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MAY 24, 2011 AGENDACITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOK W/LL/AM D. SESSOMS, JR., At-Large VICE. MAYOR LOUI,ti R. JONES, Bayride -District d R/T A SWEET BELL%ITO, At-Large G/,/iNN R. DAMS, Rase Hall -District 3 WILLLAM R. DeSTEPH, At-Large HARRY L'. D/BZEL, Kempsville -District 2 ROBERT M. DYER, Centerville -District I BARBARA M HENLEY, Princess Anne -District 7 JOHN F,. UHR/N, Beach -District 6 ROSEMARY WILSON, At-Large JAMF,S L. WOOD, Lvnnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER -JAMES K. SPORE, CITY ATTORNEY -MARK D. STILES C!I'Y ASSESSOR - JERALD D. BANAGAN C/TYAUD/IOR- /.YNDONS. REM/AS C/TY CLERK RUTH HODGES ERASER, MMC CITY COUNCIL AGENDA 24 MAY 2011 I. CITY MANAGER'S BRIEFING -Conference Room- A. ROSEMONT STRATEGIC GROWTH AREA (SGA) Paul Ostergaard, Urban Design Associates B. VIRGINIA BEACH CITY PUBLIC SCHOOLS Conditional Use Permit for On-Site Sewage Treatment Facility "Living Machine" Tony Arnold, Director -Schools Facilities, Planning and Construction II. CITY COUNCIL COMMENTS III. CITY COUNCIL AGENDA REVIEW IV. INFORMAL SESSION -Conference Room - A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGIIv7A 23456-8005 PHONE: (757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com 3:30PM S:OOPM C. RECESS TO CLOSED SESSION V. FORMAL SESSION -City Council Chamber - 6:00 PM A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Randy D. Singer Pastor Trinity 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. SPECIAL SESSION AT GREEN RUN HIGH SCHOOL Apri121, 2011 PUBLIC HEARING -RESOURCE MANAGEMENT PLAN 2. INFORMAL and FORMAL SESSIONS May 10, 2011 G. FORMAL SESSION AGENDA H. PUBLIC HEARINGS 1. LEASES OF CITY-OWNED PROPERTY a. 2656 Lishelle Place b. 3`d Street and Atlantic Avenue 2. SALE OF EXCESS PROPERTY 1732 Virginia Beach Boulevard 3. BEACH GARDEN PARK - KILBOURNE COURT/HOLLY ROAD Right-of--Way Improvements Acquisition by Agreement or Condemnation 4. INSTALLMENT PURCHASE AGREEMENT Acquisition of Agricultural Land Preservation (ARP) Easements 1646 Princess Anne Road CONSENT AGENDA ORDINANCES/RESOLUTIONS 1. Ordinances re the City Code: a. ADD Sections 5-103 and 5-104 re the creation of the Animal Control Unit Advisory Board (requested by Councilman DeSteph) b. AMEND Sections 2-268, Articles I and III of Chapter 37 of the City Code re the cross-connection control, backflow prevention and the duties of the Director of Public Utilities; and, ADOPT the Cross-Connection Control and Backflow Prevention Policy c. REPEAL Sections 6-110 and 21-251and AMEND Sections 23-63 through 23-72 re noise re Beaches, Boats, Waterways, Motor Vehicle and Traffic Code d. AMEND Sections 28-65, 28-66, 28-70, 28-76, 28-78, 28-79 and 28-81 and ADD Sections 28-70-1 and 28-81.1 re the public sewer system and civil penalties for violations of certain ordinances governing the use of the public sewer system 2. Ordinance to provide the tax levy on real estate for properties in the Virginia Landmarks Register for FY 2012. (requested by Council Lady Wilson and Councilman Davis) 3. Ordinances to AUTHORIZE: acquisition of property for rights-of--way and permanent drainage easements, either by agreement or condemnation, for BEACH GARDEN PARK - KILBOURNE COURT/HOLLY ROAD right-of--way improvements b. acquisition of an Agriculture Land Preservation (ARP) easement to James L. and Phyllis N. Styron at 5341 Morris Neck Road. (District 7 -Princess Anne) c. the City Manager to enter into a Lease for Summer 2011 and the next four Summers with Dolphin Run Condominium Association, Inc. at 3RD Street and Atlantic Avenue re an overflow parking lot for registered guests (District 6 -Beach) d. the City Manager to EXECUTE a Lease with BMZ USA, INC. re commercial property at 2656 Lishelle Place (District 6 -Beach) 4. Ordinance to DECLARE EXCESS City property at 1732 Virginia Beach Boulevard and AUTHORIZE the City Manager to sell the property to Sakkadas Enterprises, Inc. 5. Resolution re an AWARD $708,746 in Economic Development Investment Program (EDIP) funds to BMZ USA, Inc. by the Development Authority re expenses associated with retrofitting the building at 2656 Lishelle Place (District 6 -Beach) 6. Resolution to ESTABLISH a Process Improvement Steering Committee to gather information re the broad range of issues to improve government processes and communication with citizens (requested by the Mayor, Vice Mayor and Council Members Bellitto, Davis, DeSteph, Diezel, Dyer, Uhrin, Wilson and Wood) 7. Ordinance to REDEFINE the HNP Field Automation Analysis, including the purchase of computer equipment and related peripheral equipment re Code enforcement in Housing and Neighborhood Preservation 8. Ordinances to ACCEPT and APPROPRIATE: a. $150,000 grant funds re Pedestrian System Improvements - Phase I to reimburse the City for a portion of construction costs for Providence Road overpass sidewalk b. $208,695 in state grant funds to reimburse the City for land acquisition adjacent to the Adam Thoroughgood House c. $43,671 from the United States Homeland Security to the Fire Department's FY 2010-11 Operating Budget re Virginia Task Force 2 Urban Search and Rescue, including canine d. $15,000 from the United States Homeland Security through the Virginia Department of Emergency Management to the Police Department's FY 2010-11 Operating Budget re terrorism detection e. $100,000 as a state grant re funding a portion of the design and construction of Marshview Trail £ $61,110 from Hazard Mitigation grant funds re Auxiliary Power program for sewer pump stations -Phase III g. $4,584,053 from the School Instructional Technology Fund to purchase electronic white boards for secondary schools and replace outdated classroom equipment 9. Ordinance to TRANSFER $230,754 from Reserve for Contingencies to Mass Transit Operations FY 2010-11 Operating Budget re a true-up reimbursement to Hampton Roads Transit (HRT) K. PLANNING 1. Variance to §4.4(b) of the Subdivision Zoning Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for CHARLES PAYNE re the development of single-family dwellings at 800 Terrace Avenue. DISTRICT 6 -BEACH 2. Application of VIRGINIA BEACH CITY PUBLIC SCHOOLS/THE SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH for a Conditional Use Permit re a private sewage treatment system known as the "Living" Machine" at West Neck Road. DISTRICT 7 -PRINCESS ANNE 3. Application of AGAPAE INTERNATIONAL CHURCH for a Modification of Conditional Use Permit (Condition #6) (approved by City Council on December 3, 1996 and modified February 12, 2008) to allow one modular unit to be on-site for an additional five (5) years at 2641 Princess Anne Road. DISTRICT 7 -PRINCESS ANNE 4. Application of WHITAKER PLACE, LLC/JACQUELINE BULLOCK GLASPIE/ MONICA JOHNSON SIMONS for a Change of Zoning District Classification from R-7.5 Residential District to Conditional PD-H2 (A-12) Planned Unit Development Overlay and Apartment District at 467 and 473 North Witchduck Road. DISTRICT 4 - BAYSIDE 5. BREATHWAITE PLACE, LLC: (DISTRICT 2 - KEMPSVILLE) a. Application for a Change of Zoning District Classification from Conditional A-18 Apartment to PDH-2 (A-18) at Newtown Road and Rock Creek Lane. b. Ordinance to EXTEND compliance re closure of a portion of Newtown Road and Rock Creek Lane (approved by City Council on May 25, 2010) L. APPOINTMENTS HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION MINORITY BUSINESS COUNCIL TOWING ADVISORY BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT ~*~~***~ If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 NATIONAL NIGHT OUT OCTOBER 4, 2011 Agenda 05/24/201 ] gw www vb og v.com CITY MANAGER'S BRIEFING -Conference Room- 3:30PM A. ROSEMONT STRATEGIC GROWTH AREA (SGA) Paul Ostergaard, Urban Design Associates B. VIRGINIA BEACH CITY PUBLIC SCHOOLS Conditional Use Permit for On-Site Sewage Treatment Facility "Living Machine" Tony Arnold, Director -Schools Facilities, Planning and Construction II. CITY COUNCIL COMMENTS III. CITY COUNCIL AGENDA REVIEW IV. INFORMAL SESSION -Conference Room - S:OOPM: A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION I V. FORMAL SESSION - City Council Chamber - 6:00 PM A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Randy D. Singer Pastor Trinity 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. SPECIAL SESSION AT GREEN RUN HIGH SCHOOL April 21, 2011 PUBLIC HEARING -RESOURCE MANAGEMENT PLAN 2. INFORMAL and FORMAL SESSIONS May 10, 2011 G. FORMAL SESSION AGENDA ~p~n1~t#inn CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded here 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, DE IT RESOLVED: 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. H. PUBLIC HEARINGS LEASES OF CITY-OWNED PROPERTY a. 2656 Lishelle Place b. 3`d Street and Atlantic Avenue 2. SALE OF EXCESS PROPERTY 1732 Virginia Beach Boulevard 3. BEACH GARDEN PARK - KILBOURNE COURT/HOLLY ROAD Right-of--Way Improvements Acquisition by Agreement or Condemnation 4. INSTALLMENT PURCHASE AGREEMENT Acquisition of Agricultural Land Preservation (ARP) Easements 1646 Princess Anne Road ~~-~:; ~i: (U;.