker in accordance with the provisions of Section 2, and shall verbally notify the speaker and presiding officer at the expiration of the time allowed for each speaker. (b) Written comments or other material may be tendered to the City Clerk by any person desiring to do so. 4.0 Modification of Time Limits (a) The presiding officer, with the consent of the City Council, may extend or reduce any of the time limits set forth in Section 2. Title: Time Limits for Speakers at City Council Meetings Date of Adoption: March n, 2003 Dates of Revisions: September 14, 2004 Page 2 of 3 March 27, 2007 February 12, 2008 March 24,2009 (b) The time limits for speakers set forth in Section 2 shall be exclusive of the time taken in responding to questions of members of the City Council. 5.0 Registration of Speakers Any person desiring to address the Council shall register with the City Clerk prior to the opening of the meeting. The inadvertent failure to do so shall not, however, disqualify any person from speaking. 6.0 Public Notice of Policy In accordance with City Code Section 2-41, this policy shall be included on the City's internet web site, posted outside of the City Council Chambers, and published in the City Council agenda for each regular meeting. II - 50- Item V-J.3. ORDINANCES/RESOLUTIONS ITEM # 58647 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to DECLARE City-owned land as EXCESS PROPERTY re: 2245 Reuben Street to Tammy McClenney and AUTHORIZE the City Manager to convey the property. DISTRICT 6 - BEACH Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 1 2 AN ORDINANCE DECLARING THE PROPERTY 3 LOCATED AT 2245 REUBEN STREET TO BE IN 4 EXCESS OF THE CITY'S NEEDS AND 5 AUTHORIZING THE CITY MANAGER TO SELL 6 THE PROPERTY TO TAMMY McCLENNEY 7 8 WHEREAS, the City of Virginia Beach (the "City") is the owner of that 9 certain parcel of land located at 2245 Reuben Street (GPIN 2407-02-1616) (the 10 "Property"), more particularly described on Exhibit "A" attached hereto and made a part 11 hereof; 12 13 WHEREAS, the City acquired the Property pursuant to the APZ-1 14 Acquisition Program; 15 16 WHEREAS, the City funded the acquisition of the Property through a 1 7 partnership with the Commonwealth of Virginia (the "Commonwealth"), with each party 18 contributing fifty percent (50%) of the funds; 19 20 WHEREAS, the Property is in the midst of other residences and at the 21 time of acquisition was improved with a residential dwelling; 22 23 WHEREAS, City Council has elected to allow the renovation of the single- 24 family home in order to maintain the integrity of the neighborhood; and 25 26 WHEREAS, the renovation is a grandfathered nonconforming use allowed 27 under current zoning law; 28 29 WHEREAS, a Request for Proposal ("RFP") was advertised for the 3 0 potential sale of the Property; 31 32 WHEREAS, Tammy McClenney ("McClenney") responded to the RFP with 33 an offer to purchase the Property; 34 35 WHEREAS, the APZ-1 Disposition Committee has recommended that City 36 Council declare the Property to be in excess of the City's needs and sell the Property to 37 McClenney; 38 39 WHEREAS, McClenney will renovate the single-family home on the 40 Property to prescribed standards acceptable to the City, including elevated noise 41 attenuation standards, and will thereafter occupy the Property; 42 43 WHEREAS, McClenney will purchase the Property in accordance with the 44 Summary of Terms attached hereto as Exhibit "B" and made a part hereof; 45 4 6 WHEREAS, the City Council is of the opinion that the property is in excess 4 7 of the needs of the City of Virginia Beach. 48 IIII 49 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 50 OF VIRGINIA BEACH, VIRGINIA: 51 52 That the Property located at 2245 Reuben Street (GPIN 2407-02-1616) is 53 hereby declared to be in excess of the needs of the City of Virginia Beach and that the 54 City Manager is hereby authorized to execute any documents necessary to convey the 55 Property to Tammy McClenney, in substantial conformity with the Summary of Terms 56 attached hereto as Exhibit B and such other terms, conditions or modifications as are 57 deemed necessary and sufficient by the City Manager and in a form deemed 58 satisfactory by the City Attorney. 59 60 Further, that the revenue from the sale of the Property in the amount of 61 $85,000 shall be received and appropriated to the Oceana and ITA Conformity and 62 Acquisition Project (CIP 9-060) and the City Manager shall thereafter refund the 63 Commonwealth's portion of such revenue and allocate the remainder for on-going 64 expenses of the City's BRAC program, but such appropriation shall not increase the 65 City's $7.5 million annual acquisition commitment. 66 67 This ordinance shall be effective from the date of its adoption. 68 69 Adopted by the Council of the City of Virginia Beach, Virginia, on the 70 24thdayof March ,2009. R-1 3/12/2009 CA 10986 V:\applications\citylawprod\cycom32\Wpdocs\D012\P005\00006022. DOC APPROVED AS TO CONTENT ~mr4' (', ~.s~ .V) . blic Works kffil E~~T~_ . APPROVED AS TO CONTENT ,. \." (, 191 . . I' i.'''' I .lJ C:/V~ IJ .' \.:~/\tA. \ ~ Management Services / APPROVED AS TO LEGAL SUFFICIENCY W~ ~i"--- City rney's Offic' Department of Law EXHIBIT A GPIN: 2407-02-1616 (2245 Reuben Street) ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, numbered 2245 Reuben Street, formerly Lynnhaven Street, situated in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot 24, as shown on the Revised Plat of Gatewood Park, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 34, at Page 16; reference to which plat is hereby made for a more particular description of said property. IT BEING the same property acquired by deed from Melvin W. Blankenship, dated April 30, 2008, and recorded in the aforesaid Clerk's Office as Instrument No. 20080506000523780. EXHIBIT B SUMMARY OF TERMS SALE OF EXCESS PROPERTY AT: 2245 Reuben Street (GPIN 2407-02-1616) SELLER: City of Virginia Beach PURCHASER: Tammy McClenney PROPERTY: 2245 Reuben Street (GPIN 2407-02-1616) LEGAL DESCRIPTION: ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, numbered 2245 Reuben Street, formerly Lynnhaven Street, situated in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot 24, as shown on the Revised Plat of Gatewood Park, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 34, at Page 16; reference to which plat is hereby made for a more particular description of said property. IT BEING the same property acquired by deed from Melvin W. Blankenship, dated April 30, 2008, and recorded in the aforesaid Clerk's Office as Instrument No. 20080506000523780. SALE PRICE: $85,000 CONDITIONS OF SALE . Property is purchased "As Is, Where Is." . Purchaser, or any future owner, will be subject to a deed restriction preventing participation in the APZ-1 Acquisition Program. . Owners are to acknowledge receipt of lead pamphlet, "Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools". The Purchaser shall provide to the City a lead-based paint clearance prior to occupying the property. . Renovation and noise attenuation shall be started within 90 days of settlement. II . Specific requirements of renovation and noise attenuation include: . Replacement of the roof (thicker, denser roof shingles with a 40 year warranty). . Replacement of the gutters and downspouts, including concrete splash blocks. · Chimney will be properly flashed and tuck-pointed. . Exterior wood trim and woodwork will be replaced where rotted. . Siding and deluxe material (coil stock) to be replaced where damaged and all shall be properly caulked and sealed with color to match adjacent material. . Windows will be replaced (triple glazed vinyl or vinyl clad windows with a listed STC 28 rating, properly sealed and caulked). · Doors will be replaced with solid insulated metal doors with a listed STC 28 rating, along with storm doors if approved by each door manufacturer. · Porches & Steps will need all missing/damaged/rotten wood replaced and all shall be properly secured. · Foundation will be properly tuck-pointed and replacement of foundation vents where needed. · ALL storage sheds shall be removed. · Exterior woodwork, wood trim and doors of the house will need to be painted. · Insulation will be added - (R-40, sound attenuation rated insulation (in the attic areas) at ceiling joist or bottom cord of truss and also in the crawlspace a min. of R-19 sound attenuation rated insulation). · Seal all penetrations and openings through walls, ceilings and floors Le. electrical, plumbing, HVAC, etc. · Secure and seal all plumbing fixtures. · Correct all electrical code violations. · Electrical lighting to be properly secured. · Correct all plumbing code violations. · HV AC system will need to be replaced with a min. 14 SEER and 8.2 HSPF system. · Installation of smoke detectors as per code. · Repair all interior ceilings and walls to match existing. · Secure all wood trim, caulk and paint all ceilings, walls and wood trim. X:\Projects\CIP\Oceana & ITA Conformity & Acquisition (BRAC) CIP 9-060\BRAC\DISPOSITION OF BRAC\RFP\RFP _8_1_08\Council\McClenney Terms.DOC co .2. G ~ . . ~ t~b\'. .,;Z.'i~ %.... Ii-t:: ~~~~! ~ ,;", :.~ ~i.1!1 i i~ ; ; ~i'i~l II g . ~ !.&J. o::IlO" ~~~~1 a sa i- \ .~ ({l (5 :8 'iil 'C 8 .,,; c ~ ~ '5 a, .;:: 7- s:> -c . 7 III - 51 - Item V-J.4. ORDINANCES/RESOLUTIONS ITEM # 58648 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution to COMMEND the Virginia Beach Restaurant Association, Matt Falvey, and Laura and Kal Habr for their successful efforts in supporting State Legislation to Prohibit Smoking in Restaurants. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva This Mayor FORMALLY PRESENTED the Resolution to the Virginia Beach Restaurant Association, Matt Falvey, Laura and Kal Habr after the reading of the Consent Agenda. March 24, 2009 ~N\A'BI:" ~Ci~ ..tkI~..t: r..l~F . ""i~'c,J r-y' . \~) f'O . '" 0 .. (~ '....r (I- ... ~ 7..) (U~ ~ 5:; (*.. ....~ ~ ~ ~ ~) '- v,\...... l/J \\'~.~~"~"'f ~ 'J . ...., L"; ,)t R N~1'~- -~\r'\r".;"" itsnluttntt WHEREAS: For the past several years, the Virginia Beach City Council has sought State legislatIOn to prohibit smoking in restaurants in the interest of public health. both for citizens who wish to gu to smoke~free establishments and for the hospitality workers who are exposed on a daily basis to dangerous second-hand smoke: WHEREAS: After many failed attempts over the past decade, the General Assemhly at its 2009 Session. enacted legislation to pruhibit smoking in restaurants: WHEREAS: Support from the restaurant community was essential to this legislative victor)' and despite opposition from the statewide Restaurant Association. the Virginia Beach Restaurant Association strongly supported this legislation in several important ways. including purchase of a full-page advertisement in the Virginian-Pilot: WHEREAS: Restaurateur !Watt Falvey, is a Past President of the VBRA whose leadership was vitul to ohtaining the hacking of the membership; and, WHEREAS: VBRA members Laura and Kal Habr also were strong supporters of the legislation, as evidenced b.v Governor Tim Kaine's decision to sign the legislation into law at eroc's their Virginia Beach restaurant. NOW THEREFORE, BE IT RESOL VED: That the Virginia Beach City Council hereby commends the Virginia Beach Restaurant Association. Matt Falvey. and Laura and Kal Habr for their leadership in the successful enactment of smoking legislation. which will benefit the citizens of Virginia Beach as well as the hospitality workers who will no longer be forced to choose between earning a living and protecting their health. Given under our hand.. this 24rh day afMarch 2009.' L Wood Requested by Councilmembers Uhrin, Villanueva, and Wilson 1 A RESOLUTION COMMENDING THE VIRGINIA 2 BEACH RESTAURANT ASSOCIATION, MATT 3 FALVEY, AND LAURA & KAL HABR FOR THEIR 4 SUCCESSFUL EFFORTS IN SUPPORTING STATE 5 LEGISLATION TO PROHIBIT SMOKING IN 6 RESTAURANTS 7 8 9 WHEREAS, for the past several years, the City Council has sought state 10 legislation that prohibits smoking in restaurants; and 11 12 WHEREAS, City Council supported such legislation in the interest of public 13 health, both for citizens who wish to go to smoke-free establishments and for the 14 hospitality workers who are exposed on a daily basis to dangerous second-hand smoke; 15 and 16 17 WHEREAS, after many failed attempts over the past decade, the General 18 Assembly earlier this year enacted legislation to prohibit smoking in restaurants; and 19 20 WHEREAS, support from the restaurant community was essential to this 21 legislative victory; and 22 23 WHEREAS, despite opposition from the statewide restaurant association, the 24 Virginia Beach Restaurant Association led the way by strongly supporting this legislation 25 in several important ways, including purchase of a full-page advertisement in the 26 Virginian-Pilot in which the association requested that the legislation be enacted; and 27 28 WHEREAS, Virginia Beach restaurateur Matt Falvey is a past president of the 29 VBRA who helped spearhead the association's initial efforts in support of the legislation, 30 and his leadership was vital to obtaining the backing of the VBRA membership; and 31 32 WHEREAS, VBRA members Laura and Kal Habr also were strong supporters of 33 the legislation, as evidenced by Governor Tim Kaine's decision to sign the legislation 34 into law at their Virginia Beach restaurant. 35 36 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 37 VIRGINIA BEACH, VIRGINIA: 38 39 That the City Council hereby commends the Virginia Beach Restaurant 40 Association, Matt Falvey, and Laura and Kal Habr for the vital leadership they showed 41 in their successful efforts supporting the recently enacted smoking legislation, which will 42 benefit our citizens as well as our City's hospitality workers, who will no longer be forced 43 to choose between earning a living and protecting their health. 44 II 45 Adopted by the City Council of the City of Virginia Beach, Virginia, this 24th 46 day of M;::!rrh , 2009. APPROVED AS TO LEGAL SUFFICIENCY: ~~r City Attorney's Office CA11067 R-3 March 17,2009 III - 52 - Item V-J. 5. ORDINANCES/RESOLUTIONS ITEM # 58649 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution to AUTHORIZE the Virginia Beach School Board to submit the Loan Application to the Virginia Board of Literary Fund re: construction of Great Neck Middle School. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24,2009 1 A RESOLUTION APPROVING AN APPLICATION OF THE 2 VIRGINIA BEACH SCHOOL BOARD TO THE LITERARY 3 FUND OF VIRIGNIA FOR A SCHOOL CONSTRUCTION 4 LOAN IN THE AMOUNT OF $7,500,000 5 6 WHEREAS, in the FY2001-02 Capital Improvement Program, City Council 7 established Project, C.I.P. 1.019, Great Neck Middle School Replacement; 8 9 WHEREAS, additional funding for this replacement was appropriated in the 10 FY2008-09 Capital Budget; 11 12 WHEREAS, Section 22.1-146 of the Code of Virginia, 1950, as amended, 13 authorizes the Virginia Board of Education to make loans from the Literary Fund to local 14 school boards for the purpose of erecting, altering, or enlarging school buildings; 15 16 WHEREAS, any indebtedness owed by the Virginia Beach School Board to the 17 Literary Fund is a valid and legally binding indebtedness of the City of Virginia Beach, 18 Virginia, pursuant to Section 22.1-161 of the Code of Virginia, 1950, as amended; 19 20 WHEREAS, Section 22.1-158 of the Code of Virginia, 1950, as amended, 21 requires that the City shall include in its tax levies and appropriate to the school board 22 funds sufficient to meet the school board's debt service on any such loans; 23 24 WHEREAS, officials of the Virginia Beach School Board have prepared an 25 application addressed to the Virginia Board of Education for the purposes of borrowing 26 from the Literary Fund $7,500,000 to assist with the costs of replacing Great Neck 27 Middle School, to be paid in twenty (20) annual installments with interest thereon at 28 three (3) percent paid annually, which loan will be in lieu of an equivalent amount of 29 general obligation bonds previously authorized for the project; and 30 31 WHEREAS, City Council desires to support this request and believes it to be 32 appropriate. 33 34 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 35 VIRGINIA BEACH, VIRGINIA: 36 37 1. That the application to the Virginia Board of Education for a loan of 38 $7,500,000 from the Literary Fund to the Virginia Beach School Board is hereby 39 approved. 40 41 2. That the City Council include in its levies and appropriate to the Virginia 42 Beach School Board funds sufficient to meet the School Board's debt service on this 43 loan. 44 45 This resolution shall be in effect from the date of its adoption. 46 47 Adopted by the Council of the City of Virginia Beach, Virginia on th~ 24_upay of 48 March, 2009. 49 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~~IlQwjr Finance Department 1:Jffl~ ty t y's Office CA11069 R-2 March 13, 2009 SCHOOL BOARD [laniel D. Edwards Chairman i;,strict 1 CClltef'lllle 513 8eachVlew Drive '!i\ Re~h, VA 23464 .'153551 Ih) .717-0259 Ie) Ilila Sweet Sellitto Vice Ch airman ,\I-I."rge ,J 0. Box 6448 ,\ ;,k;~[]t ;" ~34~t; ,'809>30(0) William J. "BIII" Brunke, IV 'listrict 7 Princess Anne ;099 Foxwood Drive, Suite 201 '.Iiry,nia Beoch, VA 23462 ,'n0134 (w) . 286-2T12 Ie) Todd C, Davidson .\t-Large :>424 Savannah Trail 1.'\ Beach, 'iA 23456 ;:>7-:)330 (w) . 285-941]~ Ie) I:rnma L. "Em" Davis !)Istrir:t f'l- i.fnnhaven ;)5 ~AjGhclelwood 8rive Itc Beach. 'IA 23452 i4iJB91! In) ,'alricia G. Edmonson llstricl 6 u neach '}bJ4ttl ',:,lrGet, i1l:l1b /II I~~ud(;h, ,Ii; ,i:H5~ ';":.0137 {ll) 'Jan R. Lowe "slficI4. !3aYSlue !i)1? lied ;~na[ [{ond ". ;~~R8CIi. 'J t, )2,1.,"'" i:JCr:q;B i ill) Jronl N. Mckenzie 1 strll-:f 3. [-(ose \-l,lll '"WO [3rook';'10Gd r:,'lace ,:'\ n~(:t;h I) 1\ :~'1.1~)3 ~F)-{nh V.) '.llrick S. :';"Ive, 1 ! lrqe ')'};'llCIl :~ L\I..~ I: !'j!l:),! / i.1 ~f) 'I ~tjf',j ~ ,> ',lith .If :In'; i ~ ; i i/p!vn;) ;,;h'f.'Wi :HJPERINTENDENT 'ill\~S C. Menillj {'.LO. "i ~Ad'>\ , . ;" ~ch ;'.; I I '\IiRGINIA BEACH CITY PUBLIC SCHOOLS AHEAD ()F THE CURVE RESOLUTION APPROVING APPLICATION FOR A LITERARY LOAN FOR GREAT NECK MIDDLE SCHOOL WHEREAS, the School Board of the City of Virginia Beach, Virginia and the City Council of the City of Virginia Beach, Virginia have determined that the School Board has an immediate need to implement certain school capital projects including the acquisition, renovation and construction and equipping of improvements to and new facilities for Great Neck Middle School for school purposes (collectively the "Project") and the School Board will make application to the Literary Fund of the Commonwealth of Virginia for a Literary Loan (the "Literary Loan") relating to the Project in the total aggregated amount of $7,500,000.00 or otherwise cooperate with the City to obtain long- term financing of the Project; and WHEREAS, the School Board has embarked upon the construction of a new Great Neck Middle School and the renovation or replacement of related facilities to replace the aging existing building and facilities located at 1848 North Great Neck Road, Virginia Beach, Virginia, 23454; and WHEREAS, the Project requires $62,549,253.00 in monies to pay for the needed construction Project that the City must borrow long term; and WHEREAS, the Commonwealth's Literary Loan Fund is a source needed to assist the City in funding the $62,549,253.00 construction Project. Now, therefore, be it RESOLVED: that the School Board hereby approves the submission of a $7,500,000,00 application for Literary Loan Funds as part of the necessary funding for the Great Neck Middle School construction Project and authorizes the Superintendent or his designee to take other actions as necessary to obtain the Literary Loan; and be it FURTHER RESOLVED: that a copy of this Resolution be spread across the official minutes of this Board, and the Clerk of the Board is directed to deliver a copy of this Resolution to the Mayor, each member of the City Council, the City Manager and the City Clerk. Adopted by the School Board of the City of Virginia Beach, Virginia this 3rd day of March 2009 SEAL ~_,_l_~._.li_'~~ 2_~( /1.. ( ._ L- __ _ ___ Daniel D. Edwards, Chairman Attest: I :l .y) 'I I)' tJ>:..rJ 4\d/'x .: d' fA .lJ.~! t, "'A..f'..fLf..:_. Dianne p, Alexander, Clerk of the Board ,(:ti(j{Jl /\drni'lIs1r.01tKHl U~Jilding . /51; (JH0rqe f'..la:::o!l Drlvr~ . P U l30x ;/L:M . \!Tqlnl:.; ~.~~:(ldl "11\ :i;j,~~)lj_ H.U8 \~ - 53 - Item V-J. 6. ORDINANCES/RESOLUTIONS ITEM # 58650 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, as further AMENDED: Ordinance to AUTHORIZE the extension of the Pilot Program re: Horseback Riding on the Beach and AUTHORIZE the City Manager to execute an Amended Franchise Agreement. DISTRICT 6 - BEACH This Ordinance was further amended: "to allow riding horses on the Beach from April 15, 2009 through },lsy 25, 2()()9 Mav 21. 