~ i.. ~,v--, PUBLIC HEARING I FaSE OF CITY PROPERTY The Virginia Beach City Council will hold a PUBLIC HEARING on the proposed lease of 2656 Lishelle Place (GPIN 1496-544149), Tuesday, May 24, 2011 at 6:00 pm in the City Council Chamber of the City Hall Building (Building #1) at the Virginia Beach Municipal Center, Virginia Beach, Virginia. The purpose of this Hearing will be to obtain public input to determine whether the property should be leased. If you are physicalty disabled or visually Impaired and need assistance at this meeting, please call the CITY Cl-ERK'S OFFICE at 757- 385~303; hearing impaired, call 711 (Virginia Relay-Telephone Device for the Deaf). Any questions concerning this matter should be directed to the Office of Real Estate, Building #2, Room 392, at the Virginia Beach Municipal Center, (757) 385-4161. Ruth Hodges Fraser N]M~ City Clerk ^ ~~/~" Beacori: May 15, 2011 J. PUBLIC HEARING LEASE OF CITY PROPERTY The Virginia Beach City Council will hold a PUBLIC HEARING on the proposed leasing of City-owned property on Tuesday May 24, 2011 at 6:00 p.m. in the Council Chamber of the City Hall Building (Building #1) at the Virginia Beach Municipal Center, Virginia Beach, Virginia. The purpose of this Hearing will be to obtain public comment on the City's proposal to lease the following parcel: Approximately 0.09 acres of land located at 3'" Street and Atlantic Avenue(GPIN: 2427-32-0138). If you are physically disabled or visually (mpaired and need assistance at this meeting, please call the CITY CLERK'S OFFlCE at 385• 4303; Hearing impaired, call TDD 711 (TDD -Telephone Device for the Deaf). Any questions concerning this matter should be directed to the Department of Public Works - Facilities Management Office, Room 228, Building 18, at the Virginia Beach Municipal Center. The Faciltties Management Office telephone number is (757) 385-5659. Ruth Hodges Fraser, MMC City Clerk Beacon May 15, 2011 22428126 PUBLIC HEARING SALE OF EXCESS CITY PROPERTY The Virginia Beach City Council will hold a PUBLIC HEARING on the proposed sale of 1732 Virginia Beach Boulevard (GPIN 2407-75- 6918), Tuesday, May 24, 2011 at 6:00 pm in the City Council Chamber of the City Hall Building (Building #1) at the Virginia Beach Municipal Center, Virginia Beach, Virginia. The purpose of this Hearing will be to obtain public input to determine whether the property should be declared "Excess of the City's needs". If you are physically disabled or visually Impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 757- 3854303; hearing impaired, call 711 (Virginia Relay-Telephone Device for the Deaf). Any questions concerning this matter should be directed to the Office of Real Estate, Building #2, Room 392, at the Virginia Beach Municipal Center, (757) 385-4161. Ruth Hodges Fr C City Clerk Beacon: May 15, 2011 j;:A' -F+'jl5 .. 3tc PUBLIC HEARING Ac`oIIISITION BY AGREEMENT OR CONDEMNATION The Virginia Beach City Council. will hold a PUBLIC HEARING on the proposed acquisition, by agreement or condemnation, of property and easements necessary for the BEACH GARDEN PARK - KILBOURNE COURT / HOLLY ROAD RIGHT-0F-WAY IMPROVEMENTS PROJECT, CIP 7- 049, Tuesday May 24, 2011 at 6:00 p.m., in the Council Chamber of the City Hall Building (Building #1) at the Virginia Beach Municipal Center, Virginia Beach, Virginia. The plans for the project are entitled: "BEACH GARDEN PARK - KILBOURNE COURT / HOLLY ROAD RIGHT-0F-WAY IMPROVEMENTS CIP 7-049" and are on file in the Public Works Department, Engineering Division, Building #2 at the Municipal Center. The purpose of this Hearing will be to obtain public input regarding authorizing condemnation, if necessary, for this project If you are physically d'~sabled or visually Impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 757- 3854303; Hearing impaired, call 711 (Virginia Relay - Telephone Device for the Deaf). Any questions concerning this hearing should be directed to the Office Real Estate, Building #2, Room 392, at the Virginia Beach Municipal Center, (757) 385-4161. Ruth Hodges Fraser, MMC City Clerk Beacon: May 15, 2011 22439065 .~~ NOTICE OF PUBLIC HEARING ON THE EXECUTION AND DELIVERY OF INSTALLMENT PURCHASE AGREEMENT FOR THE ACQUISITION OF DEVELOPMENT RIGHTS ON CERTAIN PROPERTY BY THE CITY OF VIRGINIA BEACH, VIRGINIA Notice is hereby given that the City Council of the City of Virginia Beach, Virginia, will hold a Public Hearingwith respect to the execution and delivery of Installment Purchase Agreement for the acquisition of an agricultural land preservation easement with (espect to 47.21 acres of land located at 5341 Morris Neck Road, in the City of Virginia Beach, Virginia, pursuant to Ordinance No. 95-2319, as amended, known as the Agricultural Lands Preservation Ordinance, which establishes an agricultural reserve program for the southern portion of the City designated to (a) promote and encourage the preservation of farmland, (b) preserve open spaces and the area's coral character, (c) conserve and protect environmentally sensitive resources, (d) reduce and defer the need for major infrastructure improvements and the expenditure of public funds for such improvements, and (e) assistin shapingthe character, direction and timing of community development Such easement will be purchased pursuant to an Installment Pu rchase Agreement for an estimated maximum purchase price of $434,332. The City's obligation to pay the purchase price under the Installment Purchase Agreement is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City will be irrevocably pledged to the punctual payment of the purchase price and the interest on the unpaid principal balance of the purchase price as and when the same respectively become due and payable. The Public Hearing, which may be continued or adjourned, will be held by the City Council on May 24, 2011, at 6:00 p.m. in the City Council Chamber located on the 2nd floor of the City Hall Building, 2401 Courthouse Drive, Virginia Beach, Virginia. Any person interested in this matter may appear and be heard. Ruth Hodges Fraser, MMC City Clerk Beacon May 8 & 15, 2011 22426552 I. CONSENT AGENDA ORDINANCES/RESOLUTIONS 1. Ordinances re the City Code: a. ADD Sections 5-103 and 5-104 re the creation of the Animal Control Unit Advisory Board (requested by Councilman DeSteph) b. AMEND Sections 2-268, Articles I and III of Chapter 37 of the City Code re the cross-connection control, backflow prevention and the duties of the Director of Public Utilities; and, ADOPT the Cross-Connection Control and Backflow Prevention Policy c. REPEAL Sections 6-110 and 21-251and AMEND Sections 23-63 through 23-72 re noise re Beaches, Boats, Waterways, Motor Vehicle and Traffic Code d. AMEND Sections 28-65, 28-66, 28-70, 28-76, 28-78, 28-79 and 28-81 and ADD Sections 28-70-1 and 28-81.1 re the public sewer system and civil penalties for violations of certain ordinances governing the use of the public sewer system 2. Ordinance to provide the tax levy on real estate for properties in the Virginia Landmarks Register for FY 2012. (requested by Council Lady Wilson and Councilman Davis) 3. Ordinances to AUTHORIZE: a. acquisition of property for rights-of--way and permanent drainage easements, either by agreement or condemnation, for BEACH GARDEN PARK - KILBOURNE COURT/HOLLY ROAD right-of--way improvements b. acquisition of an Agriculture Land Preservation (ARP) easement to James L. and Phyllis N. Styron at 5341 Morris Neck Road. (District 7 -Princess Anne) c. the City Manager to enter into a Lease for Summer 2011 and the next four Summers with Dolphin Run Condominium Association, Inc. at 3~ Street and Atlantic Avenue re an overflow parking lot for registered guests (District 6 -Beach) d. the City Manager to EXECUTE a Lease with BMZ USA, INC. re commercial property at 2656 Lishelle Place (District 6 -Beach) 4. Ordinance to DECLARE EXCESS City property at 1732 Virginia Beach Boulevard and AUTHORIZE the City Manager to sell the property to Sakkadas Enterprises, Inc. 5. Resolution re an AWARD $708,746 in Economic Development Investment Program (EDIP) funds to BMZ USA, Inc. by the Development Authority re expenses associated with retrofitting the building at 2656 Lishelle Place (District 6 -Beach) 6. Resolution to ESTABLISH a Process Improvement Steering Committee to gather information re the broad range of issues to improve government processes and communication with citizens (requested by the Mayor, Vice Mayor and Council Members Bellitto, Davis, DeSteph, Diezel, Dyer, Uhrin, Wilson and Wood) 7. Ordinance to REDEFINE the HNP Field Automation Analysis, including the purchase of computer equipment and related peripheral equipment re Code enforcement in Housing and Neighborhood Preservation 8. Ordinances to ACCEPT and APPROPRIATE: a. $150,000 grant funds re Pedestrian System Improvements - Phase I to reimburse the City for a portion of construction costs for Providence Road overpass sidewalk b. $208,695 in state grant funds to reimburse the City for land acquisition adjacent to they Adam Thoroughgood House c. $43,671 from the United States Homeland Security to the Fire Department's FY 2010-11 Operating Budget re Virginia Task Force 2 Urban Search and Rescue, including canine d. $15,000 from the United States Homeland Security through the Virginia Department of Emergency Management to the Police Department's FY 2010-11 Operating Budget re terrorism detection $100,000 as a state grant re funding a portion of the design and construction of Marshview Trail f. $61,110 from Hazard Mitigation grant funds re Auxiliary Power program for sewer pump stations -Phase III g. $4,584,053 from the School Instructional Technology Fund to purchase electronic white boards for secondary schools and replace outdated classroom equipment 9. Ordinance to TRANSFER $230,754 from Reserve for Contingencies to Mass Transit Operations FY 2010-11 Operating Budget re a true-up reimbursement to Hampton Roads Transit (HRT) ~`~E^~`. rr .r ~ ~ ~~', z ., .., .~,.~.. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Add Sections 5-103 and 5-104 to the City Code Pertaining to the Creation of the Animal Control Unit Advisory Board MEETING DATE: May 24, 2011 ^ Background: The Animal Control Unit of the Police Department is comprised of two branches: enforcement and sheltering. The mission of the Unit is to balance the health, safety and welfare needs of the people and animals in our City. This ordinance would create a City Council-appointed Animal Control Unit Advisory Board to advise City Council on matters related to animal care and control activities. ^ Considerations: The board will consist of two licensed veterinarians; a member of the Friends of Animal Control; an employee, volunteer or board member of the Virginia Beach Society for the Prevention of Cruelty to Animals (SPCA); an employee of the Virginia Beach Health Departrrlent; a member of City Council; and a Virginia Beach citizen who is not a member of any of the groups described above. The Animal Care and Adoption Center Shelter Manager and the Animal Control Enforcement Unit Lieutenant will serve as non-voting, ex officio members. ^ Public Information: Public information will be provided through the normal Council agenda process. ^ Attachments: Ordinance. Requested by Councilmember DeSteph REQUESTED BY COUNCILMEMBER DESTEPH 1 AN ORDINANCE TO ADD SECTIONS 5-103 AND 5-104 TO 2 THE CITY CODE PERTAINING TO THE CREATION OF 3 THE ANIMAL CONTROL UNIT ADVISORY BOARD 4 5 Sections Added: City Code §§ 5-103 and 5-104 6 7 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 8 VIRGINIA: 9 10 That Sections 5-103 and 5-104 of the City Code are hereby added to read as 11 follows: 12 13 Sec. 5-103. Animal Control Unit Advisory Board. 14 15 (a) Creation of board. There is hereby created the Animal Control Unit Advisory 16 Board consisting of seven (7) voting members and two (2) non-voting members. 17 18 (b) Terms. The voting members shall be appointed by the City Council for a 19 term of four years. Any vacancy on the board shall be filled by the council for a duration 20 equal to the unexpired term. 21 22 (c) Membership. The membership shall consist of two (2) licensed 23 veterinarians, one (1) member of the Friends of Animal Control, one (1) employee, 24 volunteer or board member of the Virginia Beach Society for the Prevention of Cruelty to 25 Animals (SPCA), one (1) employee of the Virginia Beach Health Department, one (1) 26 member of the Virginia Beach City Council, and one (1) Virginia Beach citizen who is 27 not a member of any group described above. With the exception of the Health 28 Department representative, the voting members shall live and work in the City of 29 Virginia Beach. 30 31 The Animal Care and Adoption Center Shelter Manager and the Animal Control 32 Enforcement Unit Lieutenant shall be non-voting, ex officio members. 33 34 (d) The Animal Control Unit Advisory Board shall elect from its membership a 35 chairman, vice-chairman and secretary. A majority of the board shall constitute a 36 quorum for the transaction of business. The board may adopt rules for the conduct of 37 its business. 38 Sec.5-104. Duties. 39 40 The Animal Control Unit Advisory Board shall advise City Council with regard to 41 matters relating to animal care and control activities, as well as the conduct 42 improvement and support of the Virginia Beach Animal Control Unit to include: 43 44 (1) Advice regarding general animal control issues; 45 (2) Advice regarding the status of rabies in the city and the public health aspect 46 of rabies; 47 (3) Recommendations regarding animal licensingprocedures and fees; 48 (4) Advice regarding animal shelter operations in the city; 49 (5) Recommendations regarding field health operations; and 50 (6) Consultations with city staff and public health experts regarding animal 51 issues, culminating with a report of such findings and recommendations to the 52 city manager and City Council. Adopted by the City Council of the City of Virginia Beach, Virginia, this day of , 2011. APPROVED AS TO LEGAL SUFFICIENCY: City Atto ey's O ~ e CA 11784 R-2 May 6, 2011 ~~ ^.l HF9r~i - ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Ordinance to Amend the City Code re Cross-Connection Control and Backflow Prevention MEETING DATE: May 24, 2011 ^ Background: The City Council has directed that the responsibility for administration of the City's Cross Connection Control and Backflow Prevention program be transferred to the Department of Public Utilities. The transfer necessitates that amendments to the City Code be adopted and that across-Connection Control and Backflow Prevention Policy setting forth the responsibilities of the various stakeholders (City, consumers, backflow prevention device workers) also be adopted. ^ Considerations: The proposed ordinance amends the City Code to assign the primary responsibility for the administration and enforcement of the City's Cross- Connection Control and Backflow Prevention program to the Department of Public Utilities. The amendments also streamline and update the current City Code provisions, which are primarily located in Chapter 37 of the City Code. The proposed ordinance also adopts by reference a new Cross Connection Control and Backflow Prevention Policy that reflects the changes needed in order for the Department of Public Utilities to assume primary management of the Cross- Connection Control and Backflow Prevention program in a manner consistent with the Virginia Uniform Statewide Building Code and the Virginia Department of Health's Waterworks Regulations. ^ Public Information: Public information will be provided through the normal Council agenda process. ^ Recommendations: It is recommended that the City Code Changes and the Policy be approved as written. ^ Attachments: Proposed ordinance; Cross-Connection Control and Backflow Prevention Policy, May 2011. Recommended Action: Approval Submitting Department/Agency: Public Utilities ~ ~_ City Manager. S k 1 AN ORDINANCE TO AMEND SECTION 2-268 AND 2 ARTICLES I AND III OF CHAPTER 37 OF THE CITY 3 CODE, PERTAINING TO CROSS-CONNECTION 4 CONTROL AND BACKFLOW PREVENTION AND DUTIES 5 OF THE DIRECTOR OF PUBLIC UTILITIES, AND 6 ADOPTING THE CROSS-CONNECTION CONTROL AND 7 BACKFLOW PREVENTION POLICY 8 Sections Amended: City Code Sections 2-268, 37-1, 37- 9 17.1, 37-68, 37-69, 37-70, 37-71 10 Section Added: City Code Section 37-72.1 11 Sections Repealed: City Code Sections 37-74 though 37-86 12 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 13 VIRGINIA: 14 That Sections 2-268, 37-1, 37-17.1, 37-68, 37-69, 37-70, 37-71 of the City Code 15 are hereby amended, Section 37-72,1 of the City Code is hereby added, and Sections 16 37-74 through 37-86 of the City Code are hereby repealed, to read as follows: 17 18 CHAPTER 2. ADMINISTRATION 19 .... 20 ARTICLE VIII. DEPARTMENT OF PUBLIC WORKS 21 .... 22 Sec. 2-268. Composition, functions, etc., of engineering division. 23 (a) The engineering division of the department of public works, subject to the 24 supervision and control of the director of public works, shall be headed by the city 25 engineer, who shall be a civil engineer, shall have a thorough knowledge of municipal 26 engineering and shall be charged with maintaining official technical records of all 27 streets, highways and other public properties, ~ ~ ; 28 providing engineering plans, drawings, specifications and supervision for all 29 construction and maintenance work where required; providing or reviewing all technical 30 information for contracts submitted for public works ' ' 'es operations or 31 construction; and providing engineering services and supervision to the city as may be 32 prescribed. 33 .... 34 35 36 The amendments reflect the longstanding practice of the City, in which the City's Public 37 Utilities Department, rather than the City Engineer, is responsible for public utility-related duties. 38 .... 39 CHAPTER 37. WATER SUPPLY 40 ARTICLE I. IN GENERAL 41 Sec. 37-1. Definitions. 42 Consumer.' Any person to whom water from the city water system is supplied 43 directly, either as owner, agent or tenant of the premises to which water service is 44 provided ie~ through a city meter, and who is table-to--t#e responsible for the 45 payment of charges for the consumption of water so supplied. 46 Director. The director of public utilities or his designee. 47 COMMENT 48 The first definition amendment is stylistic and has no substantive effect; the second defines the 49 term "director" to mean the Director of Public Utilities or his designee. 50 .... 51 Sec. 37-17.1. Ultra low-flush toilets; rebates. 52 .... 53 (d) The following requirements shall be met in order for any person to receive 54 a rebate: 55 (1) A plumbing permit has been obtained from the permits and inspections 56 division of the department of planning prior to the removal of 57 the existing toilet and the installation of the ultra low-flush toilet; 58 (2) The permits and inspections division of the department of +s--weds 59 planning has verified that all applicable requirements of law pertaining to 60 such installation have been met and that the replacement toilet is 61 designed to use no more than one and six-tenth (1.6) gallons of water per 62 flush; 63 2 64 65 COMMENT 66 The amendments reflect that the City's Permits and Inspections Division is within the 67 Planning, rather than Public Works, Department. They do not pertain to backflow prevention and 68 cross-connection control. 