2009 " Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24,2009 AMENDED VERSION 1 AN ORDINANCE TO EXTEND A PILOT PROGRAM TO 2 ALLOW RIDING HORSES ON THE BEACH FROM APRIL 3 15,2009 THROUGH MAY 21,2009, AND TO AUTHORIZE 4 THE CITY MANAGER TO EXECUTE AN AMENDED 5 FRANCHISE AGREEMENT FOR THAT PURPOSE 6 7 WHEREAS, on February 28, 2006, City Council approved a pilot program to 8 allow the Convention and Visitors Bureau ("CVB") to evaluate horseback riding on the 9 beach during non-summer months, namely from November 1 to April 15 ("Original Pilot 10 Program"); 11 12 WHEREAS, pursuant to Council's authorization in February 2006, the City 13 entered into a franchise agreement on December 18, 2006 for guided horse riding tours 14 on the beach in the Resort Area ("Agreement") with Old Virginia Carriage Co., LLC 15 ("OVCC"); 16 17 WHEREAS, the term of the Agreement was from December 15, 2006 through 18 April 15, 2007; 19 20 WHEREAS, paragraph 2 (b) of the Agreement provides that the Agreement may 21 be renewed by mutual agreement of the parties for up to four (4) additional terms, not to 22 extend beyond April 15, 2011; 23 24 WHEREAS, on October 26,2007, the parties renewed the original Agreement for 25 guided horse riding tours on the beach in the Resort Area for the period of November 1, 26 2007 through April 15, 2008 ("First Renewal Agreement"); 27 28 WHEREAS, on June 10, 2008, City Council approved an ordinance to amend the 29 Virginia Beach City Code pertaining to riding horses on the beach; 30 31 WHEREAS, that City Code section allows horseback riding in the Resort Area, 32 but only if such activity is explicitly authorized by a special events permit or by a 33 franchise awarded by City Council; 34 35 WHEREAS, the code section also had provided that such authorized riding only 36 could occur between November 1 and April 15, but the June 10, 2008 amendment 37 deleted that date restriction; 38 39 WHEREAS, concurrent with the amendment on June 10, 2008, Council approved 40 a new pilot program to allow horse riding on the beach during months outside of the 41 November 1 to April 15 timeframe ("Current Pilot Program"); 42 43 WHEREAS, pursuant to Council's authorization in June 2008, the parties entered 44 into two agreements on September 16, 2008; 45 I I AMENDED VERSION 46 WHEREAS, first, the parties renewed the original Agreement for guided horse 47 riding tours on the beach in the Resort Area ("Second Renewal Agreement"); 48 49 WHEREAS, the term of the Second Renewal Agreement is from April 16, 2008 50 through April 15, 2009, but horse riding is only permitted on the beach during the non- 51 summer months, namely from November 1, 2008 through April 15, 2009; 52 53 WHEREAS, the second September 16, 2008 agreement was an amended 54 franchise agreement ("Amended Agreement"); 55 56 WHEREAS, the Amended Agreement authorized OVCC to offer horse riding on 57 the beach for the term of September 2, 2008 through November 1, 2008; 58 59 WHEREAS, the Second Renewal Agreement is set to expire on April 15, 2009; 60 and 61 62 WHEREAS, CVB has requested more time to test the Current Pilot Program, and 63 is seeking to extend the Second Renewal Agreement from April 15, 2009 through May 64 21, 2009. 65 66 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 67 VIRGINIA BEACH, VIRGINIA: 68 69 That City Council hereby consents to the extension of the current pilot program to 70 permit OVCC to offer guided horse riding tours on the beach in the Resort Area for the 71 period of April 15, 2009 through May 21, 2009, and authorizes the City Manager or his 72 designee to execute an amended franchise agreement with OVCC for said purpose. Adopted by the Council of the City of Virginia Beach, Virginia on the 24th day of March, 2009. 'I - 54- Item V-J. 7. ORDINANCES/RESOLUTIONS ITEM # 58651 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AMEND the Open Air Cafe Regulations re: allowing open air cafes in the Resort Gateway Corridors and West of Pacific Avenue. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24,2009 'I 1 AN ORDINANCE TO AMEND THE CITY'S OPEN AIR CAFE 2 REGULATIONS TO AUTHORIZE OPEN AIR CAFES 3 ALONG RESORT GATEWAY CORRIDORS AND IN AREAS 4 WEST OF PACIFIC AVENUE 5 6 WHEREAS, by resolution adopted November 15, 1985, City Council authorized 7 the City Manager to promulgate Open Air Cafe Regulations ("Regulations"), which have 8 been amended from time to time to address concerns and issues that have arisen 9 during the operation of these cafes; and 10 11 WHEREAS, these Regulations have, to date, prohibited open air cafes west of 12 Pacific Avenue; and 13 14 WHEREAS, the redevelopment of areas west of Pacific Avenue, including the 15 1 ih, 19th and 31st Street corridors, and other areas in the Resort, will attract upscale 16 shops and restaurants; and 17 18 WHEREAS, members of the Resort Advisory Committee ("RAC") and the resort 19 business community requested that the Regulations be revised to allow open air cafes 20 in areas west of Pacific Avenue and in other resort growth corridors, and have endorsed 21 the proposed amendments to the Regulations; and 22 23 WHEREAS, the proposed amendments to the Regulations will permit cafes in 24 gateways west of Pacific Avenue, while minimizing the impact on residential 25 neighborhoods; and 26 27 WHEREAS, the proposed amendments to the Regulations will result in a 28 reformatting of the existing Regulations so that the Regulations are better organized 29 and more user friendly; and 30 31 WHEREAS, approval of the amended Regulations will enhance the Resort Area 32 by providing additional open air cafes and eateries. 33 34 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 35 VIRGINIA BEACH, VIRGINIA: 36 37 That the City Manager is hereby authorized to amend the Open Air Cafe 38 Regulations to permit open air cafes along resort gateway corridors and in areas west of 39 Pacific Avenue, and to reformat the Regulations, as detailed in the proposed revisions 40 presented to the City Council. Adopted by the Council of the City of Virginia Beach, Virginia on the 24th day of March , 2009. APPROVED AS TO CONTENT: epartment of Convention and Visitors Bureau CA11049 R-5 March 9, 2009 'I I APPROVED AS TO LEGAL SUFFICIENCY: ~ ,I I Summary of Revisions to Resort Open Air Cafe Franchise Re2ulations The changes to the Resort Open Air Cafe Franchise Regulations ("Regulations") are designed (1) to permit cafes west of Pacific Avenue; and (2) to allow applicants to easily locate information on particular cafe types. The proposed revisions to the Regulation extend the existing cafe boundaries to permit cafes west of Pacific Avenue. The redevelopment of the 17th, 19th and 31 st corridors, and other areas in the Resort Area, support the need to add a Gateway Cafe to the Regulations. The design and operating requirements of the Gateway Cafe are intended to enhance the pedestrian experience, and to improve the general aesthetics of the area while having a minimum impact on the surrounding residential neighborhoods. Additionally, the revisions reformat the existing Regulations. Each cafe type in the existing Regulations has a specific section with all design and operating requirements. Many of the design and operating requirements are identical in each section. To make the Regulations more user friendly, the Resort Advisory Commission has requested that the format of the Regulations be changed to group all general cafe requirements into one section, and to include the specific requirements for the different cafe types in a separate section. The requirements of each existing cafe type remain the same, and minor word changes help to clarify the regulations. , RESORT OPEN AIR CAFE FRANCHISE REGULATIONS February 04, 2009 CITY OF VIRGINIA BEACH RESORT OPEN AIR CAFE FRANCHISE REGULATIONS SECTION 1. GENERAL PURPOSE Rev. 02/04/2009 1. 1 The Resort Open Air Cafe regulations are for the RT-1, RT-2, and RT-3 zoning districts located in the resort area specifically identified as adjacent to the Boardwalk, Connector Parks, Atlantic A venue, Atlantic Avenue side streets, and in selected Gateway locations west of Pacific Avenue. The Cafe Franchise Program is designed to allow and encourage outdoor cafes on the public right-of- way fronting pedestrian-oriented ways where they are appropriate, and will promote an ambiance conducive to public health, safety, general welfare, and serve as a public amenity. The goals ofthe program are as follows: 1.1.a To promote cafes as visual amenities which improve the appearance and pedestrian ambience of the Boardwalk, Connector Parks, and pedestrian- oriented street frontages. I.l.b To preserve and enhance the character of the resort area and to promote the most desirable use of public property. 1.1.c To ensure that adequate clearance is maintained for pedestrians and bicyclists adjacent to cafes. 1.1.d To establish administrative and enforcement procedures for Open Air Cafes that are effective, efficient, and enforceable. 1.1.e To ensure the construction of attractive, lightweight, removable structures. SECTION 2. DEFINITIONS 2.1 Resort Open Air Cafe: an outdoor dining facility directly adjoining an existing restaurant in the RT-l, RT-2 or RT-3 Zoning District, franchised to operate on public property. All facilities to be considered for this program are required to provide waiter/waitress service, from a full service menu served on non- disposable dishware, in a specific semi-enclosed cafe space as described herein. A franchise for these cafes will only be granted to those restaurants located on private property with 80% or more of interior space dedicated to table and chairs for sit down service by a waiter or waitress. No portion of an Open Air Cafe shall be used for any purpose other than dining or related circulation. Cafes must have direct access to the host restaurant. All cafes and the required adjacent/operating business shall meet all ADA requirements (including rest room facilities within restaurant). Cafe Categories, each with requirements specific to their locations, are described below: II I Category A - Boardwalk Cafe. A resort open air cafe located on public property facing the boardwalk in the R T -1 zoning district. Category B - Connector Park Cafe. A resort open air cafe located on public property in a Connector Park in the R T -1 zoning districts. The Cafe shall not extend East of the building's property line. Category C - Atlantic A venue Sidewalk Cafe. A resort open air cafe located on the public sidewalk along Atlantic A venue in the R T -2 Zoning Districts, not including those located between 15th and 24th Streets (See Category E). Category D - Atlantic A venue Side Street Cafe. A resort open air cafe in the RT-2 or RT-3 zoning district located on the public sidewalk on numbered side streets between Atlantic and Pacific A venues. Category E - Atlantic Avenue Sidewalk Cafe-15th to 24th Streets. A resort open air cafe located on the public sidewalk along Atlantic Avenue in the RT-2 Zoning Districts between 15th and 24th Streets on Atlantic Avenue. Category F - Gateway Cafe. A resort open air cafe located on public property from Pacific Avenue, westward, in the RT-3 Zoning District fronting on city designated Gateway streets. 2.2 Obstruction: Public infrastructure improvements such as traffic signal poles, sign poles, light poles, planting areas, tree grates, trees, trash receptacles, benches, bike racks, parking meters, etc., that may impede the flow of pedestrian traffic. SECTION 3. FACILITIES NOT CONSIDERED FOR THE CAFE PROGRAM 3.1 Fast Food Establishments. An establishment, franchised or otherwise, that offers quick food service of items already prepared and held for service; or prepared, fried, gridd1ed quickly or heated in a device such as a microwave oven; and/or orders are not taken at the customer's table; and food is generally served from a counter in disposable wrapping or containers, will not be considered for outdoor cafes. SECTION 4. OPERATIONAL REQUIREMENTS- ALL CAFES 4.1 In order to be considered for approval under the Resort Open Air Cafe Program, the Applicant must agree to meet the following Operational requirements: 4.1.a Cafes must provide full waiter/waitress table service, from a full service menu served on non-disposable dishware, as defined in par. 2.1. 4.1. b All patrons of cafes shall be seated while in the cafe area. 3 ,I I 4.1.d Patrons may consume alcoholic beverages in these cafes that have been prepared within the host restaurant, in compliance with state ABC regulations. Cafe employees shall not prepare or pour alcoholic beverages within any cafe. 4.1.d Solicitation of any type, as described in Section 26-3 of the City code, from any cafe will result in immediate termination of franchise agreement. SECTION 5. ENTERTAINMENT/AMPLIFIED MUSIC 5.1 Live or recorded entertainment is allowed under the following conditions in all outdoor cafes, unless noted otherwise in specific Cafe Categories herein. 5.1.a Between the hours 12:00 p.m. and 11 :00 p.m. only. 5.1.b Solo or duo live entertainment only. Connecting cafes do not constitute more than one entertainment venue. 5.1.c The cafe franchise agreement administrator/city officials shall have the sole discretion in determining if the music sound level emanating from the cafe is considered loud or disturbing. Amplification of music shall be directed wi thin cafe area. 5.1.d Cafe operators shall receive one written warning that the music does not comply with the cafe regulations. Upon notice of a second violation, the cafe will forfeit their entertainment within the cafe for the remainder of the season. Subsequent violations will be grounds to terminate the cafe franchise agreement. SECTION 6. GENERAL CAFE REQUIREMENTS Requirements apply to all outdoor cafes, unless noted otherwise in specific Cafe Categories herein. 6.1 Size: Improvements on public property may not cover more than the front face of the operating business building or exceed a total of 800 sq ft. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of the Resort Area Facade Program and the Resort Streetscape Improvements. The size of the cafe must maintain clearances as outlined in each section from public infrastructure improvements such as traffic signal poles, sign poles, light poles, planting areas, tree grates, trees, trash receptacles, benches, bike racks, parking meters, etc., that may impede the flow of pedestrian traffic. 4 6.2 Access: Only one well-defined entrance opening is permitted to the cafe area; the cafe area must be connected to the corresponding business entrance. Orientation of that opening will be reviewed by the City staff according to pedestrian safety and the aesthetic requirements of each location. Access will meet all ADA Standard Disability Access requirements. 6.3 Perimeter Fence: A perimeter fence is required, and shall be a minimum ofthirty (30) inches in height and maximum 42" height. It shall be constructed of finished painted wood, factory-finished metal, or a manufactured fiberglass railing system. All cafe perimeter fence systems shall be reviewed by the city prior to approval for their use. Planter systems are encouraged to complement the fencing system. 6.4 Canopy: Canopies, where permitted or required, shall be a soft top, demountable canopy constructed as specified herein. The canopy shall only cover the top of the Cafe, except that transparent vinyl or plastic curtains may be used on the sides as windbreaker during inclement weather only. At no point shall the height of the canopy be lower than eight (8) feet above the floor of the Cafe. The valence of the awning shall not exceed twelve (12) inches in height. Ifumbrellas are used the name of the cafe may appear on the valence of each umbrella. All canopies shall be constructed of fire resistant vinyl fabric or canvas as approved by the City of Virginia Beach Planning Department/Permits and Inspection Division, and shall meet all applicable Building, Structural, and Fire Codes. Supporting Structure shall be metal pipe or tube system not to exceed 2" in Diameter. Requests for Deviations shall be individually reviewed by the City. The structure must be dismantled easily and not permanently attached to adjacent building. 6.5 Fixtures & Furnishings: The furnishings of the interior of a resort open air cafe shall consist solely of moveable tables and chairs and decorative accessories. Tables and chairs shall be constructed of stainless steel, fiberglass, powder coated aluminum or other metal, painted wood, high density polyethylene (HDPE) or an approved site furnishing system. All cafe furnishings shall be reviewed by the city prior to approval for their use. . In no event shall such objects penetrate the exterior perimeter boundary or the canopy. Planter boxes on cafe railing are encouraged. All movable objects required for operation of a resort cafe shall be removed from the cafe area and stored out of view during adverse weather conditions acclaimed by the City, or when the cafe is not in operation for more than a five (5) day period. These objects include tables, chairs, furnishings, and decorative fixtures. Plantings in boxes or planters shall be properly maintained year round, or shall be removed when the cafe is not in operation. 5 I II 6.6 Lighting: Only incandescent lighting, candles, Christmas lights, and ceiling fans are permitted on the interior of the Boardwalk Cafe. 6.7 Signs: One (1) menu board is permitted within the perimeter of the resort open air cafes. The menu board shall not be larger than five (5) square feet. The name of the establishment may be painted or sewn in a single location on the valence of the canopy with a maximum of eight (8)-inch lettering. 6.8 Storage: Storage of any kind is not permitted on public property; including trash or refuse. 6.9 Maintenance: Cleanup and necessary maintenance of the area of a Resort Open Air/Boardwalk Cafe including landscaped areas, planter boxes and City property adjacent to cafe is the sole responsibility of the designated franchisee. SECTION 7. SPECIAL CAFE REQUIREMENTS, BY CATEGORY 7.1 Category A - Boardwalk Cafes. 7.1.a Setbacks: Category A cafes shall have a minimum setback often (10) feet from the western edge of the bicycle path. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. 7.1.b Canopy: Category A Cafes are required to have a Canopy complying with Section 6.4. 7.1.c Plantings: Planting beds shall be provided and properly maintained by the owner/applicant around the perimeter of the Boardwalk Cafe. The Planting bed(s) adjacent to the cafe shall extend a minimum of five (5) feet and a maximum of ten (10) feet into the right of way. Site specific issues that warrant a deviation from the minimum and maximum requirement will be considered. The City Landscape Services Department shall review and approve the applicant's landscape plan prior to operating the cafe. 7.1.d Access: Only one well-defined entrance opening connected to an existing or new walkway system which connects to the boardwalk shall be permitted. Access will meet all ADA Standard Disability Access requirements. Only one five (5) foot walkway is permitted. 7.1.e Bicycle Parking Area: Bicycle parking areas are recommended to be integrated with the cafe improvements. The bicycle parking area will be approximately eight (8) feet by eleven (11) feet concrete, brick pavers, or similar paved area with a single load bicycle rack. This area will not be included in franchise cafe area allowance; however, it should be made available for general public use. 6 'I I 7.1.f Floor: Floor shall be a smooth clean permanent surface as required by the City of Virginia Beach Health Department. 7.1.g Perimeter Fence: In addition to materials listed in Sec 6.3, glass block, pre-finished decorative masonry block or brick are also permitted materials in this cafe category. 7.2 Category B - Connector Park Cafes. 7.2.a Setbacks: Category B Cafes are required to have minimum setback often (10) feet from the Atlantic Avenue curb line. The Cafe is not to extend east of the building's property line. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. 7.2.b Floor: Floor shall be a smooth clean permanent surface as required by the City of Virginia Beach Health Department. 7.2.c Canopy: Canopies are permitted but not required unless hotel rooms and balconies are directly above cafe area. Umbrellas are permitted. 7.2.d Perimeter Fence: In addition to materials listed in Sec 6.3, glass block, pre-finished decorative masonry block or brick are also permitted materials in this cafe category. 7.2.e Planting: Planting beds shall be provided and properly maintained by the owner/applicant around the perimeter of the Boardwalk Cafe. The Planting bed(s) adjacent to the cafe shall extend a minimum of five (5) feet and a maximum often (10) feet into the right of way. Site specific issues that warrant a deviation from the minimum and maximum requirement will be considered. Additional planting may be required by City Staff for Category B Cafes (Connector Park Cafes) to tie in with existing connector park configurations. The City Landscape Services Department shall review and approve the applicant's landscape plan. 7.2.f Access: One well-defined opening is required. Orientation of that opening will be reviewed by the City staff according to pedestrian safety and the aesthetic requirements of each location. Access will meet all ADA Standard Disability Access requirements. 7.2.g Bicycle Parking Area: Bicycle parking areas are not allowed in the Connector Parks. Category B Cafes (Connector Park Cafes) must use existing parking racks. 7.2.h Service Bar Openings: Service bar openings for waiter/waitress use are allowed into a Connector Park Cafe only. Service bar opening will be maximum of 5 feet wide. Operation of bar must meet all ABC regulations. 7 II II 7.3 Category C - Atlantic Avenue Sidewalk Cafe, not including those located between 15th and 24th Streets (See Category E) 7.3.a Setback: Category C Cafes are required to be setback a minimum of eight (8) feet from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured from the portion of the cafe frontage which is nearest the obstruction. 7.3.b Floor: Only the existing paving or sidewalk is to be used for the cafe. Should the building be setback from the curb line, the development of new surfaces for seating may be permitted. 7.3.c Canopy: Canopies are not allowed for Category C Cafes, but awnings, as allowed through the Resort Area Facade Program are permitted. Awnings extending beyond the dimension permitted in the Resort Area Facade Program (3 ') may be permitted based on review by City staff and the Resort Advisory Commission (RAC). Umbrellas are permitted. If umbrellas are used, the name of the cafe may appear on the valence of each umbrella. 7.3.d Planting: Perimeter planter boxes are required; selection ofplantings will be reviewed and approved by City staff. All such planters or p1antings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.3.e Size: Category C Cafes may not cover more than the front face of the operating business building. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of the Resort Area Facade Program and the Resort Streetscape Improvement Program 7.3.f Bicycle Parking Area: Bicycle parking areas are not allowed. Category C Cafes must use existing bike racks. 7.4 Category D - Atlantic Avenue Side Street Cafe. 7.4.a Setback: Category D Cafes (Atlantic Avenue Side Street Cafes) are recommended to be set back eight (8) feet from the curb line, but a minimum distance of (6) feet clear sidewalk width, from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured 8 II I from the portion of the cafe frontage which is nearest the obstruction. 7.4.b Floor: Only the existing paving or sidewalk is to be used for the cafe. Should the building be setback from the property line, the development of new surfaces for seating may be permitted on private property only. 7.4.c Canopy: Canopies are permitted but not required. Umbrellas are permitted 7.4.d Planting: Perimeter planter boxes are required; selection of p1antings will be reviewed and approved by City staff. All such planters or plantings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.4.e Size: A Category D Cafe may not cover more than the front face of the operating business building. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of Resort Area development guidelines in affect at the time of application. 7.4.f Bicycle Parking Area: Bicycle parking areas are not allowed. Category D Cafes must use existing bike racks. 7.5 Category E - Atlantic Avenue Sidewalk Cafe--15th to 24th Streets. 7.5.a Setback: Category E Cafes are required to be setback a minimum of eight (8) feet from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured from the portion of the cafe frontage, which is nearest the obstruction. 7.5.b Floor: The existing paving or sidewalk is to be used for the cafe. Should the building be setback from the curb line, the development of new surfaces for seating may be permitted on private property only. 7.5.c Awnings: Canopies are not allowed for Category E Cafes, but awnings as allowed through the Resort Area Facade Program are permitted. Awnings extending beyond the dimension permitted in the Resort Area Facade Program (3') may be permitted based on review by City staff and the Resort Advisory Commission (RAC) Planning Design Review Subcommittee (PDRC). Umbrellas are permitted. Ifumbrellas are used the name of the cafe may appear on the valence of each umbrella. 9 II II 7.5.d Planting: Perimeter planter boxes are required; selection ofplantings will be reviewed and approved by City staff. All such planters or p1antings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.5.e Access: Cafes shall be accessed from the interior of the restaurant and not from the Atlantic Ave. sidewalk area. Special consideration should be given to refurbishment of the restaurant fa<;ade to allow access to the cafe from the interior of the restaurant at another location than the main restaurant entrance. French doors or similar door systems should be used to open the existing restaurant directly on to the outdoor cafe so as to not conflict with the main restaurant entrance area. Orientation ofthat opening will be reviewed by the City staff according to pedestrian safety and the aesthetic requirements of each location. Access will meet all ADA Standard Disability Access requirements. 7.5.f Size: A Category E Cafe may not cover more than the front face of the operating business building. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals ofthe Resort Area Facade Program and the Resort Streetscape Improvement Program. 7.5.g Bicycle Parking Area: Bicycle parking areas are not allowed. Category E Cafes must use existing bike racks. 7.5.h Special Franchise Requirements: Every Category E Cafe (Atlantic Avenue Sidewalk Cafe--15th to 24th Streets) franchise agreement shall contain the following special requirements, which shall control in the event of a conflict with any other provisions of the Resort Open Air Cafe Regulations: 1. Alcoholic beverages shall only be served with meals, and only in unbreakable drink ware; 2. The operator shall not permit persons other than patrons or employees of the establishment to enter the premises or to congregate therein, other than those patrons seated at tables provided by the establishment; 3. In the event a public safety official determines that the open air cafe should be closed earlier than the normal closing time for reasons of crowd control, unruly behavior either within the establishment or in nearby areas, or for other reasons related to preservation of public safety or public order, the operator shall 10 I I !I close the open air cafe immediately or at such later time as directed by the public safety official, and the willful failure or refusal of any person to comply with such order shall be punishable as a misdemeanor, as provided by City ordinance; 4. The establishment must offer a full service menu (a copy of which shall be provided to the City Manager as part of the franchise application), and the open-air cafe may remain open only so long as all regular menu items served by the establishment are available to patrons; All tables and chairs shall be removed from the premises upon the close of business each day and stored inside the establishment, and the operator shall not permit the franchised area to be used for storage of furniture or equipment or for any purpose other than as an open-air cafe; 6. The operator shall not allow persons awaiting entry into the establishment or open-air cafe to form lines on the sidewalk, but shall admit patrons only from the inside of the establishment; and 7. The operator shall strictly comply with all fire, building, zoning, alcoholic beverage control, or health regulations in the operation of the open air cafe and the remainder of the establishment. 7.5.i Fa~ade Review and Improvements: Prior to the consideration of any application for a Category E (Atlantic Avenue Sidewalk Cafe--15th to 24th Streets) franchise, the applicant must submit a preliminary concept ofthe proposed cafe, including photographs of the existing fa<;ade of the associated restaurant building and adjacent building fa<;ades, and architectural renderings demonstrating how the cafe will be integrated with the associated restaurant building's fa<;ade. 7.5.j The fa<;ade must be structurally sound and in good repair, and the proposed cafe and fa<;ade must be consistent with the Resort Area Fa<;ade Program Design Guidelines. 7.5.k The Resort Advisory Commission Design Committee will review the proposed cafe and the condition of the existing building fa<;ade and either (1) approve the preliminary concept or (2) provide the applicant with recommended changes for the proposed cafe, the fa<;ade or both. Only after the preliminary concept is approved will an application for a Category E franchise be considered under section 6.1. 7.5.1 The effective date ofthis subsection shall be January 1, 2006. No Category E franchise shall be granted or renewed for a term that extends beyond April 30, 2006, unless the franchisee has complied with the 11 I II requirements of this subsection. 7.6 Category F - Gateway Cafe. 7.6.a The scale, proportion, material selection, and overall design of each Gateway Cafe shall be reviewed by City staffto ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of Resort Area development guidelines in affect at the time of application. 7.6.b Setback: Category F Cafes are required to be setback a minimum of eight (8) teet from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured from the portion of the cafe frontage which is nearest the curb or obstruction. 7.6.c Floor: The existing paving or sidewalk, if existing, shall be used for the cafe floor. New floor shall be a smooth clean permanent surface as required by the City of Virginia Beach Health Department. Material shall be appropriate for each given location, and shall be reviewed and approved on a site-specific basis. 7.6.d Awnings: Requests for Canopies will be reviewed on a case by case basis, depending on location. 7.6.e Planting: Perimeter planter boxes are required; selection ofplantings will be reviewed and approved by City staff. All such planters or p1antings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.6.f Size: A Category D Cafe may not cover more than the front face of the operating business building. 7.6.g Given the close proximity of Category F cafes to residential neighborhoods, cafe shall remain open no later than midnight. Live Music shall not be permitted after 10:00 pm Sunday through Thursday nights. SECTION 8. ADMINISTRATION AND ENFORCEMENT 8.1 Franchise Requirements 12 II II In order to create a Resort Open Air Cafe on public property, the granting of a franchise agreement is required. Franchise Agreements shall be granted only after project data has been properly submitted by the Applicant, reviewed by City Staff and the Resort Advisory Commission, and approved by the City Council of Virginia Beach. The regulations herein are intended to establish the necessary criteria with which the Resort Open Air Cafes shall first comply in order to be eligible for consideration for such a franchise agreement. A Non-refundable fee of one-hundred dollars ($100.00) shall be paid to the City tor the processing of an application for a franchise. The City Manager or his designated representative shall not accept any application unless such fee be paid at the time application is filed. City Council may deny or grant a franchise subject to such terms and conditions as City Council may, in its discretion deem proper. Notwithstanding any other provision of law, City Council shall deny any franchise request it determines, in its discretion, to be detrimental to the public health, safety, and welfare or interest. Upon approval of the Franchise Agreement, the Applicant shall satisfy Insurance requirements and Franchise Fees, as listed below, prior to beginning construction of the Cafe. 8.2 Submittal and Review Procedures Construction activity is prohibited on Resort Open Air Cafes between May 1 and October 1. Review and approval procedures require a minimum of 3 months; longer if changes to original plans are required. It is strongly suggested the Applicant begin the Cafe Franchise review process in November to allow sufficient time for approval procedures and construction completion before the May 1 st deadline. 8.2.a Preliminary Review (Approximate review time - 1 week) 8.2.b Prior to submitting a Franchise Application, the Applicant shall review the RESORT OPEN AIR CAFE FRANCHISE REGULATIONS, herein, and submit Preliminary project information to the designated Convention and Visitors Bureau Resort Management Office (CVB) representative (757-385-4800) to determine the feasibility of the project. The following are required for the preliminary review: 1. A Survey (if available) of the existing property. 13 'I I' 2. A rough drawing showing the existing building outline, property lines, and proposed cafe location. 3. Photographs of the proposed cafe site, existing building fa<;ade(s), and adjacent property on each side. Data may be submitted in person, or by mail or email. ~ If the project is deemed feasible, the Applicant will be instructed to complete a Cafe Franchise Application. 8.2.c Cafe Franchise Application (Approximate review time - 4 to 8 weeks, plus time for revisions and resubmitta1, if required) Applicant shall submit completed Cafe Franchise Application, along with the $100.00 Application Fee, to the designated CVB/ Resort Management representative. Applications for cafe franchises will not be accepted after March 1, preceding the summer season of anticipated operation. No application shall be processed for the year in question that fails to meet the application deadline. The following are required to be submitted, in triplicate (3 copies) along with the application, for review: 8.2.d Physical Survey: Sealed by land surveyor, no older than 90 days. Survey shall show all existing property lines, easements, buildings and other structures, to the curb line and/or edge of boardwalk/connector park, and including public sidewalk showing all obstructions such as light poles, trash receptacles, etc, for the length of the property across it's street (or boardwalk/connector park) frontage. 8.2.e Photographs ofthe proposed cafe site, existing building fa<;ade(s), and adjacent property on each side. 8.2.f Proposed Site Development Plan, including Landscape Plan, where landscape is required. The site plan shall be prepared using a minimum scale of 1" = 10'-0" and shall show by name and dimension, proposed and existing walkway systems, and proposed Open Air Cafe, setbacks, minimum clear path on sidewalk between face of cafe and obstructions, access into cafe, and from cafe into attached restaurant, perimeter fence, and table/chair layout. 8.2.g Front & Side Exterior Elevations: Elevations shall be prepared using a minimum scale of 1/4" = 1'-0" and shall show proposed 14 I I' cafe' and fayade of existing structure directly adjoining the proposed cafe. A minimum of two elevations are required: one front elevation and one side elevation, dimensioned to show height of vertical elements. All materials shall be identified on drawings. 8.2.h Finish Schedule: Shall include all finish materials proposed for the Open Air Cafe construction including flooring, railing system, canopy and canopy supports, and proposed plant materials. 8.2.i Proposed Fixtures and Furnishings: Images of all proposed furnishings, including tables, chairs, umbrellas, planters, etc. 8.2.j A letter of support from the property owner (if the Applicant is not the property owner) for the cafe addition. 8.2.k Upon receipt ofthe complete Application package, the CVB/Resort Management Office will forward a copy to the Planning &Design Review subcommittee (PDRC) of the Resort Advisory Commission (RAC) for review and comment at the next scheduled meeting. The CVB representative will assist the Applicant in establishing a review date and time. The Applicant (or representative designated by the Applicant) is encouraged to attend the review session and to bring other supporting drawings, images, etc., if desired. 8.2.1 Upon successful completion ofthe review, the PDRC will recommend approval and/or provide written review comments indicating required revisions. The recommendations will be forwarded to the next scheduled meeting of the Resort Advisory Commission for a vote to support the Application. If supported, The RAC will convey this recommendation to the City Council. The CVB/Resort Management Office Representative will request that the City Attorney's Office draft an agenda request and ordinance for City Council's approval or denial of the Cafe Franchise Agreement. 8.3 Permits and Inspections Review (Approximate approval time - 2 to 4 weeks) 8.3.a If the Cafe project is supported by the RAC, the Applicant is encouraged to submit drawings to the Virginia Beach Department of Permits and Inspections to determine review and permitting procedure. 15 I II 8.3.b Applicant will be required to submit drawings and payment of required review fees. Permits and Inspections will review the plans to determine compliance with applicable Building Codes, and will notify applicant the level of review required. Once approved, the building permit will be held pending approval or denial of the cafe Franchise agreement by City Council. If approved by City Council, applicant may obtain required building permit and any required right of way permit. 8.3.c Approval of the City of Virginia Beach Health Department and (when applicable) the State of Virginia Alcoholic Beverage Control Board is required for operation Note: Cafes connected to a hotel/motel may be required to install a fire suppression sprinkler system if side curtains are installed. Confirm requirements with Permits and Inspections. 8.4 Insurance and Fees 8.4.a Applicant will provide liability insurance coverage not less than one million dollars ($1,000,000) for personal injury and property damage as required. 8.4.b The franchise fee is to be determined on a gross square foot basis/per year, payable to the City of Virginia Beach no later than May of the year in effect. The fees are as follows: Category A: Category B: Category C: Category D: Category E: Category F: Boardwalk Cafe Connector Park Cafe Atlantic Avenue Sidewalk Cafe Atlantic Avenue Side Street Cafe Atlantic Avenue Sidewalk Cafe-15th to 24th Streets Gateway Cafe 2008 2009 2010 2011 2012 Category A 7.65 7.88 8.12 8.37 8.63 3% ** Category B 6.56 6.76 6.97 7.18 7.40 3%** Category C 5.46 5.63 5.80 5.98 6.16 3% ** Category D 4.37 4.51 4.65 4.79 4.94 3% ** Category E 5.46 5.63 5.80 5.98 6.16 3%** Category F 4.37 4.51 4.65 4.79 4.94 3%** ** 3% increase each year thereafter 16 ,I II 8.4.c Prior to commencement of operations the Grantee must execute a bond or letter of credit in favor of the City of Virginia Beach in the amount often thousand dollars ($10,000) as determined by the Public Works Department and the Resort Management Office. 8.5 Enforcement 8.5.a The franchise period shall be for one (1) year for the first year of operation. Based upon compliance with these regulations and the Council's desire to continue to allow Open Air Cafes, an extension of the franchise may be authorized by the City Council for up to an additional five (5) year period. 8.5.b During the period in which the franchise is in effect, the Office of the City Manager or his designated representative is to enforce the provisions of the franchise agreement, and is authorized to suspend the agreement if there is a violation of the agreement. 8.5.c In the event the City determines that the Grantee has failed to properly comply with any ofthe terms or conditions of this Agreement, Grantee shall be given a minimum of twenty-four (24) hours and a maximum of ten (10) calendar days to remedy its non- conformance. The amount of time that Grantee shall be permitted to gain compliance shall be determined in the sole discretion of the City, by its authorized officer, agent, or employee. However, such time shall be reasonable and shall be based upon the level of severity of the noncompliance. If Grantee fails to effect compliance within the time allowed, the City shall have the right to suspend Grantee's operation, in whole or in part, until such time as Grantee shall remedy its non-compliance. 