69 .... 70 71 ARTICLE III. CROSS-CONNECTION CONTROL AND BACKFLOW PREVENTION 72 Sec.37-68. Definitions. 73 For the purposes of this chapter, the following words and phrases shall have the 74 meanings respectively ascribed to them by this section: 75 .... 76 77 Director: The director of public werlES utilities or his des+g~ate~ 78 age+~s designee. 79 80 .... 81 82 COMMENT 83 The amendments change the definition of "director" from the Director of Public Works to 84 the Director of Public Utilities to reflect that the Public Utilities Department will henceforth be 85 responsible for administration of the cross-connection controUbackflow prevention program. 86 87 Sec. 37-69. Objectives of article. 88 89 The objectives of this article are to: 90 91 (1) Protect the 92 ,public health, safety, and welfare through a 93 cross-connection control and backflow prevention program intended 94 to prevent the potential or actual occurrence where a backflow, 95 backpressure condition, or cross connection within piping or other 96 op rtions of a e~ consumers' mate op table water systems; 97 could allow the entry of contaminants or pollutants , 3 98 , 99 into the public water system..-i 100 101 (2) Eliminate or control existing cross-connections, actual or potential, 102 at each water outlet from the consumer's service line-i 103 104 (3) Provide a continuing inspection program of cross-connection 105 control which will systematically and effectively control all actual or 106 potential cross-connections which may be installed in the future..-i 107 and 108 109 (4) Comply with all applicable regulations of the Commonwealth of 110 Virginia pertaining to cross-connection control and backflow 111 prevention. 112 113 COMMENT 114 The amendments refine the stated objectives of the cross-connection control/backflow 115 prevention program. 116 117 Sec. 37-70. ~Fieta~isws ~e Prohibited connections. 118 119 120 121 122 123 124 125 , 126 127 128 (a) No person shall install or maintain a water service connection to anv 129 premises where cross-connections to a waterworks or a consumer's water system may 130 exist, unless such cross-connections are in compliance with this article and approved by 131 the director in accordance with the written policies of the department of public utilities. 132 133 (k~_ No_person shall install or maintain anv connection that may allow water 134 from an auxiliary water system to enter a waterworks or consumer's water system, 135 unless the auxiliary water system, the method of connection and the use of such system 4 136 are in compliance with this article and approved by the director in accordance with the 137 written policies of the department of public utilities. 138 139 COMMENT 140 Subsections (a) and (b) are substantially identical to the current language of City Code 141 Section 37-75, which is repealed by this ordinance. The original language is deleted from this 142 section and is moved, in revised form, to new Section 37-72.1, entitled "Violations." 143 144 Sec. 37-71. 145 Maintenance and inspection of backflow prevention devices. 146 {a} , 147 ~ ~ , 148 ^•r^, .v, + ., o^-Th~; -R,~,;: e~ere~e-e~-tfa-is~-,-moo ;s;ba~,+.~~e-s' Fe 149 150 151 . 152 153 ~ T; r° ^^r~~„mor~., roe•„nr~eihili+v ~+nr+~ ~+ +ho r~nin+ of ~oli~iont frnrr+ iho r~, ~hli^ ...,.....,.~..~~ ..~.,~................~ - r-.... - --~ ~ - x----- 154 .The consumer, at his own 155 expense, shall install, operate, test and maintain approved backflow prevention devices, 156 as directed by the department of public wer~s utilities. It shall be the duty of the 157 consumer to have such devices inspected at least annually orl .Y,^ro „++o., 158 RTt#o-°,,~i„°+~~e~-:rR°~ ° c~~~s~~~~~estFen•s are-ied+sated at such greater 159 frequency as the director may deem necessary. T#ese Such inspections wilt shall be 160 ~-+ade performed by a certified backflow prevention device worker +o°+er of +ho ^:+„ or other 161 qualified person approved by the director. The consumer shall maintain accurate 162 records of tests and repairs made to backflow prevention devices and provide the city 163 director with copies of such records. The records shall be on forms approved or 164 provided by the s+t~-director. In the event of accidental pollution or contamination of the 165 public or consumer's potable water system, due to backflow on or from the consumer's 166 premises, the owner shall promptly take steps to confine further spread of the pollution 167 of contamination within the consumer's premises, and shall immediately notify the s+ty 168 director of the hazardous condition. 169 170 5 171 COMMENT 172 173 The amendments delete subsection (a), the subject of which is covered in the Department of 174 Public Utilities' Cross-Connection Control and Backflow Prevention Policy, and make stylistic 175 changes in the former subsection (b). 176 177 Sec. 37-72. Inspections; notice to correct defects. 178 179 (a) The director shall have the right of entry into any building, during 180 reasonable hours, for the purpose of making inspections of the water distribution system 181 installed in such building or premise. The owner or occupant may accompany the 182 inspector while this inspection is being made. 183 184 {#} , 185 ~ , 186 , 187 , 188 189 190 {s~} ~ All new construction plans and specifications for commercial 191 buildings shall be made available to the director and building codes administrator to 192 determine the degree of hazard of possible cross-connections. 193 194 {~} ~ An on-site inspection of all existing buildings will be made to 195 determine the degree of hazard to the public a water system. If an unauthorized 196 cross-connection is found, either actual or potential, the director shall 197 198 , 199 200 , 201 , 202 203 proceed in accordance with the provisions of Section 37-72.1. 204 205 COMMENT 206 207 The amendments eliminate superfluous language and requires that new construction plans 208 for commercial buildings be provided to the Building Codes Administrator as well as the Director 209 of Public Utilities. 210 211 6 212 Sec. 37-72.1. Violations. 213 (a) Whenever the director determines that a violation of this article exists, 214 he shall cause a notice of violation to be provided to the consumer at the premises at 215 which the violation exists. Such notice may be mailed to the address of the 216 consumer shown on the records of the department of public utilities or personally 217 served upon the consumer. The notice shall be signed by the director, and may 218 require any or all of the following actions to be completed by a date certain, which 219 date shall, except in circumstances deemed by the director to constitute an imminent 220 and substantial endangerment to public health, be not less than fourteen (14) 221 calendar days from the date the notice was issued: (i) the +a~edaa~te cessation or 222 correction of the violation; (ii) the acquisition and installation of additional material, 223 equipment, supplies or personnel to ensure that the violation does not recur; (iii) the 224 submission of a certified plan to prevent future violations, which plan shall be 225 prepared by a professional engineer licensed to practice in the Commonwealth of 226 Virainia: or liv) any other corrective action deemed necessary for compliance with 227 this article. 228 (b) In the event the owner or occupant fails to comply with the terms of a 229 notice of violation, the director may cause water service to the premises to be 230 terminated. Where a violation constitutes an imminent and substantial 231 endangerment to public health, the director shall terminate water service. The cost 232 of a~ disconnection and reconnection shall be paid by the consumer prior to 233 restoration of water service to the premises. 234 (c) In addition to disconnection of water service as set forth in this section, 235 and not in lieu thereof, a violation of any of the provisions of this article shall be 236 punishable by a fine in an amount not exceeding Two Thousand, Five Hundred 237 Dollars ($2.500.00) or may be enjoined by a court of competent jurisdiction upon 238 application of the director, either or both 239 COMMENT 240 This section revises the provisions of Section 37-70, regarding violations. The criminal 241 penalties have been changed to allow a fine of up to $2,500, rather than the current penalty 242 (Class 1 misdemeanor) in order to conform to the maximum penalty provisions set forth in the 243 Virginia Uniform Statewide Building Code. In addition, a provision allowing the Director of 244 Public Utilities to seek an injunction has been added. The current provisions allowing 245 termination of water service have been maintained, as termination has been the most 246 efficacious means of securing compliance with the City's cross-connection control/backflow 247 prevention regulations. 7 248 249 Sec. 37-73. General design, installation and maintenance standards for potable 250 water supply system; Cross-Connection Control and Backflow Prevention Policy. 251 252 253 ' 254 , 255 256 257 258 , 259 260 ,' , 261 262 , 263 264 d~este~ 265 266 Potable water supply systems shall conform to the standards and specifications 267 of the Department of Public Utilities Cross-Connection Control and Backflow Prevention 268 Policy (May 2011), which Policy. including any future amendments thereto, is hereby 269 adopted and incorporated by reference into this article. In the event of a conflict 270 between the provisions of such Policy and applicable provisions of the Virginia Uniform 271 Statewide Building Code or Virginia Waterworks Regulations, the provisions of the 272 Building Code or Waterworks Regulations. as the case may be. shall apply. 