8.5.d No portion ofthe open air/boardwa1k cafes shall open or project beyond the designated perimeters of the cafe area. 8.6 Revocation of Franchise: The franchise agreement shall provide that a Cafe franchise may be revoked by the City Manager whenever the City Manager determines that one of the following conditions has occurred 1. The owner or operator of the establishment has been found guilty of a criminal offense arising from the operation of the establishment; 2. The owner or operator of the establishment has been assessed a civil penalty for violation of any fire, building, zoning, alcoholic beverage control, or health regulation arising from the operation of the establishment; 17 III II 3. The presence of the open-air cafe is causing or contributing to a deterioration of the quality of the pedestrian experience or general environment in the area; 4. The open-air cafe is in violation of any material term of its franchise agreement or the Resort Open Air Cafe Regulations; or 5. The operator has failed to comply with an order of a public safety official of the City directing that the open-air cafe be closed, as provided by Section 5.5.N (3) ofthe Resort Open Air Cafe Regulations. 8.6.a The franchise agreement shall also provide that the City Manager may suspend the owner or operator's privilege to operate the open air cafe under the franchise pending a final disposition of any criminal charge, alcoholic beverage control violation, or civil infraction arising from the operation of the establishment. 8.7 Effect of Revocation of Franchise: The franchise agreement shall provide that, upon revocation or suspension of a franchise by the City Manager, the owner or operator shall immediately cease operation of the open air cafe and shall remove all tables, chairs and other items located on City property within twenty-four (24) hours of the revocation or suspension. As provided by City ordinance, the failure of the owner or operator to comply with the order of the City Manager revoking or suspending a franchise shall punishable as a misdemeanor. The franchise agreement shall authorize the City Manager to remove or contract for the removal of any tables, chairs, barriers and other items encroaching upon City property and charge the costs thereof to the owner or operator, which costs may be collected as real estate taxes are collected. SECTION 9. DEMOLITION 9.1 If applicant is required to demolish or remove cafe or any portion thereof, the applicant must submit approval plans to the Department of Planning for review. 18 - 55 - Item V-J.8. ORDINANCES/RESOLUTIONS ITEM # 58652 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances to AUTHORIZE the City Manager to execute leases of City- owned property for three (3) years at the Virginia Beach Farmers Market: a. Andrew Skipper t/a Homegrown Country Market re: Space #11 b. MaryJean Reid t/a MaryJean's Bakers re: Space #10 DISTRICT 7 - PRINCESS ANNE Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24,2009 III 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A 3-YEAR LEASE WITH 3 ANDREW SKIPPER (T/A HOMEGROWN COUNTRY 4 MARKET) FOR SPACE #11 IN THE VIRGINIA 5 BEACH FARMERS MARKET 6 7 WHEREAS, the City of Virginia Beach (the "City") is the owner of The City of 8 Virginia Beach Farmers Market located at the corner of Princess Anne Road and Dam 9 Neck Road in Virginia Beach, Virginia (the "Farmers Market"); 10 11 WHEREAS, Andrew Skipper (tla Homegrown Country Market) ("Homegrown 12 Country Market") would like to enter into a new formal lease arrangement with the City 13 for Space #11 in the Farmers Market (the "Premises"); 14 15 WHEREAS, the Premises will be utilized as a retail establishment selling fresh 16 produce, flowers, wooden crafts, handcrafted and made items, home baked items, 17 cheese products, iron and leather items and seasonal decorative items, and for no other 18 purpose; 19 20 WHEREAS, Homegrown Country Market has agreed to pay the City $517 per 21 month ($6,204 per year) for the use of the Premises for a three-year term; 22 23 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 24 OF VIRGINIA BEACH, VIRGINIA: 25 26 That the City Manager is hereby authorized to execute a lease for a term of three 27 (3) years between Andrew Skipper (tla Homegrown Country Market) and the City, for 28 the Premises in accordance with the Summary of Terms attached hereto and made a 29 part hereof, and such other terms, conditions or modifications as may be acceptable to 30 the City Manager and in a form deemed satisfactory by the City Attorney. 31 32 Adopted by the Council of the City of Virginia Beach, Virginia on the 24th day of 33 M<'l rch 2009. APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~~v City Atto ey APPROVED AS TO CONTENT CA 10994 v :lapplicationslcitylawprodlcycom32\ WpdocslDO II IP005'00003214.DOC R-1 March 12,2009 , III SUMMARY OF TERMS LEASE FOR SPACE #11 AT THE VIRGINIA BEACH FARMERS MARKET LESSOR: City of Virginia Beach LESSEE: Andrew Skipper (t/a Homegrown Country Market) PREMISES: Space #11 36 months: April 1 ,2009 - March 30, 2012 $517 per month ($6,204 per year) TERM: RENT: RIGHTS AND RESPONSIBILITIES OF LESSEE: . Use leased space for the retail sale of fresh produce, flowers, wooden crafts, handcrafted and made items, home baked items, cheese products, iron and leather items and seasonal decorative items and for no other purpose. . Maintain leased space, including heating and air conditioning units and/or heat pump units. . Payment of all assessed fees. . Purchase commercial general liability insurance for the Premises with policy limits of not less than $1,000,000 combined single limits per occurrence. . Keep Premises open from 10:00 a.m. to 5:00 p.m. Monday through Saturday, and 12:00 p.m. to 5:00 p.m. on Sunday. However, Lessee will not be open on Wednesdays. RIGHTS AND RESPONSIBILITIES OF CITY: . Maintain common areas of the Property and structural elements of the Premises. . Provide water and sewer. . Provide electrical service unless Lessee has its own account with Dominion Virginia Power. TERMINATION: . After 18 months, either party may terminate by providing the other party sixty (60) days' notice. . City also has special right to terminate if necessary for any public purpose by giving sixty (60) days' written notice. V:\applicationslcilylawprod\cycom32IWpdocsIDOO7\P004\OOO71802.DOC ~ ;; > :> .0 :> :> ~ 1 \ J " L /1 t."::: . Jr., II '. '1 . ~ . ..I II - :1 Ii ,: i ..~ 1, f~~ .", :-0;.; : ; ~~.~ ,I.' ~J hi ...... '-j .- ~ J:- f-J ,: ~~~1 :f - .:~ hj fl.-3 .':1 ;:f' I, '- /} f f- ,p-- -;.... y', \ ,').... \ l" \ -' .r F . ~ ~ ~#) ~ CJ ." -------- c.4 ~.>q '::l\\"O ~_'.c.-----~, 1 {J 'GUi (\ \ 3r:.'C""" ~e ~- ----- _ l I ./ III 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A 3-YEAR LEASE WITH 3 PAUL AND MARY JEAN REID (T/A MARY JEAN'S 4 BAKERY) FOR SPACE #10 IN THE VIRGINIA 5 BEACH FARMERS MARKET 6 7 WHEREAS, the City of Virginia Beach (the "City") is the owner of The City of 8 Virginia Beach Farmers Market located at the corner of Princess Anne Road and Dam 9 Neck Road in Virginia Beach, Virginia (the "Farmers Market"); 10 11 WHEREAS, Paul and MaryJean Reid (t/a MaryJean's Bakery) ("MaryJean's 12 Bakery") would like to enter into a new formal lease arrangement with the City for Space 13 #10 in the Farmers Market (the "Premises"); 14 15 WHEREAS, the Premises will be utilized as a retail establishment selling 16 homemade baked items, breads and specialty cakes to order and for no other purpose; 17 18 WHEREAS, MaryJean's Bakery has agreed to pay the City $593 per month 19 ($7,116 per year) for the use of the Premises for a three-year term; 20 21 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 22 OF VIRGINIA BEACH, VIRGINIA: 23 24 That the City Manager is hereby authorized to execute a lease for a term of three 25 (3) years between Paul and MaryJean Reid (t/a MaryJean's Bakery) and the City, for 26 the Premises in accordance with the Summary of Terms attached hereto and made a 27 part hereof, and such other terms, conditions or modifications as may be acceptable to 28 the City Manager and in a form deemed satisfactory by the City Attorney. 29 30 Adopted by the Council of the City of Virginia Beach, Virginia on the :2 4 th day of 31 March, 2009. APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~~ City Attor y APPROVED AS TO CONTENT ~ DJv~ ; nt of Agriculture CA 10993 v :\applications\citylawprod\cycom32' Wpdocs\DO II \P005100003213 .DOC R-1 March 12,2009 IIII SUMMARY OF TERMS LEASE FOR SPACE #10 AT THE VIRGINIA BEACH FARMERS MARKET LESSOR: City of Virginia Beach LESSEE: Paul and MaryJean Reid (t/a MaryJean's Bakery) PREMISES: Space #10 RENT: 36 months: April 1, 2009 - March 30, 2012 $593 per month ($7,116 per year) TERM: RIGHTS AND RESPONSIBILITIES OF LESSEE: . Use leased space for the retail sale of homemade baked items, bread, and specialty cakes to order and for no other purpose. . Maintain leased space, including heating and air conditioning units and/or heat pump units. . Payment of all assessed fees. . Purchase commercial general liability insurance for the Premises with policy limits of not less than $1,000,000 combined single limits per occurrence. . Keep Premises open from 10:00 a.m. to 5:00 p.m. Tuesday through Saturday, and from 12:00 p.m. to 5:00 p.m. on Sunday. However, Lessee will not be open on Tuesdays during the months of January, February and March. Lessee will be closed on Mondays. RIGHTS AND RESPONSIBILITIES OF CITY: . Maintain common areas of the Property and structural elements of the Premises. . Provide water and sewer. . Provide electrical service unless Lessee has its own account with Dominion Virginia Power. TERMINATION: . After 18 months, either party may terminate by providing the other party sixty (60) days' notice. · City also has special right to terminate if necessary for any public purpose by giving sixty (60) days' written notice. V :applications\citylawprod\cycorn32\ Wpdocs\DO II 'P005\OOOO3215.DOC ~ \ J .1 \ I. r>'- I~ :t.:..,;-- T " r' . . ., i,1' .' ii . ( .:1 fJ l~'i -.: 1, .<<:: ." . ;-Of . . ,-' 1t.. ~. - . HI ..-J FI F f1 , :1 t1~ :f , -~ hl r t~i 1 .. P :t ;;- /) f f- ~. ~"l. y', \ ,:>- \ \" \ . ~.... y'~ ~ to -' / -' . <f LJ ~._."....' ---~, \ . tJ 'Gu.(\ \ 3n't\4~e. ."".--- I / .---------~ - _ ~I...\I f1__1 I II - 56 - Item V-J. 9. ORDINANCES/RESOLUTIONS ITEM # 58653 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE a temporary encroachment into a portion of City owned property - Canal No. 2 - for OCEANA DEVELOPMENT, L.P. and OCEANA DEVELOPMENT, LLC, to construct and maintain adequate drainage. DISTRICT 6 - BEACH The following conditions shall be required: 1. It is expressly understood and agreed that the Temporary Encroachment will be maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach and in accordance with the City's specifications and approval. 2. Nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity and Grantee shall bear all costs and expenses of such removal. 3. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and, that the Grantee will bear all costs and expenses of such removal. 4. It is further expressly understood and agreed that the Grantee shall indemnify, hold harmless and defend the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. 5. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. 6. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. 7. It is further expressly understood and agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction within the Encroachment Area (the "Permit"). March 24,2009 II II - 57 - Item V-J. 9. ORDINANCES/RESOLUTIONS ITEM # 58653 (Continued) 8. The Grantee shall, in addition, make a Five Hundred Ninety-four Dollar ($594.00) payment, payable to the City Treasurer, to the Department of Planning as compensation in lieu of establishing and maintaining a riparian buffer area that cannot be established on the property of the Grantee. Said payment is equal to the cost of plant material that would have been required on the lots in order to establish the full fifteen (15) feet of riparian buffer restoration required for shoreline encroachments as a standard condition of the City. Said payment will be used to restore buffer areas on other City owned property. 9. It is further expressly understood and agreed that the Grantee must obtain and keep in force all- risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location and/or existence of the Temporary Encroachment. 10. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setback requirements, as established by the City. 11. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and, pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 I II 1 2 3 4 5 6 7 8 9 10 11 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE A TEMPORARY ENCROACHMENT INTO A PORTION OF CITY PROPERTY KNOWN AS CANAL NO.2 : 'J WHEREAS, Oceana Development, L.P., a Virginia limited partnership, and Oceana Development, LLC, a Virginia limited liability company, collectively "Oceana Development", desire to construct and maintain 94' of 18" RCP pipe with related rip rap for drainage purposes upon a portion of City's property known as Canal No.2, located in the City of Virginia Beach, Virginia. WHEREAS, City Council is authorized pursuant to SS 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the City's property subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in SS 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Oceana Development, its assigns and successors in title are authorized to construct and maintain a temporary encroachment for 94' of 18" RCP pipe with related rip rap in a portion of the City's property as shown on the map marked Exhibit "A" and entitled: "EXHIBIT A FOR PARCEL 1-A AND 2, LONDON BRIDGE INDUSTRIAL PARK, PHASE V FOR DRAINAGE ENCROACHMENT VIRGINIA BEACH - VIRGINIA" a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachment is expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and Oceana Development (the "Agreement"), which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED, that the City Manager or his authorized designee is hereby authorized to execute the Agreement; and BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as Oceana Development, L.P., a Virginia limited partnership, Oceana Development, LLC, a Virginia limited liability company, and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the 21 th day of March ,2009. CA-10996 V '\appli cations\cltylawprod\cycom32\ W pdocs\DO 11 \P005\00005952. DOC R-1 PREPARED: 03/11/2009 APPROVED AS TO CONTENTS ()i;um~ff' C. CJ{:wJ.!:, ev.... ~BLlC WORKS, REAL ESTATE I II APPROVED AS TO LEGAL SUFFICIENCY AND FORM l/LCi, ~/?_ REBECCA D. KUBI , DEPUTY CITY ATTORNEY PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT, made this 9th day of March, 2009, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and OCEANA DEVELOPMENT, L.P., a Virginia limited partnership and OCEANA DEVELOPMENT, LLC, a Virginia limited liability company, collectively Grantee, THEIR ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: WHEREAS, the Grantee is the owner of those certain lots, tracts, or parcels of land designated and described as "PARCEL 1-A and PARCEL 2", as shown on that certain plat entitled: "RESUBDIVISION OF PARCEL 1 LONDON BRIDGE INDRUSTRIAL PARK (RESIDUAL AREA) PHASE V (IN 20060626000966050) AND PROPERTY OF OCEANA DEVELOPMENT, LLC (IN 200409240152551) VIRGINIA BEACH, VIRGINIA" and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 20090204000110560, and being further designated, known, and described as GPIN 1497-60-7030 and GPIN 1496-69-7765; WHEREAS, it is proposed by the Grantee to construct and maintain 94' of 18" RCP pipe with related rip rap for drainage purposes, the "Temporary Encroachment", in the City of Virginia Beach; GPIN'S: 1497-60-7030-0000, 1496-69-7765-0000 and 1496-69-3224-0000 WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City property known as Canal NO.2 and being further designated, known, and described as GPIN 1496-69-3224, the "Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), cash in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat entitled: "EXHIBIT A FOR PARCEL 1-A AND 2, LONDON BRIDGE INDUSTRIAL PARK PHASE V FOR DRAINAGE ENCROACHMENT, VIRGINIA BEACH -- VIRGINIA," Said exhibit plat consists of six (6) sheets, copies of which are attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 2 It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall defend, indemnify, and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction with the Encroachment Area (the "Permit"). The Grantee shall, in addition, make a FIVE HUNDRED NINETY-FOUR DOLLARS ($594.00) payment, payable to the City Treasurer, to the Department of Planning as compensation in lieu of establishing and maintaining a riparian buffer on the property of the Grantee. Said payment is equal to the cost of plant material that would have been 3 required on the Grantee's property in order to establish the full fifteen (15) feet of riparian buffer restoration required for shoreline encroachments as a standard condition of the City. Said payment will be used to restore buffer areas on other City owned property. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Gra ntee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary 4 I I Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, the said OCEANA DEVELOPMENT, L.P., a Virginia limited partnership, has caused this Agreement to be executed in its name on its behalf by its general partner, MLJ, INC. a Virginia Corporation, by Jerrold L. Miller, President, with due authority to bind said partnership; and the said OCEANA DEVELOPMENT, LLC has caused this Agreement to be executed by Jerrold L. Miller, Manager of Oceana Development, LLC, a Virginia limited liability company, with due authority to bind said limited liability company. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. (THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK) 5 IIII CITY OF VIRGINIA BEACH By (SEAL) City Manager/Authorized Designee of the City Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowl edged before me this day of , 2009, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. (SEAL) Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2009, by , CITY CLERK/AUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. Notary Public (SEAL) Notary Registration Number: My Commission Expires: 6 'I 1 OCEANA DEVELOPMENT, l.P., a Virginia limited partnership By: MLJ, INC., a Virginia corporation, its general partner ,>rA,/#-. Jerrc(Cj.t:. Miller, President STATE OF <'\") CITY/COUNTY OF \C)~SlV()ll ~, to-wit: The foregoing instrument was acknowledged before me this -3- day of J31J:lQcJr\ ,2009, by OCEANA DEVELOPMENT, l.P., a Virginia limited partnership, by its general partner, MLJ, Inc., a Virginia corporation, by Jerrold L.:~i~r~~.~~~o.~;.;"_ .,? '':)0'' v" . .:. .', ~",. ~.~ l~.!l' ;t..\ 'Il ,:! -s.", I .::...,,'~ ~." ::) :: = :::f ~ ~~ ,C- -~; . ~/\:'\~>" ...!/ l~~ "'; :6~.. .. Ot"~,;i(;'.I' .'... '\, . ...... .. I','.,. ,. . W'"'\. ','" 'C" 7...,........ ", \<::l !,:' - !I', / ';II <!:' \J \\~ "Ihl'.::t, .. \\\\\ - -, !If! Iil\\ \\1\' President, on its behalf. Notary Registration Number: ~~\ 4-~ My Commission Expires: ~61 \LDl~ In 4ZMETH.woe .....NIID "'0 c~. .. 1....-. .... l.l I r lit _........ _ ....... . (REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK) 7 OCEANA DEVELOPMENT, LLC, a Virginia limited liability company ~.., J Jl)1- Jerro . Miller, Manager STATE OF r\""") _ L CITY/COUNTY OF ~~~, to-wit: The foregoing instrument was acknowledged before me this q day of ~V) ,2009, by Jerrold L. Miller as Manager of Oceana Development, LLC, Notary Registration Number: dS~\~ My Commission Expires: 3\~\ \ 2o~L \'0,.,1,'1.1: "{i'f;< ,\\' \'O~ :: ":".., ,,,. ,d /. ~. .'~ \........~.. ,. ...J .....;,:- ...~".,'{-:..t/lu...; . V/,. ~ ;"'.:.,,\-.,. ... &." \""\ .:~~ ' ,... > ~J" ~~~:;~~Z;~',~~l t\. -:; u..'. ~ :{J-r" - ~: ~ :;',' ';1. L\.. :i' -,,'........ ::: ~\tl""';;..', ";'i.{J. ;:"'<\....e'l't.J':' ?'. ..~...... '....:\:, .~'-,- *:"~, p'~o....ftlJ\'" " ,.. ..l\..f:) J~ ~I ~77...~1.'. ~ ,,:-." /'11 . a., {2 ...\,\ :III, .\\'. J/"fIlll! nIl' ................ ......... ELIZABETH AMOS NoWy Public C....WbI_.of~ MrCutll ~ .an......;;;; _! 10"_1'" · a Virginia limited liability company, on its behalf. (} ~~ C. Cfcausu,,,- APPROVED AS TO LEGAL SUFFICIENCY AND FORM ;!f2lJ---fJI)vNl(~ APPROVED AS TO CONTENTS NATURE PLO) KtH) EJJ+~~ DEPARTMENT 8 1II1 C NTRAL DR LOCATION MAP Copyr;gh I ADC The Mop People Permitted Use NO. 21102197. SCALE: ," = 2000' EXHIBIT A FOR PARCEL i-A AND 2, LONDON BRIDGE INDUSTRIAL PARK, PHASE V FOR DRAINAGE ENCROACHMENT VIRGINIA BEACH - VIRGINIA SCALE: 1 H = 40' FEBRUARY 12, 2009 40 I o I 40 I 80 Feet I GRAPHIC SCAL[ NDI, L. L. C. BASGIER AND ASSOCIATES DIVISION ENGINEERS - SURVEYORS ~PLANNERS 572 C[NTRAL DRiVe SUIT[ 103, VIRGINIA B[ACH, VIRGINIA 23454 PHONL (757) 431-2177 FAX: (757) 431-2175 SHEET 1 OF 6 ,1.0. 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(757) 431-2177 FAX: (757) 431-2175 SHEET 2 OF 6 J.O 8019 ~ SDMH(B-2) RIM 12.2 INV 6.75 OJ -'I .\ I ")0 '\ r ,. , t,,~(;G-~ 13(lYP) IIII ~ I ( I IIDI(A-5) -' RIM 11.35 I:'"V 832 : I ~DI(A-6) ( I RIM 11.441 INV 8.18 \ \ fyrJ) " " ~I C8(A-7) RIM 11.70 INV 8.04 PROGRESS lANE (60'R/W) I.N. 20060626000966050 EXHIBIT A FOR PARCEL l-A AND 2, LONDON BRIDGE INDUSTRIAL PARK, PHASE V FOR DRAINAGE ENCROACHMENT VIRGINIA BEACH - VIRGINIA SCALE: 1 H = 40' FEBRUARY 12, 2009 J.O. 8019 40 I o I 40 I 80 Feet I GRAPHIC SCAL[ NDI, L. L. C. BASGIER AND ASSOCIATES DIVISION ENGINEERS - SURVEYORS -PLANNERS 572 CENTRAL DRIVE, SUITE 103, VIRGINIA BEACH, VIRGINIA 23454 PHONE: (757) 431-2177 FAX: (757) 431-2175 SHEET 3 OF 6 "''''...- :'tNb U.... R~S1:;C ~CR\:S) 00966050 l4.; 200606260 , 1.1I, ",0 :::i ",0 ",'- <>, .^~~ . p~ct\:. ~Rf)...s (nt.lolO ~R\:S\:~~\: ~O\l<.~lIi R\:Si:;C~CR\:S) 000966050 l4.; 0060626 _650; \ 1I. 2 496-69 i;?\~ 1 ". 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SDMH(B-10) RIM 12.0 INV ~59 ~. IIII lliL I 1- <..i ..,jr-> .00 )--1<.00 -I~~O O::z~I' ~w_1 0:::::;:8;; OCL01 I.J...gvl' o::WOC1l oGjg:: ~Clgz o <( c-l c:: z~?;t:l U......,. o ~ . ~ P/'.RC~,..p.EJS .~ ." ~~~~N~1 Rt.~ "CRlS\o09&flP~ l4. 7.00I'>O~~9-~~ 'J:;\N: '49&- .......-'-- .. - II _~'" MATCHLlNE SEE SHEET 5 EXHIBIT A FOR LONDON BRIDGE INDUSTRIAL PARK, FOR DRAINAGE ENCROACHMENT PHASE V PARCEL l-A AND 2, VIRGINIA BEACH - VIRGINIA SCALE: 1H = 40' FEBRUARY 12, 2009 40 : o I 40 I 80 Feet I GRAPHIC SCAL[ NDL L.L.C. BASGIER AND ASSOCIATES DIVISION ENGINEERS - SURVEYORS -PLANNERS 572 CENTRAL DRIVE, SUITE 103, VIRGINIA BEACH, VIRGINIA 23454 PHONE: (757) 431-2177 FAX: (757) 4.31-2175 SHEET 6 OF 6 J.Q. 8019 ~ " u <. .9l G: () a:: b ~ a ...... "<t a: II '0' .... ~ 9:: ill x -.J <( ~ ~ ....~~ en .... -' . Wz ~ 5!i~ ~ i~~l~ ~ ....-'oi N ~ifj~-,s; ~ r=~O~~ &: c(x W... ~ UOC(OZ .~ 9g~zc(~ & ~w v ~ ooqJ ~ ZOO ~ Wtt:O ~ o ~ IL q. c:: ~ $ a.: "" .Q ~ .... (l3 ~ I1II1 - 58 - Item V-J.IO. ORDINANCES/RESOLUTIONS ITEM # 58654 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to ESTABLISH Capital Project #3-143; and, ACCEPT and APPROPRIATE $4,000,000 from the United States Department of Homeland Security re: Urban Area Security Initiative (UASI) Interoperable Communications Technology Grant - Phase IL Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 1 AN ORDINANCE TO ESTABLISH CAPITAL PROJECT 2 # 3-143, UASIINTEROPERABLE COMMUNICATIONS 3 TECHNOLOGY GRANT - PHASE II AND TO ACCEPT 4 AND APPROPRIATE FUNDS FROM THE U.S. 5 DEPARTMENT OF HOMELAND SECURITY TO 6 CAPITAL PROJECT #3-143 7 8 9 WHEREAS, the U.S. Department of Homeland Security has allocated an 10 Interoperable Communications Technology Grant to the Hampton Roads Planning 11 District Commission; and 12 13 WHEREAS, the City of Virginia Beach with the Commonwealth of Virginia and 14 the Hampton Roads Planning District Commission (HRPDC) coordinates regional 15 efforts will provide equipment and training for the regional communication network. 16 17 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 18 VIRGINIA BEACH, VIRGINIA: 19 20 1. That Capital Project # 3-143, UASI Interoperable Communications 21 Technology Grant - Phase II, is hereby established in the Capital Improvement 22 Program for the purpose of funding regional communication equipment. 23 24 2. That $4,000,000 is hereby accepted from the U.S. Department of 25 Homeland Security, with federal revenue increased accordingly, and appropriated to 26 Capital Project # 3-143, UASI Interoperable Communications Technology Grant - 27 Phase II, in the FY 2008-09 Capital Budget. 28 29 Requires an affirmative vote by a majority of all of the members of City Council. 30 31 Adopted by the Council of the City of Virginia Beach, Virginia, on the 74th day 32 of March ,2008. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: D C;;:;) Q, \\ Management Services ~L_____ Ci tt r s Office CA 11044 R-2 March 5, 2009 I1II1 - 59 - Item V-K. PLANNING ITEM # 58655 1. SCOTT and DALE BANNING NONCONFORMING USE 2. BRUCE and ELIZABETH HEDLUND VARIANCE 3. ROBERT H. JOHNSON VARIANCE 4. MCRJERS, LLC STREET CLOSURE 5. TOWN CENTER ASSOCIATES, L.L.C. STREET CLOSURE 6. TOWN CENTER BLOCK 10 APARTMENTS, L.P. CONDITIONAL USE PERMIT 7. REGENT UNIVERSITY CONDITIONAL USE PERMIT 8. STUDIO BAMBOO INSTITUTE OF YOGA CONDITIONAL USE PERMIT. 9. JULIE COLEMAN - ZEN HOT YOGA CONDITIONAL USE PERMIT 10. DANIEL J. BLEVINS MODIFICATIONS OF CONDITIONS 1 and 5 (approved October 9,2007) CHANGE OF ZONING 11. FLORIDA YS, L.L. C. CONDITIONAL CHANGE OF ZONING 12. HARMONY INVESTMENTS, INC. CONDITIONAL CHANGE OF ZONING March 24, 2009 IIIII - 60- Item V-K. PLANNING ITEM # 58656 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED in ONE MOTION Items 1, 3, 5, 6, 7, 8, 9 10a/b and 12 (INDEFINITE DEFERRAL) of the PLANNING BY CONSENT AGENDA. Item K.12 was INDEFINITELY DEFERRED, BY CONSENT. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 I1II1 - 61 - Item V-K PLANNING ITEM # 58656 (Continued) Councilman Dyer DISCLOSED and ABSTAINED pursuant to Section 2.2-311 5 (E), Code of Virginia, re Item 7 (Regent University for a Conditional Use Permit at 1352 and 1354 Regent University Drive) Councilman Dyer has a personal interest in this transaction as an employee of the applicant, Regent University, which is located at 1000 Regent University Drive. Councilman Dyer's correspondence of March 24,2009, is hereby made a part of the record Council Lady Wilson DISCLOSED pursuant to Section 2. 2-3 JJ 5 (E), re Item K.8 (Studio Bamboo Institute of Yoga) for a Conditional Use Permit at 2865 Lynnhaven Drive). Council Lady Wilson has a personal interest in this transaction because her husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Studio Bamboo Institute of Yoga. Her husband does not personally provide services to Studio Bamboo Institute of Yoga. The City Attorney's Office has advised although she has a personal interest in the transaction, because her husband does not personally provide services to Studio Bamboo Institute of Yoga, she may participate without restriction in City Council's discussion and vote on the application. Council Lady Wilson's correspondence of March 24,2009, is hereby made apart of the record Mayor Sessoms DISCLOSED and ABSTAINED pursuant to Section 2.2-3115(E), Code of Virginia, re Item K. 12 (Harmony Investments for a Conditional Change of Zoning at 5321 Greenwich Road). Mayor Sessoms has a personal interest in this transaction being an Officer of TowneBank. The applicant has advised that TowneBank will provide financing for this project. Mayor Sessoms' correspondence of March 24,2009, is hereby made a part of the record Council Lady Wilson DISCLOSED pursuant to Section 2.2-3JJ 5 (E) re Item K. 12 (Harmony Investments, Inc. for a Conditional Change of Zoning 15 5321 Greenwich Road). Council Lady Wilson has a personal interest in this transaction because her husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Harmony Investments. Her husband does not personally provide services to Harmony Investments. The City Attorney's Office has advised although she has a personal interest in the transaction, because her husband does not personally provide services to Harmony Investments, she may participate without restriction in City Council's discussion and vote on the application. Council Lady Wilson's correspondence of March 24, 2009, is hereby made a part of the record March 24,2009 I1I11 - 62- Item V-Kl. PLANNING ITEM # 58657 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED the application of SCOTT and DALE BANNING for a Nonconforming Use re alterations and additions to a garage apartment at 114 54th Street. Resolution upon application of SCOTT and DALE BANNING of a Nonconforming Use on property located at 114 54h Street. (GP IN: 3418894910) D!STPJCT 6 BEACH DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. The modifications to the garage apartment shall substantially adhere to the submitted site plan. The Plan has been exhibited to the City Council and is onfile in the Planning Department. 2. The modifications to the garage apartment shall substantially adhere to the submitted building plans. The building plans have been exhibited to the City Council and are on file in the Planning Department. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley. Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin. Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24,2009 ill II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 A RESOLUTION AUTHORIZING THE ENLARGEMENT OF A NONCONFORMING USE ON PROPERTY LOCATED AT 114 54th STREET WHEREAS, Scott and Dale Banning (hereinafter the "Applicants") have made application to the City Council for authorization to enlarge a nonconforming use by making additions to and alterations of their garage apartment on a lot or parcel of land having the address of 114 54th Street, in the R-5R Residential Zoning District; WHEREAS, the said use is nonconforming, as the parcel contains a single-family dwelling and a garage apartment which were constructed prior to the adoption of zoning regulations prohibiting garage apartments in the R-5R Residential Zoning District; and WHEREAS, pursuant to Section 105 of the city Zoning Ordinance, the enlargement of a nonconforming use is unlawful in the absence of a resolution of the City Council authorizing such action upon a finding that the proposed use, as enlarged, will be equally appropriate or more appropriate to the zoning district than is the existing use; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Council hereby finds that the proposed use, as enlarged, will be equally appropriate to the district as is the existing use. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the enlargement of the nonconforming use is hereby authorized, upon the following conditions: 1. The modifications to the garage apartment shall substantially adhere to the submitted site plan. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 2. The modifications to the garage apartment shall substantially adhere to the submitted building plans. Said building plans have been exhibited to the City of Virginia Beach City Council and are on file in the Planning Department. Adopted by the Council of the City of Virginia Beach, Virginia, on the 24th day of March , 2009. 'I , APPROVED AS TO LEGAL SUFFICI~NCY: - (j,hlil/~~LCCl(IJ(j{!l CitY Attorney's Office III March 24, 2009 Public Hearing PROPERTY OWNER I APPLICANT: SCOTT & DALE BANNING STAFF PLANNER: Leslie Bonilla REQUEST: Alteration and Expansion of a Nonconforminq Use (garage apartment) ADDRESS I DESCRIPTION: 114 54th Street GPIN: 2418894910 ELECTION DISTRICT: L YNNHAVEN SITE SIZE: 6,625 square feet AICUZ: 65-70 dB DNL Sub-Area 1 SUMMARY OF REQUEST There is an existing single-family dwelling and a detached garage apartment on the site, both constructed in 1948. The applicant requests approval to make alterations to the detached garage apartment. Garage apartments were allowed by right in this zoning district until August 1985, when the use was removed from the Zoning Ordinance. Since garage apartments are no longer allowed as a permitted or conditional use, the garage apartment is a nonconforming use. Thus, any alteration to the garage apartment requires approval by the City Council. Additionally, since the structures were constructed in 1948, they do not conform to the R-5R Residential Resort District regulations currently in effect. The structures exceed the permitted lot coverage by 79 square feet and the permitted impervious coverage by approximately 169 square feet. The garage apartment encroaches into the eastern side setback and the rear setback. The applicant proposes to open a portion of the south (alley-side) wall of the garage apartment to re- establish the garage. At some point in the past, the garage opening was blocked off and the garage was SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 1 ill II transformed into living space. This modification will provide on-site parking within the building. To minimize or eliminate an existing problem with stormwater intrusion into the garage apartment, the applicant also proposes to elevate the first floor of the garage apartment. Due to this elevation change at ground level, the second floor will need to be raised to maintain adequate ceiling height. The overall height of the structure is approximately 27 feet. The proposed modifications will also consist of an overall renovation of the building, including a small expansion to the second floor to match the first floor area. The modifications will maintain and enhance the building's existing Beach Cottage style. LAND USE AND ZONING INFORMATION EXISTING LAND USE: A single-family dwelling and garage apartment currently exist on the site. The structures were constructed in 1948. SURROUNDING LAND USE AND ZONING: North: . 54th Street Across 54th Street are single-family, duplex, and garage apartment dwellings / R-5R Residential Resort An alley Across the alley are single-family, duplex, and garage apartment dwellings / R-5R Residential Resort Single-family and garage apartment dwellings / R-5R Residential Resort Single-family dwellings / R-5R Residential Resort . South: . . East: . West: . NATURAL RESOURCE AND CULTURAL FEATURES: The site is developed with a single-family dwelling, a garage apartment, and landscaping. The dwelling and garage apartment were built in 1948, and are typical the "Beach Cottage" style popular at the time. Garage apartments were allowed by right in this area until August 1985 when the use was removed from the Zoning Ordinance. There are no known significant natural resources or cultural features associated with the site. IMPACT ON CITY SERVICES There is no impact to City Services. The Traffic Engineering Division of Public Works notes that in accordance with the driveway policy for the resort and beach areas, the driveway apron for the garage apartment cannot exceed twenty (20) feet in width at the public right-of-way. SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 2 III1 EVALUATION AND RECOMMENDATION Staff recommends approval of this request. Section 105(d) of the City Zoning Ordinance states that no nonconforming use or structure shall be enlarged, extended, reconstructed, or structurally altered unless the City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity" . The City Zoning Ordinance defines 'garage apartment' as "a structure above a private garage in which provision is made for one (1) dwelling unit, requiring an interior stairway to the second floor, provided that the living area does not exceed eight hundred (800) square feet of floor area and the height does not exceed twenty-eight (28) feet." The proposed alteration of re-opening the garage reduces the square footage of living area within the existing nonconforming use. The applicant's design of the structure maintains a beach cottage style and is in keeping with the goals of the North Virginia Beach Civic League, which is to encourage beach-style cottages versus large 'boxy' duplexes. Staff finds that the proposed alterations are reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non-conforming use. The request, therefore, is acceptable with the following conditions. CONDITIONS 1. The modifications to the garage apartment shall substantially adhere to the submitted site plan. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 2. The modifications to the garage apartment shall substantially adhere to the submitted building plans. Said building plans have been exhibited to the City of Virginia Beach City Council and are on file in the Planning Department. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 3 IIII1 AERIAL OF SITE LOCATION SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 4 W"- .....:. ' , y , .: .' I .\\:. l . t. .. t- . '( \ . \ . \ .. \ .. \ . \ . \ \ . \ . \ . \ \ . \ ~....~- ..' 4.. ",_ ~ \ . . ~ . .,\ . : 'l =i . . r: .1 :\ :\ .' -:=:::. -.,. \ - " ... ' 1"-'" ~:' -~ .~ ; t'-- .:,....,-.....-..-...-....... 1 l t ) !~ ~.\'- \ L-~-i ~ J;...,......,. / " . / iT ,/f ./ /ji//i' J< /;' .' . : ,/' .( ,;: ,: ,.." .1. PROPOSED SITE PLAN SCOTT & DALE BANNlNG March 24, 2009 City Council Meeting Page 5 'I 1 .0' / <.:' ~.. , . ~~:'c::;r~:.':; ~~~~ ....",,5'.,)<. ^ ~ ..... ~,,::,I>. ~~V~ 11 '.t ..1 o . , ro' ~ 1.11:1 a rBl r' .~. iql t.... "- ir;:(u jl' ,< . " / 'Ii'\'" I.i'r " . / 11 ,:"rl, t.l LI I~. '. .;..,l.. , .\ ILr-" 'IL ''1'I'I') \ +, [I, '/-1 ,\{! 'i' \ r \ ":' \ llfl '1 1\'" 1'1 1 \ 11 'fl.. \ 1'1 """!T"'r :~ltlll\lfl t,l( '1,1,1,')~IT . :: ""l!il'\.'J' ~ . l' :r' ,". ..r ,I. '. . .' .. ." .. '. . '. . .. ~ . . .1 '".:.. t-tott"\\o\ ~'/t'CtIOH ~ PROPOSED GARAGE APARTMENT BUILDING ELEVATIONS SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 6 \.,. E.La"MlON V;t y ':,.'0 ,,' . ',- C~::, :rm rl ",-; I llr,L :" ;~I ;1',IJ'rr)dl!,i'I'_Il,1 It 1"1" \ I' /"\"'1., ._r 1I\ l:rl' III ;) ~,. I r.lx:J\'" ._ IIII . '] . - . \~ PROPOSED GARAGE APARTMENT BUILDING ELEVATIONS .~~/_. .. '., . ~~oN V+ SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 7 i III ._--_.........~..__..- e,1~ I .{; ;)i ... '1'1:, '0 ?? ~ ~ '/ II ,!. I\/! ~\/l ~ ,2NZUli: .~ 1l -.....--.---... ~r Floof&- Yk "'"-....-~--.......... ~II. .; f?tL 1.. o 00 L Je.ll <11,,[.\ B J?N '--IV!N \0 \711-1b ~,,~ ~ PROPOSED GARAGE APARTMENT FLOOR PLANS SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 8 IIII Scott & Dale Banninf! ~ ~~~\~ \~\ ~a~\Q~r\I't~L-o~ c~ -\\ "\ ;t~ ~\o ~~\~~ o~~f \fd:i ~"l' '- <i~ ~'t ~ ~\I\ '~I' ;on ... 01 ~. ~~ ~~ ~!\ ~ l~ ~~ ~ "ui;~rec l ~~ ,\~ \'\ ~ iQ~ '" lIS ~ J ~ I~ ~J} ....,':.L c~ ~ ~ ~ 00; ~- l ~~ '-... '- ::--~ 0 IY' ~ .~\~~~~' ~, ~ ~_It'" ., :1 <l ..,.",. Lr-.~ :l"t~ ~ ~ \~ Wt~ ~. ~ ~ .\~ ~\ ~i Ii ,\C~ ~ ,~~~\ m~ \ ~~ ~ ~ ~\~ ~.. (~~ f~~'~ r ~ ~~~~ ~~~4 } 1jIl". ~~r - ~ A11'Ul t- 'l'- =- '~,\trr~ ~~~fil ~ ~\,V~~(ijli~~ ~---~~~ ~y ~ ~~I)~D~A\EI ~ ~ ~ ~~\I\ ~~\\I ~ ~}r ~ \~\\a~ ~pl\ "" ~ll.&t\~ \ \~~~~ ~ ~~ ~()"'\ \. ~ It\.. ,oor- -- w::."-\ '\-J Ii:..r:p""( 11\ \\\ ~ __ n ~ Map L~ 1'10 Not to Scole \ NOll-Conforming Use # DATE DESCRIPTION ACTION 1 2-12-02 Alterations to a Nonconforming Use Granted 2 4-23-02 Alterations to a Nonconforming Use Granted 3 1-26-93 Alterations to a Nonconforming Use Withd rawn 4 8-14-01 Alterations to a Nonconforming Use Granted 5 9-24-91 Alterations to a NonconforminQ Use Denied 6 10-29-02 Alterations to a NonconforminQ Use Granted 7 10-28-08 Alterations to a Nonconforming Use Granted 8 8-12-08 Alterations to a Nonconforming Use Granted 9 1 0-11-05 Alterations to a Nonconforming Use Granted 8-14-01 Alterations to a Nonconforming Use Granted 10 7 -10-01 Street Closure Granted ZONING HISTORY SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 9 z o I I ~ U I I .....::r ~ ~ ~ CI::J t::J t..:) Z I I ~ o J;.:I;..c Z o u . Z o Z IIIII II DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm business. or other unincorporated Aganization complete the following l2J List the applicant name followed by the names of all officers members trustees. partners. etc below: (Attach list If necessary) 2. List all businesses that have a parent-subsidlari or affiliated business entitl relationship with the applicant (Attach list if necessary) aCh~~~-;~r~-i~-t~e applicant is NOT a corporation partner~hiP~i~~~buslness or other unincorporated organization PROPERTY OWNER DISCLOSURE Complete tllis section only if property owner is different from applicant If the property owner is a corporation, partnership, firm. business or other ~incorporated organization, complete the following ( 1,) List the property owner name followed by the names of all officers. members '- trustees, partners etc below (Attach list If necessary) 2 List all businesses that have a parent-subsidiary I or affiliated business entity2 relationship with the applicant (Attach list if necessary) C:fCheck here If the property owner IS NOT a corporation, partnership firm, business, or other unincorporated organization T & 2 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes _ No If yes. what is the name of the official or employee and the nature of their interest? Non.Conformmg U~e Application Page 8 of Y f>evlSed 7/3107 DISCLOSURE STATEMENT SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 10 II DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use. including but not limited to the prOViders of architectural services. real estate services, financial services. accounting services. and legal services (Attach list if necessary) . '- I. <' I. V j -, 0\ \ -.; J I' t \,' Ii l ._) I., I. ',-' \. 