273 274 COMMENT 275 This section is deleted from the City Code and will instead be included, with revisions, 276 in the Public Utilities Cross-Connection Control and Backflow Prevention Policy, which the 277 revised section also adopts by and provides for potential conflicts between the provisions of the 278 Policy and applicable State regulations. 279 280 VAri~~-, -,VT-TTIZ e~ZfTre~~7CfRTl~Q~1 IA\~/ Y1P~i reT ~Tr~v`TTVri7~e~le~~'1"1'T 281 (RESERVED). 282 283 284 285 TO RI C IAICCT: 286 8 ~~m .no .,f Ilovino Tn Ro I Iced '' ~h~l~ '~°~ ~ ~ ~~ ff f2SSk#f2 f@6~E+f@ ~26~E ~~ - ~ ~F266~Ff2 ~- ~se+~r~es~ie~s~~}es#-fie - - - 1 Co~~.~no _ ~nyvin e~~hc~In nnoc~ _ '~. Alnn4nvin _ ciihc}'+nno vz+v~aurrv~ - - -~i~m linos ~nrl _ i~rmrrhAvii2~S - - - - TC7LYTiri l-PILL V-G~7mTf c~ ~hc4nnno~ .7FITJLUTTGI.~. r' ~QVIi~'CYT-~'SG~~ rlironiFh. fn ~o~~.or\ t~~-~ 2~~11Fi3zE'F •a--cvix°JC~~in °~CTT°T aavcv~t°-~mc - - 9 ~~+n n~ 1. c i ~hc+•+nnne ~~ Y~ ~ - ~- -a~~C1~Ct~V vv ' - vv ' 7 c Y ~ ~~a~ein c~nrinLlnr ~~ ~/ Y~ 7'C - ~/ Y~ I~CttO n~nCt~ ~icnrl ~c hno+ ovnh~nnorc in _ ~Imivn'~i Ja~ nnoe - _ ~~// 7~' 7 In nnn+nvin ,,,, ~~ ~~ ~~..,,,,,,++ rrvnicmv ~tfit~J^t~~-- Cl~~~h ...Lin - - ~~ _ _ - ~- -i . T r--r nrc7Fgn ~ ~ r~rn~Ui~ Y~ - - ~ i re c ~{ ~~~ t 6~~+~ ~+~ ' 6F~$s - - - i a '1 Tnvin ~~~hc+nnnnc - vv 7'F- ~di~t~F}'Eie~ v - Y~ - ~ Y~ Y~- 10 287 /h\ The ~n ho ~~o n~ ~ n~~irln In ~n 288 ~--TTY-a~eue-~a~le-~-~-~~sed~~a~~o~ e~~ 289 , 290 ~~ea~- 291 COMMENT 292 This section is deleted from the City Code. 293 294 (Reserved). 295 296 297 nromi~oo ~eihoro nr ~ 298 299 300 301 , '302 '~vilin~g~-=~g~~a 4-~ ~mo~h~rl ref n~nn~~inn ~n~ 4he ~ ~c~ .~~~$,~,~y~,~, 303 nmm~li~nno ~~ii4h 4hie ~r+inlo 304 COMMENT 305 The section is deleted, as the substance has been incorporated into Section 37-70. 306 307 308 s~e~ (Reserved). 309 310 311 , 312 313 s~s~e~s- 314 COMMENT 315 The section is deleted, as the provisions have been incorporated into Section 37-70. 316 11 317 ~Sesr-~-T'r-P~~est+~e-~e~is~es-#~; f°~rv~e~s (Reserved). 318 319 320 , 321 , 322 , 323 324 325 , 326 , 327 328 329 330 ( , 331 , 332 , 333 334 335 336 337 338 , 339 , 340 , 341 , 342 343 344 345 ¢~--~ir~~Te~.~- "°~~~es~t -ee~es~ie~s~e -=~ ,•,°+eww-~srlFS-~„a 346 , 347 ,' 348 349 350 ~F~ Ciro c~ic+o h~~iin rl' + nn +ho n+ Frn rte, h~~ilrlir. rrc Try--rn~~y~rrcCX}S~uvrrr~-crl CG6~wi-11~~6~F6 F}S-~B-~rrc=inxc2PVV~6F~f$ .~~ 351 ' 352 353 354 355 , 12 356 , 357 358 359 COMMENT 360 This section is deleted from the City Code. 361 362 (Reserved). 363 364 Civfi ~r~ ir.lo+n r~r .n hi~ ~..+I~ ~,e,~~~~nhm +c ~~ihinh m~~i nnr~e+i+~~+o ~ -,~cca,c-rrn cc~--ar-=vurv ~crcr urn,,,,eFlr~, 365 ~ , 366 367 hc+ ~i~hio Civ+i~roc~ .iii+h in+anrol ~i~n~~~im hro~Lor~ m~n~~f~rfi~rorJ ~c ~ ~~ni+ m~~~ ho 368 369 370 COMMENT 371 This section is deleted from the City Code. 372 373 374 (Reserved) 375 376 , 377 378 iho /+i~nhnrno eirlo nof~+h7~ I~e+ ~i~hio Dlen ~ +nvin nh ? n~vrrtef(? e 379 , 380 381 382 383 COMMENT 384 This section is deleted from the City Code. 385 386 387 (Reserved). 388 389 , 390 , 391 392 393 li.,o +„ +ho hi iilr7i.,,, 13 394 COMMENT 395 This section is deleted from the City Code. 396 397 (Reserved). 398 399 400 nrovonfor in [•+.~Ilo.+ nn +ho main nn+.+hlo ~~i.++or c•oniino linos. coniinn e~~nh nl.+n+_ 401 COMMENT 402 This section is deleted from the City Code. 403 404 (Reserved). 405 406 407 , 408 409 #as+l+~~ 410 COMMENT 41 1 This section is deleted from the City Code. 412 413 (Reserved). 414 415 416 +eel-~a~~e~-seeeest+s~s--w~+er~~+~-~a~eane~s ~--Re~ ~es~e~-mss 417 418 419 ~hTa)-DTess~e~s~~~-beakers +e,.+,,,n f„r ,~;ro,.+ ~r 420 i n ~ i rest-w~e~-se n n es#~et~s ~.;~er~.~ "e vas ~~~~rea~er~--a-re-~ e~-~~es#ed--~ 421 ~s~I~~ess~res-TheseTT,~-~-:n c ~~-~~.,++~ 422 COMMENT 423 This section is deleted from the City Code. 424 425 426 (Reserved). 427 428 429 430 14 431 ~ ', 432 433 • 434 435 436 437 438 COMMENT 439 This section is deleted from the City Code. 440 441 442 (Reserved). 443 444 445 . 446 447 X11 ~morin.+r~ Cnn;e+., of Cnni+.~r., Cr~ninoorc /A~CC\ 448 ~`~~ Amorin'+n \A/for \A/nrLe ~ccnr+i~+inn IA\AM/~\ 449 450 451 , 452 +„r ~.,+~rn+.,+o ~-,rr;~ 453 COMMENT 454 This section is deleted from the City Code. 455 456 457 458 (Reserved). 459 460 , 461 462 . 463 464 465 466 467 468 469 IoM~+ fi• oh,e /'17\ innhov Mhnvo +ho +Ir~r~.+ rim of +ho fivfi pro +h o" cor"o_ 15 470 471 ~a~--'R° a~ioe~ ana--Qea~le sk~es~~a'~,~a~se h'~°sJshall f~~ir~s~;;e~ a 472 473 474 475 COMMENT 476 This section is deleted from the City Code. 477 478 479 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFIC NCY: 480 ~,~ ) ~ ~ 481 ~~ ~""~+' 482 Department of Public Utilities City Attorney's Office 483 484 485 486 CA-11757 487 R-9 488 April 20, 2011 16 CROSS-CONNECTION CONTROL AND BACKFLOW PREVENTION POLICY Department of Public Utilities May 2011 Section 1. Definitions. For the purposes of this Policy, the following words and phrases shall have the meanings set forth in this section: Air gap: The unobstructed vertical distance through free atmosphere between the lowest perimeter of a water outlet and the flood-level rim of any receptacle. This distance will be a minimum of two (2) times the diameter of the outlet. In case of near-walls, this distance will be three (3) times the diameter of the outlet. Approved backflow preventer A backflow preventer assembly or device, with the exception of an approved air gap, means any device or assembly that retains a certificate of approval by the University of Southern California Foundation for Cross-Connection Control and Hydraulic Research (USC-FCCHR); or is compliant with the International Plumbing Code, manufactured to the applicable standard of the American Water Works Association, and American Society of Sanitary Engineering; or those specifically approved by the Director. Auxiliary supply: Any water source or system other than the public water supply that may be available in the building or premises. Backflow: The reversal of flow from its intended direction as a result of backsiphonage or backpressure. "Backflow prevention device worker" means any individual who engages in, or offers to engage in, the maintenance, repair, testing, or periodic inspection of cross connection control devices, including but not limited to reduced pressure principle backflow preventers, double check-valve assemblies, double-detector check-valve assemblies, pressure type vacuum breaker assemblies, and other such devices designed, installed, and maintained in such a manner so as to prevent the contamination of the potable water supply by the introduction of nonpotable liquids, solids, or gases, thus ensuring that the potable water supply remains unaltered and free from impurities, odor, discoloration, bacteria, and other contaminants which would make the potable water supply unfit or unsafe for consumption and use. Building Codes Administrator: The Building Codes Administrator or his designee, who shall perform all of the functions and have all of the powers of the code official as set forth in the Uniform Statewide Building Code Consumer.' Any person to whom water from the city water system is supplied directly, either as owner, agent or tenant of the premises to which water service is provided through a city meter, and who is responsible for the payment of charges for the consumption of water so supplied. Consumer water system: Piping located on private property and system comprised of valves, tanks, piping used for the purpose of conveyance of water for human consumption. Contaminant: The term "contaminant" means any physical, chemical, biological, or radiological substance or matter in water. Contamination: The term "contamination" means: (1) the presence of a contaminant in a concentration or quantity exceeding the maximum contaminant level specified for such contaminant, as promulgated in a National Primary Drinking Water Regulation; or, (2) the presence of a contaminant in a concentration or quantity that is toxic or is a nuisance, as determined by the Director. Cross-connection: Any physical connection between a potable water supply and any waste pipe, soil pipe, sewer, drain or any unapproved source or system; also, any potable water supply outlet which is submerged or can be submerged in waste or other source of contamination. Director: The Director of Public Utilities or his designee. Double-check valve assembly: An assembly of two (2) internally loaded, specially designed and independently operating check valves with a tightly closing shut-off valve on the upstream and the downstream side of the check valves, equipped with properly placed female threaded test cocks. Existing ground level: The level above which surface water will not accumulate under normal conditions. Flood-level rim: The top edge of the receptacle over which water could overflow. Hazard: Any condition, device or practice in the water usage system and its operation which creates or, in the judgment of the Director, may create a danger to the health and well-being of the water consumer. Owner. The person in charge, care and control of the property or the tenant or consumer who signed the water service agreement applicable to the property. 2 Person: An individual, partnership, association of persons, corporation, organization or any other group of the foregoing acting as a unit. Public water supply system: The public potable water supply system beginning at the water source and ending at the water meter serving a parcel of property. Reduced pressure principle back flow preventer or RP: An assembly of differential valves and check valves, including an automatically opened spillage port to the atmosphere, designed to prevent backflow, incorporated with a tightly closing shut-off valve on the upstream and the downstream side of the check valves, equipped with properly placed female threaded test cocks. Reduced pressure principle detector backflow prevention assembly or RPDA: An RP with a factory installed bypass meter used to detect flow. The RP is equipped with a permanently installed factory meter constructed integrally to the RP unit. Service connection: The terminal end of a service line from the public water supply system. If a meter is installed at the end of the service, then the service connection means the downstream end of the meter. Service line: That portion of the water line from the consumer's side of the water meter to the first water outlet. Testable Backflow Prevention Assemblies: These assemblies include Reduced pressure principle backflow preventer (RP), Reduced pressure principle detector backflow prevention assembly (RPDA), Double check valve assembly (DC), Double check valve detector assembly (DCDA), Pressure Vacuum Breaker (PVB), or Spill resistant pressure vacuum breaker backsiphonage prevention assemblies (SVB) Toxic substance: Those substances, or combinations of substances, including disease causing agents, which, upon exposure, ingestion, inhalation or assimilation into any organism, either directly or indirectly, are likely to cause impairment of normal health, death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations in such organisms or their offspring. Vacuum breaker, atmospheric: A vacuum breaker designed so as not to be subjected to continuous static line pressure. Vacuum breaker, pressure type: A vacuum breaker designed to operate under conditions of static line pressure. 3 Y Section 2. Objectives. The objectives of this Policy are to: (1) Protect the public health, safety, and welfare through a cross- connection control and backflow prevention program intended to prevent the potential or actual occurrence where a backflow, backpressure condition, or cross connection within piping or other portions of consumers' potable water systems; could allow the entry of contaminants or pollutants into the public water supply system; (2) Eliminate or control existing cross-connections, actual or potential, at each water outlet from the consumer's service line; (3) Provide a continuing inspection program of cross-connection control that will systematically and effectively control all actual or potential cross-connections which may be installed in the future; (4) Provide standards on the proper types and usage of cross- connection hazard backflow prevention devices; (5) Set forth the respective responsibilities of the consumer, the Director, the Building Codes Administrator and certified cross- connection control test technicians; and (5) Supplement applicable regulations of the Commonwealth of Virginia pertaining to cross-connection control and backflow prevention in a manner consistent with such regulations. Section 3. Responsibilities of consumer. (a) The consumer's responsibility begins at the point of delivery from the public water supply system, after the meter, and includes all of the consumer's water systems. The consumer shall install, operate, test and maintain approved backflow prevention assemblies or devices, as required herein, and when directed by the Director. It shall be the duty of the consumer to have each backflow prevention assembly or device inspected and tested at least annually, or more often where successive inspections are indicated to be required as determined by a Certified Backflow Prevention Device Worker or the Director. All testing shall be performed only by a Certified Backflow Prevention Device Worker. 4 (b) The consumer shall ensure that each backflow prevention assembly or devices shall be tested or re-tested after installation, relocation, or repair of the backflow prevention assemblies or devices. (c) A consumer's new water system to be protected by a backflow prevention assembly or device shall not be placed into service unless backflow prevention assembly or device has been tested, is functioning as designed, the certification paperwork is satisfactory and has been submitted to the Building Code Administrator. (d) Where an existing consumer's water system is changed or modified or the facility use has changed, the connection to the public water supply system shall not be allowed unless the installation is free of cross connection or the backflow prevention assembly or device has been tested and is functioning as designed; and the certification paperwork has been deemed satisfactory by the Director. (e) The consumer shall require that inspections will be made by a Certified Backflow Prevention Device Worker. A list of Certified Backflow Prevention Device Workers shall be maintained by the Director and will be available upon request to all persons required to install or maintain a backflow prevention assembly or device. (f) The consumer shall maintain accurate records of inspections, ,tests, overhaul, and repairs made to backflow prevention assembly or devices and provide the Director with copies of such records. The records shall be on forms approved or provided by the Director and shall be provided to the Director by the date specified by the Director. The consumer should, but is not required to, retain all such records for a minimum of ten years from the date that a copy of the record was provided to the Director. (g) The consumer shall ensure that all testable backflow prevention assemblies other than portable assemblies are tagged in accordance with Section 5 subpart d. Section 4. Responsibilities of director, etc. (a) The Director's responsibilities include: (1) Having primary responsibility for implementing and maintaining a cross-connection control and backflow prevention program to prevent contamination of the public water supply system. The Director shall not install, maintain, or allow to be installed a water service connection to any premises where cross connections to a the public water supply system or a consumer's water system may 5 exist unless such cross connections are abated or controlled to the satisfaction of the Director; (2) Inspecting, during reasonable hours and as necessary, consumer water system connected to the public water supply system to ascertain the extent of any hazard and the need for backflow prevention or cross connection control. The inspections and surveys shall be documented on forms as approved by the Director; (3) Maintaining adequate records of all testable backflow prevention or cross connection control assemblies or devices installed, tests made for each, and any subsequent maintenance or repair thereof, and including all cross connection control and backflow prevention inspections and surveys. The records shall be maintained for such period of time as is required by law; (4) Administering and enforcing the provisions of the City Code pertaining to cross-connection control/backflow prevention; and (5) Performing such other duties as may be prescribed by the City Manager. (b) The Building Codes Administrator's responsibilities include: (1) Administering and enforcing the applicable provisions of the Virginia Uniform Statewide Building Code, Part 1 (Construction), including reviewing building plans, plumbing plans, and performing inspections of new installations of backflow prevention devices in accordance with applicable provisions of Building Code. These responsibilities apply to portions of a consumer's water system beginning at the downstream point of connection to the public water supply system (the demarcation point is the meter where such are used for domestic service; or a valve at the property line on fire supply lines) and apply throughout the extent of the consumer's water system; and (2) Performing such other duties as may be prescribed by the City Manager. (c) The certified backflow prevention device worker's responsibilities include: (1) Testing, installing, inspecting, repairing, and preparing reports on approved backflow prevention assemblies or devices as authorized or directed by the Director; and (2) Maintaining current certification to perform such responsibilities. 