1.1 r- Co{ J( $ I , \ \C '( Ie , .I 1\ I 1\ 1'\ \' ':" , ','$ , \ \ , .' i 1) /- \ \ \\0 , lLl__ \\.C, \lj C G , \ '_, \ \ \. , ".. L.1(_.1' 'Parent.subsidiary relationship" means 'a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act. Va. Code S 2 2-3101 'Affiliated business entity relationship" means "a relationship, other than parent- subSidiary relationship, that exists when (I) one business entity has a controlling ownership interest In the other business entity, (Ii) a controlling owner in one entity is also a controlling owner In the other entity, or (iii) there is shared management or control between the business entitles. Factors that should be con sidered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entitles; there are common or commingled funds or assets: the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular baSIS: or there IS otherwise a close working relationship between the entities" See State and Local Government Contlict of Interests Act. Va Code S 22.3101 CERTIFICA TION: I certify that the Information contamed herein IS true and accurate I undetstand that. upon receipt of notification (postcard) that the application has been scheduled for pUblic heating. I am responsible fot obtaining and posting the reqUired sign on the subject property at least 30 days prior to the scheduled publiC hearing according to the instructions In this package. The underSigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application f' (,-.--=::::>..:.::,....,.........- .-/' . Applicant's Signature ~ /'1 ( 'r,i.. c.. I. \ ::'YJ k I'~ I.-C. Property Owner's Signatute (If diffetent than applicant) -, 1--....\,..., \ "", - \. .. I d... I _ ~_ \ ")( 1 ," " I )i Print Name '( \. \ Print Name h~/ j 'I : ID { (l Non-Conforming Use Apphc;(.1tlon Page 9 of 9 ReVised 71J/07 1IIII z o I t ~ U I I ~ ~ ~ ~ c:.IJ ;::::J t.:) Z I I ~ o ~ Z o u . Z o Z DISCLOSURE STATEMENT SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 11 ill II NORTH VIRGINIA BEACH CIVIC LEAGUE ZONING REVIEW COMMITTEE MEMO Members of the Planning Commission Members of City Council City of Virginia Beach Saturday, March 14,2009 Re: Application by the Banning Residence for a modification of a Non-Conforming Use at 114B - 54th Street. The North Virginia Beach Civic League's (NVBCL) Zoning Review Committee has reviewed the merits of this request and ''take no exception" to the modification of a non-conforming as presented. We feel that due to the fact that the dwelling was constructed prior to the to the current zoning ordnance, the additions to the existing structure are in keeping with the surrounding properties, and that the expansion does not pose any determent to adjacent properties, the request has merit. We would prefer this type of development vs. potentially a larger duplex. Should there be any questions please contact me at 431- 1041 x 16. Sincerely, Billy William D. Almond, ASLA Chair, NVBCL Zoning Review Committee IIII1 SCOTT AND DALE BANNING Mo A;!:ft~~ole Scott &mDa,1e Banninl! ~~~~"~\ \ lJo ~~ J\;;~-~ - ~~ \ \ ~ ;;;.. \~~ ~ CJ' ~ r-' If <R ~ ~ Po -=1 ~ ~.. (' , ., \~ P ~~ , ~ ~" \. 0 ~ ~\~\\ \\~~~ ~ .~ ~'r ~~ ~~ ~R~ 1\\ . ~ iIIII ~, ~ "'~ ({ il ~ ...:::1: J\ ~~'~ ~ ~ ~ ~';1l>-1f[,,:i ..,~: :: y~ " ~ ~~ ~,.-- ~ ~ ~. ~ . ~ ~ 1M" ,," """ ~ ~ f ~\ ~ ~ ~ ~I~' ~ . \ v~ ~~ _.~ l~~~ u .rfi~ ~I r'\ l-- k"~ ;L, ~ \D1o\~\ ~~~ \ ~ ~ _::::J ,! '\}., \l \\\~ ~~ CX\ \\ \,1'"' j ~~ ~ \ ~ - ,~ ~ I\SuE~ ~ ~~ ~~;:~ ,~ ~m ~ ~ l~~ ~ ~\ll): :.% ~ ~}r/ 1~~~~i:.AC~~--~~j~ ~~\I\ \~ ~~~ ~1~\1~~\\)\~: ~~~~ \ ~f\\'\~ ~~,r~\ \ NOll-Conforming Use Relevant Information: · Lynnhaven District · The applicant requests alteration and expansion to a nonconforming '" use. There is a single-family dwelling and a garage apartment on the site, which makes the garage apartment non-conforming since two dwellings may not be located on one zoning lot. · Changes include re-introduction of a garage to the garage apartment, constructed in 1940, and a slight expansion of the second floor of the garage apartment to match the first floor. · AICUZ is 65 - 70 (Sub-Area 1). Recommendation: · Approval ill II - 63 - Item V-K.2. PLANNING ITEM # 58658 Attorney R. Edward Bourdon, Pembroke Office Park, Building 1,281 Independence Boulevard, Phone: 499-8971, represented the applicant, and distributed a copy of a plat which can be accomplished, "by right" (a cul-du-sac), chop down the trees and buildfive (5) new homes. Attorney Burdon also distributed depictions of new (2) layouts for the new homes. Said information is hereby made a part of the record. The condition was agreed that there be only one (1) driveway to serve both houses on this 114 feet offrontage on Lancelot Drive (one shared driveway) and one new home for a total of two (2) on 1.84 acres. Variances are not uncommon in this area. Two "flag lots" are Located directly across Avalon Avenue. Petitions in support are hereby made a part of the record. Lisa Reed, 521 Avalon Avenue, Phone: 362-1659, adjacent resident, expressed SUPPORT. Mike Brewer, 708 Avalon Avenue. President - Avalon Terrace, Avalon Villa, Woods of Avalon and English Avalon Civic League (encompassing over 440 homes), Phone; 420-6191. The Civic League has voted to OPPOSE the application. Upon motion by Councilman Diezel, seconded by Councilman Wood, City Council ADOPTED the application of BRUCE and ELIZABETH HEDLUND for a Variance to Subdivision Ordinance re subdividing the property at 5711 Lancelot Drive into two (2) single-family home sites Ordinance upon application of BRUCE and ELIZABETH HEDLUND for a Variance to Subdivision Ordinance re subdividing the property at 5711 Lancelot Drive into two (2) single-family home sites. (GPIN: 1456972108) DISTRICT 2 - KEMPSVILLE The following conditions shall be required: 1. The final plat shall show no more than two (2) parcels, as depicted on the plan entitled, "PRELIMINARY SUBDIVISION OF LOT 8C" dated 03/05/08, prepared by Rood Land Surveying, P. C. has been exhibited to the City Council and is on file with the Planning Department. 2. A single shared driveway shall serve both lots. 3. Trees on the site shall be preserved to the greatest extent possible. 4. The exterior fac;:ade of the home to be constructed on proposed Lot 8C-1 shall be substantially consistent with one of the three rendered residential building elevations submitted with the application. 5. The existing house to be remodeled on proposed Lot 8C-2 shall be reoriented so the front of the house faces the lot line between proposed lot 8C-1 and Lot 8C-2. The house on proposed Lot 8C-2, when renovated, shall be compatible with the design of the house built on Lot 8C-1 This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine March 24,2009 ill II - 64- Item V-K.2. PLANNING ITEM # 58658 (Continued) Voting: 9-1 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: Barbara M Henley Council Members Absent: Ron A. Villanueva March 24, 2009 ill II - 65 - Item V-K.3. PLANNING ITEM # 58659 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED the Ordinance upon application of ROBERT H. JOHNSON for a Variance to the Subdivision Ordinance re subdividing the property at 1601 Virginia Beach Boulevard into two single-family home sites Ordinance upon application ROBERT H. JOHNSON: Variance to the Subdivision Ordinance re subdividing the property at 1601 Virginia Beach Boulevard into two single-family home sites (GPIN: 2407953533) DISTRCT 6 - BEACH The following conditions shall be required: 1. There shall be only one (1) single-family dwelling on each parcel. A note to such effect shall be placed on the plat for recordation. 2. Single-family dwellings constructed on the parcels shall be no taller than two-stories (Plus roof) or thirty-five (35) feet, whichever is more restrictive. 3. The exterior design of the single-family dwellings shall incorporate the use of dormers as an architectural element. 4. The design of the exterior of the proposed dwellings shall be approved by the Planning Director or his designee prior to the issuance of building permits This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 ill II - 66- Item V-K.4. PLANNING ITEM # 58660 Attorney Les Watson, One Columbus Center, Suite 1100, Phone: 497-6633, represented the applicant, and requested a DEFERRAL to enable the applicant, neighbors and Vice Mayor Jones to confer. Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED TO APRIL 28, 2009, an Ordinance upon application of MCRJERS, LLC for the closure of portion of Windsor Crescent at 3868 Jefferson Boulevard. ORDINANCE UPON APPLICATION OF MCRJERS, LLC, FOR THE CLOSURE OF A PORTION OF WINDSOR CRESCENT TO THE NORTH OF 3868 JEFFERSON BOULEVARD. Ordinance upon application of MCRJERS, LLC for the closure of a portion of Windsor Crescent to the north of 3868 Jefferson Boulevard. DISTRICT 4 - BAYSIDE Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 IIII1 - 67- Item V-K.5. PLANNING ITEM # 58661 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED the Ordinance upon application TOWN CENTER ASSOC, L.L.C. re closure of portion of Market Street at Columbus Street. Ordinance upon application of TOWN CENTER ASSOCIATES, L.L.c., re closure of a portion of Market Street, located at the northeast corner of the intersection of Market Street and Columbus Street. DISTRICT 5 - LYNNHA VEN DISTRICT. The following conditions shall be required: 1. The City Attorney's Office will make the final determination regarding ownership of the underlyingfee. The purchase price to be paid to the City is normally determined according to the "Policy Regarding Purchase of the City's Interest in Streets Pursuant to Street Closures, " approved by City Council. Copies of the policy are available in the Planning Department. No purchase price shall be charf!ed in this street closure. however, because the Development Authority (the current owner of the property affected by the street closure) shall reconvey to the City, as considerationfor this street closure, any interest in subjacent air space that no longer needs to be reserved by reason of this street closure. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within the right-of-way proposedfor closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of-way proposedfor closure. Ifprivate utilities do exist, easements satisfactory to the utility company must be provided 4. The applicant shall cause to be conveyed to the City any interest in adjoining subjacent air space that is no longer needed by reason of this street closure. In exchange, the City shall convey to the Development Authority the closed portion of Market Street together with the closed portion of subjacent air space, subject to the same terms and conditions set forth in those Deeds of Dedication recorded in the Clerk's Office of the Circuit Court as Instrument Numbers 200212313087765 and 200402100024237. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within three hundred sixty five (365) days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year (March 24, 2010) of the City Council vote to close the right-of-way, this approval shall be considered null and void 6. Ifrequired by the Public Works Department, the applicant shall relocate, in a manner satisfactory to the Public Works Department, the existing traffic signal pole and any other signal equipment now located within the right-of-way proposedfor closure. March 24,2009 ill II - 68 - Item V-K.5. PLANNING ITEM # 58661 (Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24,2009 ill II - 69- Item V-K.6. PLANNING ITEM # 58662 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED the Ordinance upon application of TOWN CENTER BLOCK 10 APARTMENTS, L.P.,for a Conditional Use Permit re public or private college or university at 4544 Columbus Street: ORDINANCE UPON APPLICATION OF TOWN CENTER BLOCK 10 APARTMENTS, L.P., FOR CONDITIONAL USE PERMIT, FOR PUBLIC OR PRIVATE COLLEGE OR UNIVERSITY, 4544 COLUMBUS STREET R030935328 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of TOWN CENTER BLOCK 10 APARTMENTS, L.P., for Conditional Use Permit. for public or private college or university, 4544 Columbus Street (GPIN 14775445380181) DISTRICT 5- LYNNHA VEN This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 1 ORDINANCE APPROVING APPLICATION OF 2 TOWN CENTER ASSOCIATES, L.L.C., FOR 3 THE CLOSURE OF A PORTION OF MARKET 4 STREET AND ITS ADJOINING SUBJACENT 5 AIR SPACE AT THE SOUTHWESTERN 6 CORNER OF BLOCK 9 AT TOWN CENTER. 7 8 WHEREAS, Town Center Associates, L.L.C. (the "Applicant") applied to 9 the Council of the City of Virginia Beach, Virginia, to have the hereinafter described 10 portion of Market Street discontinued, closed, and vacated; and 11 12 WHEREAS, it is the judgment of the Council that said street be 13 discontinued, closed, and vacated, subject to certain conditions having been met on or 14 before one (1) year from City Council's adoption of this Ordinance; 15 16 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of 17 Virginia Beach, Virginia: 18 19 SECTION I 20 21 That the hereinafter described portion of Market Street be discontinued, 22 closed and vacated, subject to certain conditions being met on or before one (1) year 23 from City Council's adoption of this ordinance: 24 25 ALL THOSE certain pieces or parcels of land, situate, lying 26 and being in the City of Virginia Beach, Virginia, designated 27 and described as "PORTION OF MARKET STREET AND 3' 28 PUBLIC INGRESS/EGRESS AND UTILITY EASEMENT TO 29 BE CLOSED. AREA = 8 SQUARE FEET" and "SUBJACENT 30 AIR SPACE TO BE CLOSED. AREA = 7 SQUARE FEET" as 31 shown on that certain plat entitled "PLAT SHOWING 32 PORTION OF MARKET STREET TO BE CLOSED, Virginia 33 Beach, Virginia", Scale: 1" = 40', dated December 18, 2008 34 and revised through January 26, 2009, prepared by MSA, 35 PC, a copy of which is attached hereto as Exhibit A. 36 37 SECTION II 38 39 The following conditions must be met on or before one (1) year from City 40 Council's adoption of this ordinance: 41 42 43 44 GPIN 1477-54-1429 1 '1111 45 1. The City Attorney's Office will make the final determination 46 regarding ownership of the underlying fee. The purchase price to be paid to the City is 47 normally determined according to the "Policy Regarding Purchase of City's Interest in 48 Streets Pursuant to Street Closures," approved by City Council. Copies of the policy are 49 available in the Planning Department. No purchase price shall be charged in this street 50 closure; however, because the City of Virginia Beach Development Authority (the 51 current owner of the property affected by the street closure) shall reconvey to the City, 52 as consideration for this street closure, any interest in subjacent air space that it no 53 longer needs to be reserved by reason of this street closure. 54 55 2. The applicant shall resubdivide the property and vacate internal lot 56 lines to incorporate the closed area into the adjoining parcels. The plat must be 57 submitted and approved for recordation prior to final street closure approval. 58 59 3. The applicant shall verify that no private utilities exist within the 60 right-of-way proposed for closure. Preliminary comments from the utility companies 61 indicate that there are no private utilities within the right-of-way proposed for closure. If 62 private utilities do exist, easements satisfactory to the utility company, must be 63 provided. 64 65 4. The applicant shall cause to be conveyed to the City of Virginia 66 Beach any interest in adjoining subjacent air space that is no longer needed by reason 67 of this street closure. In exchange, the City shall convey to the City of Virginia Beach 68 Development Authority the closed portion of Market Street together with the closed 69 portion of subjacent air space, subject to the same terms and conditions set forth in 70 those Deeds of Dedication recorded in the Clerk's Office of the Circuit Court of the City 71 of Virginia Beach as Instrument Numbers 200212313087765 and 200402100024237. 72 73 5. Closure of the right-of-way shall be contingent upon compliance 74 with the above stated conditions within 365 days of approval by City Council. If the 75 conditions noted above are not accomplished and the final plat is not approved within 76 one year of the City Council vote to close the right-of-way this approval shall be 77 considered null and void. 78 79 6. If required by the City of Virginia Beach Public Works Department, 80 the applicant shall relocate, in a manner satisfactory to the City of Virginia Beach Public 81 Works Department, the existing traffic signal pole and any other signal equipment now 82 located within the right-of-way proposed for closure. 83 84 SECTION III 85 86 1. If the preceding conditions are not fulfilled on or before March 24, 87 2010, this Ordinance will be deemed null and void without further action by the City 88 Council. 2 89 2. If all conditions are met on or before March 24, 2010, the date of final 90 closure is the date the street closure ordinance is recorded by the City Attorney. 91 92 3. In the event the City of Virginia Beach has any interest in the 93 underlying fee, the City Manager or his designee is authorized to execute whatever 94 documents, if any, that may be requested to convey such interest, provided said 95 documents are approved by the City Attorney's Office. 96 97 SECTION IV 98 99 A certified copy of this Ordinance shall be filed in the Clerk's Office of the 100 Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the CITY 101 OF VIRGINIA BEACH as "Grantor" and TOWN CENTER ASSOCIATES, L.L.C. and the 102 CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY as "Grantees." 103 104 Adopted by the Council of the City of Virginia Beach, Virginia, on this 105 24tn:layof March ,2009 106 107 THIS ORDINANCE REQUIRES AN AFFIRMATIVE VOTE OF THREE- 108 FOURTHS OF ALL COUNCIL MEMBERS ELECTED TO COUNCIl. APPROVED AS TO LEGAL SUFFICIENCY: APPROVED AS TO CONTENT: Cily~0!e/1~ ~ CA10781 V ,\ applications\citylawprod\cycom32' Wpdocs'DO I 8\P004\0007 506 7. DOC R-1 03/24/09 3 :i w t- ...... ~~ VI<( ~.5 <(I"') ZC1l -C1l 0..... a:: , 01"') 000 ()C1l ..... ~O 4:.<( ..JZ a.. ~~ <(0 t-N VI?: ::!:::) ~O 0V1 a:: 5 ~ ~ ~~~ ~ ~~ ~~c:s ~ ~l::: ~ ~~ '"~ ~ ~~~ !:.i:i ~~ ~ "'- ~ CIl " ~ "~g: ~~~ ~ "'- ~ 84.85' EXHIBIT A - Page 1 of 2 VIRGINIA BEACH BLVD ~I I D~ ...J' t- <( CD BANK VI ST ~ ~I I~D~ ~ COMMERCE fE ST ...J ~l I~l * I~ SITE ~ COLUMBUS ST ~ ~r 1 I a:: o Z S N ~ f= (f) Z o 1 () SOUTHERN BLVD LOCA TlON MAP - SCALE: 1" = 2,000' I ~ . o NOTE: MERIDIAN SHOWN HEREON IS BASED ON THE VIRGINIA STATE PLANE COORDINATE SYSTEM. SOUTH ZONE, NORTH AMERICAN DATUM 1983/1993 HARN (NAD 83/93, HARN) AND REFERENCED TO VIRGINIA BEACH GPS STATIONS "4737-1744" & "4793". , 3' Pl/8LIC INGRESS/t"GRESS COI./MERCE sma., (81 N/W) r ANO l/llL/TY EASEMENT (lNST. ;1200402060023049) (/NST. ,#200402100024237) (FORAlERL Y CLEVELANO STREET) (/NST. ;1200404080055240) (TYP) If) N 89'35'57" E -L--200.26'--~P\~\ p\t-1tf)~ N 3.474.594.1037 N 3.474.595.5046" II IE 12.175.006.2284 E 12.175.206.4835 I J' Sl/8JACENT A/R SPACE (/NST. ;1200212313087765) I (/NST. ;1200402100024237) I in (/NST. ;/200404080055240) (TYP) ~ . TOWN CENTER BLOCK 9 to ~ ~ ~ ~ N (lNST. #200402060023049) N ::' AREA- 44,062 SF N ~ B- OR 1.012 AC I ~ ~ ~~ GPIN:1477-54-1429 ~ ,... I ~ ~ ~~ w~~ ~~~ ~~~ o.-:::~ ~~ I ..... ';q- N b o Z I 18' PREV/Ol/S RIGHT-OF-WA Y OEO/CA nON (/NST. /2004020ti002J04.9) SEE DETAIL 'A' PREV/Ol/S S 44'35'53" W RIGHT-OF-WAY OEO/CAllON , (/NST. ;120021230308(483) 10.38 S 89'35'53' W -190.63 COlIJMBIJS SmEET (VAN mom N/W) (MB 110, PC 12) (lNST. 20021230308(483) &. REV AS PER CLIENT PI~(f) SHEET 1 OF 2 :MSA. P.C. ENVIRONMENTAL SCIENCES 'GEOSCIENCES PLANNING . SURVEYING · ENGINEERING . LANDSCAPE ARCHllEClURE 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23462 757-490-9264 (OFC) 757-490-0634 (FAX) www.msoonllne.com PROJ. NO.: 06161B DRAWN: KCR PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED , VIRGINIA BEACH, VIRGINIA DATF~ 1?-1R-?nnA C:f'AI L. ." - .~. EXHIBIT A - Page 2 of 2 CURVE TABLE CURVE RADIUS LENGTH TANGENT CHORD BEARING DELTA C1 25.00 10.78 5.48 10.70 S 12'42'36" E 24'42'36" C2 28.00 10.71 5.42 10.65 S 1119'42" E 21'55'04" C3 25.00 3.42 1. 71 3.42 N 29'01'48" W 7'50'21 " LINE TABLE LINE BEARING LENGTH L1 N 00'24'10" W 1 0.45 L2 S 89'35'53" W 2.02 L3 S 89'35'53" W 0.97 L4 S 00'24'10" E 3.00 L5 S 89'35'53" W 11.08 L6 N 89'35'53" E 12.72 ~~ J::::~ 5j':"i ~~ ~~ ~~ ~~ I~ ~~~ ~~\..: !i.J~!,r) a:~~ c: ;: b P'777:l _ SUBJACENT AIR SPACE TO BE CLOSED. ~ ~ AREA = 7 SQUARE FEET g ~ SUBJACENT AIR SPACE TO BE CONVEYED o ~ TO THE CITY OF VIRGINIA BEACH. z AREA = 36 SQUARE FEET ~\~l E.