6 Section 5. Requirements for backflow prevention device workers. (a) The Director shall maintain a list of approved backflow prevention workers, which shall consist of all persons certified as such by the Virginia Board for Contractors and any other persons who can affirmatively demonstrate that their qualifications meet or exceed the applicable standards prescribed by the American Society of Sanitary Engineering (ABBE Standard 5000). (b) The Director shall have the authority to remove from the list of approved backflow prevention device workers any person found making incomplete or inaccurate records or documentation, making unauthorized repairs to a backflow prevention assembly or devices, failing to demonstrate proper test procedures, falsifying records, or demonstrating a lack of knowledge and/or professionalism in testing, repairing, installing, and maintaining backflow prevention assemblies. (c) Backflow prevention device workers shall use test kits that are certified annually. Copies of certifications/calibrations shall be sent to Public Utilities annually upon expiration. (d) Backflow prevention device workers shall tag the testable backflow prevention assembly upon completion of a test. The tag shall at a minimum contain the following information: Name, Address, and Phone # of Testing Company; Manufacturer, Model Number, Serial Number, and Size of device being tested; Test Date; Tester's Initials; Tester's DPOR Certification Number; and indication if the test passed or failed. Section 6. General design, installation and maintenance standards for consumer water systems. (a) A consumer's potable water system shall be designed, installed, tested, and maintained in such a manner as to prevent contamination to the public water supply system or the consumer's water system. This is accomplished by protecting consumer's water system where hazards or possible cross-connections may exist with approved backflow prevention assemblies or devices. Wherever such hazards or possible cross connections are possible, the consumer's water system shall be protected in accordance with the degree of hazard. (b) An approved backflow prevention device shall be installed at each service connection to a consumer's water system where, in the judgment of the Director, a health, pollution, or system hazard to the public water supply system exists; provided, that when, as a matter of practicality, the backflow prevention device cannot be installed at the service connection, the device may be located downstream of the service connection but prior to any unprotected takeoffs. 7 1 (c) A backflow prevention device shall be installed at each service connection to a consumer's water system serving premises where the following conditions exist: (1) Premises on which any substance is handled in such a manner as to create an actual or potential hazard to a waterworks (this shall include premises having sources or systems containing process fluids or waters originating from a waterworks which are no longer under the control of the Department of Public Utilities); (2) Premises having internal cross connections that, in the judgment of the Director, may not be easily correctable or have intricate plumbing arrangements which make it impracticable to determine whether or not cross connections exist; (3) Premises where, because of security requirements or other prohibitions or restrictions, it is impossible or impractical to make a complete cross connection survey; (4) Premises having a repeated history of cross connections being established or reestablished; (5) Premises having fire protection systems utilizing combinations of sprinklers, fire loops, storage tanks, pumps, antifreeze protection, or auxiliary water sources including siamese connections (fire loops and sprinkler systems with openings not subject to flooding, and containing no antifreeze or other chemicals, no separate fire protection storage, or auxiliary sources, will not normally require backflow prevention); and (6) Other premises specified by the Director when cause can be shown that a potential cross connection hazard not enumerated above exists. Section 7. Protective devices for fire systems, schools and medical facilities. (a) Fire systems having direct connections from the public water supply system are required to have an air gap, RP, or RPDA backflow prevention assemblies. (b) Where existing fire protection systems have detector checks installed at the connection to the public water supply system for fire mains and these fire mains are equipped with private fire hydrants and located in the consumer's yard, no backflow prevention or cross connection control will be required. Where changes made to the existing fire protection system and a permit is required, then the fire protection systems shall comply with paragraph (a) above. 8 (c) The potable water system for schools and medical facilities shall be protected from hazards by use of backflow prevention and cross connection control, the requirements of this Policy, and in accordance with applicable provisions of Article 3 of Chapter 37 of the City Code. Section 8. Emergency procedures. (a) In the event the consumer's water system or the public water supply system is contaminated due to a cross connection or backflow cause or condition on that consumer's premises, and the same comes to the knowledge of the consumer, the consumer shall immediately notify the Director. These notifications by the consumer are mandatory so that appropriate measures may be taken to overcome the contamination, inspections can be initiated to resolve the unsatisfactory condition, and corrective measures shall be implemented by the consumer. (b) In the event of contamination of the consumer's potable water system or public water supply system, due to cross connection or backflow cause or condition on or from the consumer's premises, the consumer shall promptly take all corrective measures to confine and eliminate the further spread of contamination. (c) Whenever the Director determines that a contamination condition exists, or contamination has created an imminent and substantial endangerment to public health, the Director is authorized to take immediate steps to correct a hazardous condition. These steps may include any one or all of the following: (i) discontinuance of potable water service, (ii) isolation of the consumer's water system from the public water supply system, or (iii) isolation of the consumer's water system. Such emergency steps may be taken without advance notice to the consumer. The consumer shall be notified of the steps taken as soon as reasonably possible thereafter, and the matter brought to the attention of the Gity Manager, City Attorney's Office, Building Code Administrator, Department of Housing and Neighborhood Preservation, Virginia Beach Health Department, and the Virginia Department of Health Office of Drinking Water (VDHODW). (d) The Director shall maintain a Backflow Prevention and Cross Connection Control Incidence Response Plan. The Incidence Response Plan will be used for training, a guide, and as needed for responding to incidences involving contamination of water as a result of failure to cross connection control and backflow prevention. The Incidence Response Plan will be updated and training exercises initiated at a frequency as determined by the Director. 9 (e) !In the event a contaminant enters the public water supply system, the following guidelines may be considered by the Director: (1) Investigate: Identify and isolate source of contaminant (if possible); conduct sampling to identify the contaminant and extent of contamination; notify VDHODW, Emergency Services, and City Manager. Assist in the preparation of an after action report and preservation of evidence where applicable. (2) Containment: If appropriate, conduct directional flushing to purge contaminant from the system; close appropriate system valves to contain the contaminant; and continue sampling until system is clear of contaminants. (3) Notification: Notify the public as appropriate to provide door hangers, door to door notification; radio, television, and newspaper. Section 9. Plan submittal. (a) Plans or drawings shall indicate the extent of backflow prevention and cross connection control. The plan shall include a schedule that shall, as a minimum, address the following for each backflow prevention assembly or device included in the plan or drawing for the building: (1) Owner name and address, phone number (2) Building name, address, (3) Building zone identification, (4) Floor, (5) Location/room number, (6) System served, (7) Occupant/tenant use, (8) Degree of Hazard, (9) Backflow prevention assembly or device, number each, type, and size, 10 (10) Design operational pressure and flow conditions, temperature condition, (11) Rated pressure, flow and temperature of the assembly or device, and (12) Drainage size and system, as applicable. Section 10. Records. (a) Records should be maintained for not less than ten (10) years. (b) Records are to include those required by the Director, but not be limited to: (1) Reports of inspections, recommendations, re-inspections, and corrective actions taken. (2) Correspondence between the consumer, the Building Code Administrator, Director, Virginia Beach health Department, VDHODW, and concerning corrective action. (4) Master list of all backflow protection assemblies or devices in use. (5) Data for each backflow protection assembly or device. (6) Test and maintenance reports for each assembly or device. (7) Monthly summary of inspections, surveys, notices to consumers, backlog of inspections and surveys, total number of consumers and hazards. Section 11. Fire hydrants. Any fire hydrant used for purposes other than fire fighting or maintenance shall be protected by an RP. The RP shall be obtained from the City in accordance with established written procedures. 