~~it?f;i'~j PORTION OF MARKET STREET AND 3' ~~~ . - .' PUBLIC INGRESS/EGRESS AND UTILITY EASEMENT TO BE CLOSED. AREA = B SQUARE FEET PREVlOl/S RICHT-OF-WA Y OEOICA llON (lNST. /20021230308(483) N 89'35'53" E ~' PUBLIC /NGRESS~CRESS ~ ANO l/llLlTY EASEMENT ~ (iNST. /20i}2123130877(5) (lNST. /200402100024237) (lNST. /200404080055240) (T'IP) 18' J' Sl/B.JACENT AIR SPACE (lNST. #2002123130877(5) (lNST. /200402/00024237) (lNST. #200404080055240) (TYP) OETAll A SCALE: ,- = 10' ~I AS PER CLIENT ~1-26-20091 SHEET 2 OF 2 lV:ISA. P .c. ENVIRONMENTAl SCIENCES 'GEOSClENCES PLANNING . SURVEYING . ENGINEERING . LANOSCAPE ARCHllECTURE 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23462 757-490-9264 (OFC) 7.57-490-0634 (FAX) www.msaonhe.com PROJ. NO,: 06161B DRAWN: KCR PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED VIRGINIA BEACH, VIRGINIA nATj:". 1?_1J:1_"nno '"'"., r-. A" '1111 - 70- Item V-K. 7. PLANNING ITEM # 58663 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED the Ordinance upon application of REGENT UNIVERSITY for a Conditional Use Permit re student dormitory buildings/dining hall at 1352 and 1354 Regent University Drive: ORDINANCE UPON APPLICATION OF REGENT UNIVERSITY FOR A CONDITIONAL USE PERMIT. RE STUDENT DORMITORIES AND DINING FACILITY at 1352 / 1354 REGENT UNIVERSITY DRIVE. R030935329 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of REGENT UNIVERSITY for a Conditional Use Permit, re student dormitories and diningfacility, 1352 /1354 Regent University Drive. (GP IN: 14557768620000; 14557766700000; 14557771220000; 14557761 050000;14557734990000;14557742690000). DISTRICT 1 - CENTERVILLE The following conditions shall be required: 1. The development of the site shall substantially conform to the submitted exhibit titled "Regent University Campus Expansion ", dated 11/13/08, and prepared by Vanasse Hangen Brustlin, Inc. The Plan has been exhibited to the City Council and is on file with the Department of Planning. 2. The applicant shall submit to the current Planning Staff the architectural elevations, a list of building materials, and colors for the proposed buildings during detailed site plan review. The proposed architecture and building materials shall be consistent with the quality architecture currently existing on the Regent University campus. 3. Parkingfor students occupying the dormitories shall be provided on-campus. Students who are assigned residences in the dormitories shall acknowledge in writing that the student understands that parking shall be on campus and not off-campus in the surrounding commercial and residential areas. Such acknowledgement shall be made on a form provided by and stored by the University. 4. The proposed dining hall shall not be available to the general public. 5. The developer / owner shall provide a photometric plan for review / approval by the Police Department or appropriate City staff. To the greatest extent possible, lighting should overlap and be uniform throughout the parking lot. It is recommended that all lighting on the site be consistent with those standards recommended by the Illumination Engineering Society of North America. March 24, 2009 IIII1 - 71 - Item V-K.7. PLANNING ITEM # 58663 (Continued) This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine Voting: 9-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Abstaining: Robert M Dyer Council Members Absent: Ron A. Villanueva Councilman Dyer DISCLOSED and ABSTAINED pursuant to Section 2.2-3115(E), Code of Virginia, re Item 7 (Regent University for a Conditional Use Permit at 1352 and 1354 Regent University Drive) Councilman Dyer has a personal interest in this transaction as an employee of the applicant, Regent University, which is located at 1000 Regent University Drive. Councilman Dyer's correspondence of March 24,2009, is hereby made a part of the record. March 24.2009 ill II City c>f Virgi:rl.ia Beach BOB DYER COUNCILMAN - DISTRICT 1 - CENTERVILLE PHONE: (757) 467-3130 CELL: (757) 749-4659 BDYER@VBGOV.COM In Reply Refer to 0038425 March 24, 2009 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Fraser: Re: Abstnetion Pursuant to Conflict ofInterests Act S 2.2-3115 (E) Pursuant to the State and Local Government Conflict ofInterests Act, I make the following declaration: 1. I am executing this written disclosure regarding City Council's discussion and vote on the application of Regent University for a Conditional Use Permit at 1352 and 1354 Regent University Drive. 2. I have a personal interest in this transaction because I am an employee of the applicant, Regent University, which is located at 1000 Regent University Drive. 3. I wish to disclose this interest and abstain from voting on this matter. Accordingly, I respectfully request that you record this declaration in the official records of City Council. 1668 LAKE CHRISTOPHER DRIVE, VIRGINIA BEACH, VA 23464 IIII Mrs. Ruth Hodges Fraser -2- March 24, 2009 Re: Abstention Pursuant to Conflict of Interests Act S 2.2-3115 (E) Thank you for your assistance and cooperation in this matter. Robert M. Dyer Councilmember RMD/RRI III II - 72- Item V-K8. PLANNING ITEM # 58664 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of STUDIO BAMBOO INSTITUTE OF YOGA, for a Conditional Use Permit, re yoga studio at 2865 Lynnhaven Drive: ORDINANCE UPON APPLICATION OF STUDIO BAMBOO INSTITUTE OF YOGA, FOR A CONDITIONAL USE PERMIT. RE YOGA STUDIO AT 2865 LYNNHA VEN DRIVE: R030935330 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of STUDIO BAMBOO INSTITUTE OF YOGA, for a Conditional Use Permit, re yoga studio at 2865 Lynnhaven Drive (GPIN: 1499389629) DISTIRCT 5 - LYNNHA VEN The following condition shall be required: 1. This Use Permit is validfor the subject unit of 3,700 square feet and any future units in the commercial center on the property that the studio may expand into. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva Council Lady Wilson DISCLOSED pursuant to Section 2.2-3115(E), re Item K.8 (Studio Bamboo Institute of Yoga) for a Conditional Use Permit at 2865 Lynnhaven Drive). Council Lady Wilson has a personal interest in this transaction because her husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Studio Bamboo Institute of Yoga. Her husband does not personally provide services to Studio Bamboo Institute of Yoga. The City Attorney's Office has advised although she has a personal interest in the transaction, because her husband does not personally provide services to Studio Bamboo Institute of Yoga, she may participate without restriction in City Council's discussion and vote on the application. Council Lady Wilson's correspondence of March 24, 2009, is hereby made a part of the record March 24,2009 11111 City e>f Virgir1ia Beach VBgov.com ROSEMARY WILSON COUNCIL LADY. AT-LARGE PHONE: (757) 422-0733 FAX: (757) 385-5669 In Reply Refer to 0038423 March 24, 2009 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 ........, Dear Mrs. Fraser: Re: Disclosure Pursuant to Conflict of Interests Act S 2.2-3115 (H) Pursuant to the State and Local Government Conflict of Interests Act, I make the following declaration: 1. I am executing this written disclosure regarding City Council's discussion and vote on the application of Studio Bamboo Institute of Yoga for a Conditional Use Permit at 2865 Lynnhaven Drive. 2. I have a personal interest in this transaction because my husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Studio Bamboo Institute ofY oga. My husband does not personally provide services to Studio Bamboo Institute of Yoga. 3. The City Attorney's Office has advised me that although I have a personal interest in this transaction, because my husband does not personally provide services to Studio Bamboo Institute ofY oga, the Act provides that I may participate without restriction in Council's discussion of, and vote on, the application, upon disclosure of this interest. 4. I wish to disclose the above facts and declare that I am able to participate in the transaction fairly, objectively, and in the public interest. 1304 WREN PLACE, VIRGINIA BEACH, VA 23451 III II Mrs. Ruth Hodges Fraser -2- March 24, 2009 Re: Disclosure Pursuant to Conflict of Interests Act 9 2.2-3115 (H) Accordingly, I respectfully request that you record this declaration in the official records of City Council. Thank you for your assistance and cooperation in this matter. Sincerely, ~ tl!/J~ Rosemary A. Wilson Councilmember RAW /RRI IIII1 - 73 - Item V-K9. PLANNING ITEM # 58665 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of JULIE COLEMAN - ZEN HOT YOGA, for a Conditional Use Permit, re a yoga studio, 3352 Princess Anne Road, Suite 901. ORDINANCE UPON APPLICATION OF JULIE COLEMAN - ZEN HOT YOGA, CONDITIONAL USE PERMIT. RE YOGA STUDIO R03093533I BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of JULIE COLEMAN - ZEN HOT YOGA, for a Conditional Use Permit. re yoga studio, 3352 Princess Anne Road, Suite 901 (GPIN: 1485919394) DISTRICT 7 - PRINCESS ANNE DISTRICT The following condition shall be required: I. All necessary permits and a Certificate of Occupancy for this use shall be obtained from the Department of Planning / Permits and Inspections Division before occupancy and use of the Building for a yoga studio. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24,2009 III II - 74- Item V-K.I0. PLANNING ITEM # 58666 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinances upon application of DANIEL J. BLEVINS re Modifications of Conditions 1 and 5 and Change of Zoninf! District Classification: Ordinance upon application of DANIEL J. BLEVINS, Modification of Conditions, approved by City Council on October 9, 2007, 920 South Military Highway. AICUZ is less than 65. DISTRICT 1- CENTERVILLE DISTRICT. The following conditions shall be required: a. Modifications of Conditions Nos. 1 and 5 re: number of units per acre and parking (approved October 9, 2007) 1. The Property shall be usedfor the purposes and uses permitted in the A-24 Apartment District. Grantor agrees to a density not to exceed ..J..&J. ~apartment units per acre for a total number of apartments not to exceed ~ 312 units. The maximum height of the buildings shall not exceed forty-five (45) feet. 5. The exterior of the typical apartment building shown upon the Site Plan shall be substantially similar in appearance to the color coordinated rendering exhibits prepared by Kotarides. The exhibit being the same exhibits as the color coordinated exhibit submitted to the City Council and onjile in the Planning Department and being composed of the same building materials and elevations as reflected upon the elevation exhibit onjile in the Planning Department (the "BELMONT AT PROVIDENCE TYPICAL BUILDING ELEVATION"). The building materials for the dwelling units will include brick veneer on the lower level, picket railings on the balconies and horizontal lapped siding. Additionally, forty-three (43) parking spaces have been added within four (4), one-story garage units located at the southwest corner of site. The proposed garages are in keeping with the approved building materials and colors. March 24, 2009 IIII1 - 75 - Item V-K.IO. PLANNING ITEM # 58666 (Continued) ORDINANCE UPON APPLICATION OF DANIEL J. BLEVINS, CHANGE OF ZONING DISTRICT CLASSIFICATION. A-24 APARTMENT DISTRICT TO B-2 COMMUNITY BUSINESS DISTRICT, 920 SOUTH MILITARY HIGHWAYZ0309I222 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of DANIEL J. BLEVINS, Change of Zoning District Classification. A-24 Apartment District to B-2 Community Business District, 920 South Military Highway (GPIN: 1456230790) DISTRICT 1- CENTERVILLE The following condition shall be required: 1. Agreement encompassing modified proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva March 24, 2009 '1111 ------ CITY OF VIRGINIA BEACH fNTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7338 DATE: March 13, 2009 TO: FROM: Mark D. Stiles" J ~~ B. Kay Wilson~ DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Daniel Blevins, 1652, LLC - Modification of Conditions The above-referenced conditional zoning application is scheduled to be heard by the City Council on March 24, 2009. I have reviewed the subject proffer agreement, dated December 11, 2008 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen ./ III 1652, LLC, a Virginia limited liability company To CITY OF VIRGINIA BEACH a Municipal Corporation of the Commonwealth of Virginia THIS AMENDED AND REST A TED PROFFER AGREEMENT ("Agreement") made this 11 th day of December, 2008, by 1652. LLC, a Virginia limited liability company (the "Grantor"); and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (the "Grantee"), with an address of 2405 Courthouse Dr., Municipal Center, Virginia Beach, VA 23456. RECITALS: A. 1652, LLC ("1652") is the owner of a certain parcel of property located in the City of Virginia Beach, herein known as Exhibit A (the "Property"). Kotarides Developers, LLC, 1652's predecessor in title, and others entered into a Proffer Agreement dated August 28, 2007, which was approved by the City Council and duly recorded as Instrument Number 20071016001401130 in the Clerk's Office for the Circuit Court for the City of Virginia Beach on October 16, 2007. B. Grantor has acquired a parcel of property (the "Additional Parcel") by deed dated November 3, 2008 from Indian River Shopping Center, LLC. Said deed was duly recorded as Instrument Number 20081203001377500 in the Clerk's Office for the Circuit Court for the City of Virginia Beach on December 3,2008. PREPARED BY: ANN K. CRENSHAW, ATTORNEY AT LAW, KAUFMAN & CANOLES, P.C. GPIN NO. 1456-23-0790 and 1456-23-4515 , , ill II C. Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach by petition of Grantor addressed to Grantee to change the zoning classification of the Additional Parcel from B-2 to Conditional A-24 Apartments to conform with the existing zoning on the Property. The proposed amendment is made pursuant to the terms of the City Zoning Ordinance of the City of Virginia Beach, adopted April 18, 1988, as amended and in effect on the date of this Agreement (the "City Zoning Ordinance"). D. Grantee's policy is to provide for the orderly development of land for various purposes, including commercial purposes, through zoning and other land development legislation. E. Grantor acknowledges that in order to prevent incompatible land use, reasonable conditions governing the use of the Property, in addition to the regulations generally applicable to land zoned A-24 Apartments as specified in the City Zoning Ordinance, are required to address the project proposed in Grantor's rezoning application. F. Grantor has voluntarily proffered in writing, prior to the public hearing before Grantee, as a part of the proposed amendment to the Zoning Map and in addition to the regulations specified in the City Zoning Ordinance for the A-24 Apartment zoning district, reasonable conditions outlined in this Agreement related to the development and operation of the Property. These conditions will be adopted as a part of the amendment to the Zoning Map relative to the Property, and have a reasonable relation to the use of the Property as rezoned A-24 Apartment and are needed as a result of the rezoning. G. The conditions outlined in this Agreement have been proffered by Grantor and allowed and accepted by Grantee as a part of the amendment to the City Zoning Ordinance and 2 'II II the Zoning Map. These conditions shall continue in full force and effect until a subsequent amendment changes the zoning of the Property; provided, however, that such conditions shall continue if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance of Grantee. NOW, THEREFORE, Grantor, its heirs, successors, assigns, grantees and other successors in title or interest to the Property, voluntarily and without any requirement by or exaction from Grantee or its governing body and without any element or compulsion or quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, makes the following declaration of conditions and restrictions governing the use and physical development and operation of the Property, and covenants and agrees that this declaration and the further terms of this Agreement shall constitute covenants running with the Property, which shall be binding upon the Property, and upon all persons and entities claiming under or through the Grantor, its heirs, successors and assigns, grantees and other successors in interest or title to the Property; namely: 1. The Property shall be used for the purposes and uses permitted in the A-24 Apartment District. Grantor agrees to a density not to exceed 19 apartment units per acre for a total number of apartments not to exceed 312 units. The maximum height of the buildings shall not exceed forty-five (45) feet. 2. Grantor shall comply with reasonable comments offered by the City. Grantor shall comply with all terms and conditions of all City Ordinances related to matters of Public Works, Traffic Engineering, Public Safety, Public Utilities and Storm Water Management. Grantor shall dedicate an additional right of way as more particularly set forth in the Site Plan. 3 IIII An application for an administrative varIance to the Chesapeake Bay Preservation Act to encroach into the Variable Width Buffer has been submitted by the Grantor. 3. In order to provide for the coordinated development of the Property, the Property shall be developed in substantial conformity with that certain plan entitled "SCHEMA TIC SITE PLAN, BELMONT AT PROVIDENCE" dated November 13,2008, prepared by Massey Design & Associates (the "Site Plan"), a copy of which is on file with the City of Virginia Beach, Department of Planning, with regard to layout, ingress and egress, and landscaping. Grantor shall comply with all terms and conditions of all City Ordinances and Guidelines pertaining to landscape design. Category IV landscaping and fencing, as more particularly described in the Site Plan, and the color coordinated rendering exhibit prepared by 1652 entitled "BELMONT AT PROVIDENCE CROSS SECTION SHOWING CATEGORY 4 LANDSCAPING ADJACENT TO BURLINGTON PLAZA" will be installed on all adjacent parcels zoned for business uses. Foundation planting beds, as more particularly described in the Site Plan, shall be five (5) feet from front to back. The landscaping shall substantially conform to the Site Plan and other exhibits submitted to City Council and the Planning Department for the City of Virginia Beach. 4. The exterior of the typical apartment building shown upon the Site Plan shall be substantially similar in appearance to the color coordinated rendering exhibits prepared by Kotarides, said exhibit being the same exhibits as the color coordinated exhibit submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and being composed of the same building materials and elevations as reflected upon the said elevation exhibit on file in the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE TYPICAL BUILDING ELEVATION"). The building 4 materials for the dwelling units will include brick veneer on the lower level, picket railings on the balconies, and horizontal lapped siding. 5. Belmont at Providence shall include a Clubhouse with an exercise facility, a kitchen, a swimming pool, central mail boxes and a business office. The Clubhouse shall be developed with architectural features that are substantially similar in appearance to those depicted on the color coordinated rendering exhibit prepared by 1652 entitled "BELMONT AT PROVIDENCE CLUBHOUSE". The footprint of the Clubhouse shall be substantially similar in appearance to the Site Plan submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and being composed of substantially similar building materials and elevations as reflected upon the color coordinated rendering exhibit of the Clubhouse which is on file in the Planning Department of the City of Virginia Beach, Virginia. Building materials for the Clubhouse will be brick and siding materials. 6. The swimming pool shall include decorative water features, fencing, and a pergola. The pool will be developed with architectural features that are substantially similar to the color coordinated photograph of the swimming pool submitted to City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected therein. Building materials for the pool will be brick, masonry and concrete. The fencing surrounding the pool will be black anodized aluminum. 7. Private recreational amenities shall include a Picnic Shelter, a Tot Lot and gazebos for the residents of Belmont at Providence. The gazebos shall be developed with architectural features that are substantially similar to the photograph of the gazebo submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and 5 IIII1 being comprised of substantially similar building materials and elevations as reflected therein. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. 8. Pedestrian trails will be constructed by utilizing environmentally friendly pervious materials to encourage the residents' interaction with the natural beauty of the site. The trails shall be developed with features that are substantially similar in appearance to the color coordinated rendering exhibit submitted to the City Council and on file with the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE VIEW OF PEDESTRIAN TRAIL and ACTIVE OPEN SPACES") prepared by Kotarides. As a matter of public safety, pedestrian trails shall be designed to maximize sight lines and surveillance opportunities by users, while keeping with the natural appearance of the open space. Pedestrian trail landscaping within eight (8) feet of the pathways will be kept low, less than three (3) feet, and tree canopies shall be raised up to seven (7) feet. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. 9. The community signs and fencing will be built with architectural features that are substantially similar to the photographic exhibit of the signage and fencing submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected upon the color photographic renderings. The community signs shall be externally lighted and constructed primarily of brick. The landscaping surrounding the community signs shall be substantially similar to that set forth in the Site Plan. 6 10. Open space shall be provided as shown upon the Site Plan, a copy of which is on file with the City of Virginia Beach, Department of Planning. The open space will not be open to the public at large. The open space shall be owned and maintained by the owner. 11. A Photometric Plan shall be submitted for review and approval. Full cut-off fixtures shall be used for parking lot lighting. All lighting on the site shall be consistent with those standards recommended by the Illuminating Engineering Society of North America. 12. This Amended and Restated Proffer Agreement supersedes all other Proffer Agreements submitted to the Grantee. The Grantor acknowledges that further lawful conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all appropriate agencies and departments of Grantee, which shall be observed or performed by Grantor. Grantor acknowledges that additional further lawful conditions or restrictions may be imposed by Grantee as a condition of approvals, including but not limited to final Site Plan approval. The Grantor acknowledges that all references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, in force as of the date the conditional rezoning amendment is approved by the Grantee. The Grantor covenants and agrees that (I) the Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions specified in this Agreement, including (a) the ordering in writing of the remedying of any noncompliance with such conditions, and (b) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, 7 III II abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the City Zoning Ordinance or this Agreement, a petition shall be filed to the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the Map the existence of conditions attaching to the zoning of the subject Property on the Map and that the ordinance and conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. REMAINDER OF PAGE LEFT INTENTIONALLY BLANK 8 IIII1 WITNESS the following signs and seals: 1652, LLC, a Virginia limited liability company By:M~ eJ~ \u~1~<7 Its: Manager COMMONWEAL TH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, L P. tAr C{ /Ill, f}.5 he,. , the undersigned, a Notary Public in and for the City and State aforesaid, do hereby certify that IJ lex Ie Ie. ~f4,....Jdwhose name is signed to the foregoing instrument as Manager of 1652, LLC, a Virginia limited liability company, has sworn to, subscribed, and acknowledged the same before me in the City and Commonwealth aforesaid this 23 day of 3aJt-u IlJ ' ~ on behalf of said limited liability company. - ~2-dt??'f~ '~ 711. ~ ~ ry Public My commission expires: 5- / J f )ZD( I Registration No.: 332- qf.p I . ::ODMA\PCDOCS\DOCSVB\8249509\18 9 IIII1 EXHIBIT A LEGAL DESCRIPTION All that certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, and known, numbered and designated as "PARCEL A-3-2-2A, 17.012 ACRES", as shown on that certain plat entitled "RESUBDIVISION OF PROPERTY KNOWN AS PARCEL A-3-2-2 AS SHOWN ON SUBDIVISION OF PROPERTY KNOWN AS PARCEL A-3-2 INSTRUMENT #20080103000013390 AND PARCEL A-3-1 AS SHOWN ON SUBDIVISION OF PARCEL A- 3, SUBDIVISION PLAT OF PROPERTY OF DANIEL HERRON AND LINDA HERRON AND A PORTION OF PROPERTY OF WEBB REALTY COMPANY, INC. INSTRUMENT #20060531000823760 AND CLOSED PORTION OF OLD PROVIDENCE ROAD AS SHOWN ON PLAT SHOWING STREET CLOSURE & EXCESS R/W ON PROVIDENCE ROAD BY CITY OF VIRGINIA BEACH, VIRGINIA MAP BOOK 114, PAGE 54A", dated June 5, 2008, made by WPL, which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book =, Page =. IT BEING PART of the same property conveyed to 1652, LLC by deed from Ping Ping, LLC, a Virginia limited liability company, dated February 1,2008, recorded as Instrument No. 20080205000134130; and AND BEING PART of the same property conveyed to 1652, LLC by deed exchange with Indian River Shopping Center Land Company, LLC, dated November 3,2008, recorded as Instrument No. 20081203001377500. 10 IIII - 76- Item V-Kll. PLANNING ITEM # 58667 Attorney R. Edward Bourdon, Pembroke Office Park, Building 1,281 Independence Boulevard, Phone: 499-8971, represented Floridays, L.L. C. and Mr. and Mrs. Liskey, principals. This application entails Conditional Rezoning of a 1.548 parcel in order to develop a 16-unit townhome-style community, which will be entitled "Bonney Place ". The proposal represents a residential density of 10.38 units per acre. The property is just East of the Town Center and is located in one of the most strategic growth areas, along the City's primary East- West Transportation Corridor and outside of the AICUZ noise zones associated with operations at NAS Oceana. Many months have been expended working with the City's professional design concerning the design of the community. A cross access easement has been proffered on this property. The future connection in the back has also been provided. The units will be composed of brick on the first floor, racine/metal accents, vinyl siding with architectural appeal. The units would be priced in the mid $200,000 range, each unit would have its own garage, and a two car driveway. There would be a total of 56 (fifty-six) parking spaces for the 16 (sixteen) units. An emergency vehicle "turn around" area has also been provided. The following registered in OPPOSITION: Claude Wheeler, 4359 South Fir Court, Phone; 306-1912, represented the South Fir Subdivision and advised the odd shape of this property is too deep to provide a well designedfamily project. The Planning staff recommended this parcel be combined with the adjacent parcel to provide for a planned multi-family project. The proposed site is surrounded on all sides by single family dwellings with an R7.5 zoning. The staff had stated this site was too deep and narrow for multi-family development without the combining of the parcel to the East. This application is inconsistent with the existing Comprehensive Plan. Mr. Wheeler distributed a package of information, including his statement and a Signed Petition in Opposition to the application. Mr. Wheeler expressed concern re the line of sight. The proposed entrance is a danger to all residents in the area. There was a bad accident in front of this very site. The proposed entrance is in a sweeping curve to the right and the speed limit is almost never obeyed. There is a major traffic problem in this area. Mary-Margaret Scott, 184 South Fir Avenue, Phone; 416-7226, 3 %-year resident and educator. Ms. Scott expressed concern re the traffic. Ms. Scott must be careful due to the oncoming traffic when she exists her home. She has already witnessedfour (4) accidents and one (1) accident where a vehicle was avoiding traffic and ended up in the bushes. A tree and telephone pole on the left obstruct her line of sight. Upon motion by Councilman Wood, seconded by Councilman Uhrin, City Council ADOPTED an Ordinance upon application FLORIDAYS, L.L.c.,for a Change ofZoninflfrom R-7.5 Residential to Conditional A-24 Apartment District: ORDINANCE UPON APPLICATION OF FLORIDAYS, L.L.c., FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-7.5 RESDENTIAL DISTRICT TO CONDITIONAL A-24 APARTMENT DISTRICT. 4303 BONNEY ROAD Z03091223 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordnance upon application of FLORIDAYS, L.L.c., for a Cha[lgJLQj Zoning District Classification from R-7.5 Residential District to Conditional A-24 Apartment District at 4303 Bonney Road (GPIN: 14778299490000 DISTRICT 5 - LYNNHA VEN March 24, 2009 11\ II -77 - Item V-K.ll. PLANNING ITEM # 58667 (Continued) The following condition shall be required: 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of March Two Thousand Nine Voting: 8-2 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Robert M Dyer, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wi~onandJamesL. Wood Council Members Voting Nay: Harry E. Diezel and Barbara M Henley Council Members Absent: Ron A. Villanueva March 24,2009 III II CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-709B DATE: March 13, 2009 FROM: Mark D. Stiles , B. Kay WiISO~ DEPT: City Attorney DEPT: City Attorney TO: RE: Conditional Zoning Application; Floridays, LLC - Rezoning The above-referenced conditional zoning application is scheduled to be heard by the City Council on March 24, 2009. I have reviewed the subject proffer agreement, dated April 29,2008 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen../ PREPARED BY, _ smS. ROURDON. .. AHrnN & llVY. P.c. II II FLORIDAYS, LLC, a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDffiONS) CITI OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 29th day of April, 2008, by and between FLORIDAYS, LLC, a Virginia limited liability company, Grantor; and THE CITI OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of that parcel of property located in the Lynnhaven District of the City of Virginia Beach, containing approximately 1.54 acres which is more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference. Said parcel is hereinafter referred to as the "Property"; and WHEREAS, the Grantor has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from R-7.5 Residential District to Conditional A-24 Apartment District; and WHEREAS, the Grantee's policy is to provide only for the orderly dev~lopment of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's rezoning application gives rise; and GPIN: 1477-82-9949 1 PREPARED BY: 13m sYns. IlOURDON. DI AYrnN & llVY. P.C 11\ II WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the A-24 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives, assigns, grantee, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenant and agree that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantee, and other successors in interest or title: 1. When the Property is developed, it shall be as a residential condominium, substantially in accordance with the "CONCEPTUAL SITE LAYOUT BONNEY PLACE 4303 BONNEY ROAD VIRGINIA BEACH, VA", dated 04/29/08, prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Concept Plan"). 2. When the Property is developed, vehicular Ingress and Egress to the Property shall be limited to one (1) entrance from Bonney Road as depicted on the Concept Plan. Should the parcel which adjoins the eastern boundary of the Property be rezoned and/or subdivided, access to Bonney Road shall be shared and shall be shifted to the east to align with Thalia Road. A cross access and shared maintenance easement shall be granted in favor of the adjoining parcel to the east, along the shared property line prior to Site Plan approval, in order to facilitate future shared access. Grantor shall, prior to issuance of the first occupancy permit for a condominium unit in Bonney Place, deposit the sum of $3,000.00 in a reseIVe for replacement account with the Condominium Association to fund the Association's future removal, re-grading and seeding of the portion of the drive aisle which 2 PREPARED BY: IIIB SYKES. BOURDON, m AHERN & U:vv. P.c. III II will be eliminated when the access is combined with the adjoining parcel to the east and realigned. 3. The total number of dwelling units permitted to be constructed on the Property shall not exceed sixteen (16). Each dwelling unit shall contain a minimum of 1400 square feet of living area, and a one (1) car garage. 4. The architectural design and exterior building materials of the residential buildings will be substantially as depicted on the Concept Plan. 5. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; 3 PREPARED BY: lIB SYl'rS. ROURDON. m Am:RN &. llVY. P.C '1111 (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the Grantor and the Grantee. 4 PREPARED BY: II Sfft:S. ROURDON. ~ AHrnN & UVY. P.C 11\ II WITNESS the following signature and seal: Grantor: Floridays, LLC., a Virginia limited liability company By: 571- ~.'{2 (SEAL) Guy B. Liske ,Managing Mem er STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 30th day of April, 2008, by Guy B. Liskey, Managing Member of Floridays, LLC, a Virginia limited liability company, Grantor. A- ~. My Commission Expires: Notary Registration No.: August 31, 2010 192628 5 PREPARED BY: II m'lS. I}OURDON. A1IrnN & 1l:VY. P.c. III II EXHIBIT "A" LEGAL DESCRIPTION ALL THAT certain lot, piece or parcel of land situate, lying and being near Thalia, in the City of Virginia Beach, Virginia, (formerly in Princess Anne County, Virginia), and being more particularly described as follows: BEGINNING at a point in the southern side of Bonney Road (formerly Old London Bridge - Norfolk Road), which point of beginning is 227.92 feet easterly from the southeastern intersection of Andrew Avenue and Bonney Road, and from said point of beginning thence running along the southern line of Bonney Road South 880 55' E a distance of 50 feet to a point; thence turning and running South 60 45' W a distance of 596.5 feet to a point; thence turning and running North 87017 W a distance of 150.7 feet t-,o a point; thence turning and running North 80 55' E 413 feet to a point; thence turning and running South 880 55' E a distance of 84.8 feet; thence turning and running North 60 45' E a distance of 180 feet to the point of beginning. Said parcel being all of Lot "A" as shown on the plat entitled "Property of Andrew Land, located near Thalia, in Princess Anne County, Virginia", dated June 26, 1951, and duly of record in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 29, at Page 29 and all of the parcel shown on the plat entitled "Property of Andrew Land, located near Thalia, Princess Anne County, Virginia", dated October 15, 1952, duly of record in the Clerk's office aforesaid in Map Book 32, at Page 68. GPIN: 1477-82-9949 ConditionaIRezoning/FloridaysjProffer 6 III II - 78 - Item V-K.12. PLANNING ITEM # 58668 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY Ordinance upon application of HARMONY INVESTMENTS, INC.for a Change of Zoning from 1-1 to Conditional A-36 re multi-family dwellings/parking/landscaping/leasing office/clubhouse/pool at 5321 Greenwich Road. This DEFERRAL will allow Planning Staff to meet with the applicant and stakeholders re the Newtown Strategic Growth Plan. ORDINANCE UPON APPLICATION OF HARMONY INVESTMENTS, INC., FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION. FROM 1-1 LIGHT INDUSTRIAL DISTRICT TO CONDITIONAL A-36 APARTMENT DISTRICT, 5321 GREENWICH ROAD Ordinance upon application of HARMONY INVESTMENTS, INC., for a ChanJ!e of Zonin~ District Classification, 1-1 Light Industrial District to Conditional A-36 Apartment District, 5321 Greenwich Road. (GPIN: 14675462280000) DISTRICT 2 - KEMPSVILLE DISTRICT. Voting: 9-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Abstaining: Mayor William D. Sessoms, Jr. Council Members Absent: Ron A. Villanueva March 24, 2009 I1II1 - 79- Item V-K.12. PLANNING ITEM # 58668 (Continued) Mayor Sessoms DISCLOSED and ABSTAINED pursuant to Section 2.2-3115(E), Code of Virginia, re Item K.12 (Harmony Investments for a Conditional Change of Zoning at 5321 Greenwich Road). Mayor Sessoms has a personal interest in this transaction being an Officer of TowneBank. The applicant has advised that TowneBank will provide financing for this project. Mayor Sessoms' correspondence of March 24,2009, is hereby made a part of the record Council Lady Wilson DISCLOSED pursuant to Section 2.2-3115(E) re Item K. 12 (Harmony Investments, Inc. for a Conditional Change of Zoning 15 5321 Greenwich Road). Council Lady Wilson has a personal interest in this transaction because her husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Harmony Investments. Her husband does not personally provide services to Harmony Investments. The City Attorney's Office has advised although she has a personal interest in the transaction, because her husband does not personally provide services to Harmony Investments, she may participate without restriction in City Council's discussion and vote on the application. Council Lady Wilson's correspondence of March 24, 2009, is hereby made a part of the record. March 24, 2009 III I City c:>f Virgi:C1ia. Bea.ch WilLIAM D. SESSOMS, JR. MAYOR VBgov.com MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456-9000 (757) 385-4581 FAX (757) 385-5699 wsessoms@vbgov.com In Reply Refer to 0038424 March 24, 2009 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Fraser: Re: Abstnetion Pursuant to Conflict oflnterests Act S 2.2-3115 (E) Pursuant to the State and Local Government Conflict oflnterests Act, I make the following declaration: 1. I am executing this written disclosure regarding City Council's discussion and vote on the application of Harmony Investments for a Conditional Change of Zoning at 5321 Greenwich Road. 2. I have a personal interest in this transaction because I am an officer of TowneBank, which is located at 297 Constitution Drive in Virginia Beach. The applicant has advised that TowneBank will provide financing for this project. 3. I wish to disclose this interest and abstain from voting on this matter. Accordingly, I respectfully request that you record this declaration in the official records of City Council. Mrs. Ruth Hodges Fraser -2- Re: Abstention Pursuant to Conflict of Interests Act g 2.2-3115 (E) Thank you for your assistance and cooperation in this matter. Sincerely, / ;/t/A /J;( William D. Sessoms Mayor WDS/RRI III II March 24, 2009 IIII1 I City c:>f Virgi:C1ia Beach VBgov.com ROSEMARY WILSON COUNCIL LADY - AT-LARGE PHONE: (757) 422-0733 FAX: (757) 385-5669 In Reply Refer to 0038422 March 24, 2009 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Fraser: Re: Disclosure Pursuant to Conflict of Interests Act S 2.2-3115 (H) Pursuant to the State and Local Government Conflict oflnterests Act, I make the following declaration: 1. I am executing this written disclosure regarding City Council's discussion and vote on the application of Harmony Investments for a Conditional Change of Zoning at 5321 Greenwich Road. 2. I have a personal interest in this transaction because my husband is a principal in the accounting firm of Goodman and Company, and that company provides services to Harmony Investments. My husband does not personally provide services to Harmony Investments. 3. The City Attorney's Office has advised me that although I have a personal interest in this transaction, because my husband does not personally provide services to Harmony Investments, the Act provides that I may participate without restriction in Council's discussion of, and vote on, the application, upon disclosure of this interest. 4. I wish to disclose the above facts and declare that I am able to participate in the transaction fairly, objectively, and in the public interest. 1304 WREN PLACE, VIRGINIA BEACH, VA 23451 "11 Mrs. Ruth Hodges Fraser -2- March 24, 2009 Re: Disclosure Pursuant to Conflict of Interests Act S 2.2-3115 (H) Accordingly, I respectfully request that you record this declaration in the official records of City Council. Thank you for your assistance and cooperation in this matter. Sincerely, ~~ Rosemary A. Wilson Councilmember RAW /RRI I1II1 - 80 - Item V. O. ADJOURNMENT ITEM # 58669 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 7:39 P.M. Q~__dL~~~_ Beverly~. Hooks, CMC Chief Deputy City Clerk William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia March 24, 2009 III - 80 - Item V. O. ADJOURNMENT ITEM # 58669 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 7:39 P.M. (J~_tl!_~~~ Beverly 0. Hooks, CMC Chief Deputy City Clerk uth Hodges Fraser, MMC City Clerk William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia March 24, 2009