11 Approved: City Ma er or authorized designee Approved as to Content: ~~~ ~ ~ ~` Director of Public Utilities Approved as to Content: Building Codes Administrator _~ ~'t~,1 ~'S Z,D 11 Date Approved as to Legal Sufficienc City Attorney's Office 12 ~'u ~y r~~`t' ''ky~7 ~°~'~ ~-fie _ . {~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Repeal Sections 6-110 and 21-251, and to Amend Sections 23-63 Through 23-72 of the City Code, Pertaining to Noise MEETING DATE: May 24, 2011 ^ Background: On April 17, 2009 the Virginia Supreme Court struck down the "reasonable person" based standard contained in our previous noise ordinance. City Council adopted our current ordinance on May 12, 2009. This ordinance repeals redundant provisions and revises other provisions based on input from law enforcement and the public. ^ Considerations: Adopting this ordinance will result in the following changes: Sec. 6-110: This amendment repeals this section. Noise from boat operation is regulated under Code of Virginia Section 29.1-737. Sec. 21-251: This amendment repeals this section. Noise from motorcycle operation is now regulated under Section 23-70 of the City Code. Sec. 23-63: This amendment recognizes the need to proceed in a manner consistent with a citizen's First Amendment rights. Sec. 23-64: This amendment adds a definition for "audible and discernable" and clarifies the definition of "noise". Sec. 23-65: This amendment makes clear a citizen's right to present probable cause evidence to a magistrate for the purpose of obtaining a magistrate's summons. Sec. 23-67: This amendment clarifies the exception noted in (4) applies only to special event permits and park use permits issued by the city. Sec. 23-68: This amendment clarifies that the use of sound level meters is required only by those code provisions that regulate noise based on a decibel basis, and it provides that the test results are prima facie evidence if the test was properly administered. Sec. 23-69: This amendment requires doors and windows of a residence to be closed when decibel readings are taken, and clarifies that such measurements when taken in multifamily dwelling or mixed use structures shall be taken from indoors when measuring from a common area or dwelling unit. Sec. 23-70: This amendment clarifies that subsection (a) of this Code section refers to noise resulting from the operation of a vehicle or motorcycle. It also incorporates the newly defined term "audible and discernable" into subsections (a) (pertaining to vehicle operation noise) and (c) (pertaining to noise emitting from vehicles as a result of the operation of electronic devices) when measured at a distance of at least 100 feet. Sec. 23-71: This amendment clarifies that amplified noise emitting from vehicles is not covered under the provisions of subsection (d); that the playing or operation of any of the enumerated devices, at a decibel level exceeding 75 dB(A) between 11:00 p.m. and 7:00 a.m., or 80 dB(A) between 7:00 a.m. and 11:00 p.m., is a violation; and that noise that substantially interferes with the working of hospitals, schools, etc. is a violation. Sec. 23-72: This amendment conforms the restaurant noise standard to the amplified noise standard in 23-71(d) and eliminates the alternative distance standard which was in place to allow enforcement prior to the Police Department obtaining decibel meters. ^ Public Information: In the summer and fall of 2009, after adoption of the current ordinance, several presentations were given to the community, and the City hosted a public forum. The attached ordinance and a notice regarding the proposed changes were posted to the City's Internet site on May 5, 2011, and an open session City Council briefing and a public hearing were held on May 10. Public notice will also be provided as part of the normal Council agenda process. ^ Attachments: Ordinance Recommended Action: Adopt Ordinance Submitting DepartmentlAgency: Police Department City Manager: k. 1 AN ORDINANCE TO REPEAL SECTIONS 6-110 AND 21- 2 251 AND TO AMEND SECTIONS 23-63 THROUGH 23-65 3 and 23-68 THROUGH 23-72 OF THE CITY CODE, 4 PERTAINING TO NOISE 5 6 SECTIONS REPEALED: §§ 6-110 and 21-251 7 SECTIONS AMENDED: §§ 23-63 through 23-65 and 23-68 through 8 23-72 9 10 WHEREAS, excessive sound vibration and inadequately controlled noise are 11 serious hazards to the public health, safety and welfare, and a source of annoyance to 12 the populace; and 13 14 WHEREAS, the residents of and visitors to the City of Virginia Beach are entitled 15 to an environment free from excessive sound vibration and inadequately controlled 16 noise that may endanger their health or welfare, or degrade their quality of life, comfort, 17 repose or peace; and 18 19 WHEREAS, it is the policy of the City of Virginia Beach to protect the health, 20 safety and welfare of its residents and visitors and to promote an environment free from 21 sound and noise disruptive of peace and good order; and 22 23 WHEREAS, it is the policy of the City of Virginia Beach to seek voluntary 24 compliance, or if necessary, citizen witness assistance in the prevention of excessive 25 noise that may endanger the health or welfare, or degrade the quality of life, comfort, 26 repose or peace of residents and visitors; 27 28 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 29 OF VIRGINIA BEACH, VIRGINIA: 30 31 That Sections 6-110 and 21-251 are repealed and Sections 23-64 through 23-65 32 and 23-68 through 23-72 of the City Code are hereby amended as follows: 33 34 Chapter 6. BEACHES, BOATS AND WATERWAYS 35 36 ARTICLE V. BOATING, SKIING AND SURFING 37 .... 38 39 ; 40 , 41 42 43 , 44 , 45 46 47 48 49 50 , 51 ,' 52 ' 53 54 55 56 COMMENT 57 58 This amendment repeals this section. Noise from boat operation is regulated under Code of 59 Virginia Section 29.1-737. 60 61 .... 62 63 Chapter 21 MOTOR VEHICLE AND TRAFFIC CODE 64 65 .... 66 ARTICLE II. VEHICLE OPERATION 67 68 ,, 69 s~s-I~ 70 71 72 , 73 , 74 ' 75 ~ , 76 77 78 , 79 . 80 81 82 . 83 84 85 86 87 _ 88 89 90 91 92 93 biro c. ~r oi~hor ref ei ~n~ n~ieoc• 94 95 COMMENT 96 97 This amendment repeals this section. Noise from motorcycle operation is now regulated 98 under Section 23-70 of the City Code. 99 100 101 Chapter 23. OFFENSES 102 103 ARTICLE I. MISCELLANEOUS OFFENSES 104 105 .... 106 107 ARTICLE II. NOISE 108 109 Sec. 23-63. Declaration of findings and policy. 110 111 City council hereby finds and declares that excessive sound is a serious hazard 112 to the public health, welfare, peace and safety and the quality of life; that a substantial 113 body of science and technology exists by which excessive sound may be substantially 114 abated; that the people have a right to and should be ensured an environment free from 115 excessive sound that may jeopardize the public health, welfare, peace and safety or 116 degrade the quality of life; and that it is the policy of the city to prevent such excessive 117 sound to the extent such action is not inconsistent with a citizen's First Amendment 118 rights. 119 120 COMMENT 121 122 This amendment recognizes the need to proceed in a manner consistent with a citizen's 123 First Amendment rights. 124 125 Sec.23-64. Definitions. 126 127 The following words, terms and phrases, when used in this article, shall have the 128 meanings ascribed to them in this section, except where the context clearly indicates a 129 different meaning: 130 131 A-weighted sound level means the sound pressure level in decibels as measured 132 on a sound level meter using the A-weighting network. The level so read is designated 133 dB(A) or dBA. 134 135 Audible and discernable means the sound can be heard by the human ear and 136 the sound is sufficiently distinct such that its source can be clearly identified. 137 138 Background noise level shall mean the aggregate of all sound sources impacting 139 at the place where a specific sound generation is measured or evaluated, excluding the 140 specific sound generation itself. 141 142 Decibel (dB) means a unit for measuring the volume of a sound, equal to twenty 143 (20) times the logarithm to the base ten (10) of the ratio of the pressure of the sound 144 measured to the reference pressure, which is twenty (20) micropascals (twenty (20) 145 micronewtons per square meter). 146 147 Emergency means any occurrence or set of circumstances involving actual or 148 imminent physical injury or illness or property damage that requires immediate action. 149 150 Emergency work means any work performed for the purpose of preventing or 151 alleviating the physical injury or illness or property damage threatened or caused by an 152 emergency. 153 154 Gross vehicle weight rating (GVWR) means the value specified by the 155 manufacturer as the recommended maximum loaded weight of a single motor vehicle. 156 In cases where trailers and tractors are separable, the gross combination weight rating 157 (GCWR), which is the value specified by the manufacturer as the recommended 158 maximum loaded weight of the combination vehicle, shall be used. 159 160 Instrument, machine or device means and refers to any musical instrument, 161 radio, phonograph, compact disc player, cassette tape player, amplifier or any other 162 machine or device for producing, reproducing or amplification of sound. 163 164 Motor carrier vehicle engaged in interstate commerce means any vehicle for 165 which regulations apply pursuant to section 18 of the Federal Noise Control Act of 1972 166 (P.L. 92-574), as amended, pertaining to motor carriers engaged in interstate 167 commerce. 168 169 Motorcycle means any motor vehicle designed to travel on not more than three 170 (3) wheels in contact with the ground and any four-wheeled vehicle weighing less than 171 five hundred (500) pounds and equipped with an engine of less than six (6) horsepower, 172 excepting farm tractors. 173 174 Motor vehicle means any self-propelled device or device designed for self- 175 propulsion, upon or by which any person or property is or may be drawn or transported 176 upon a street or highway, except devices moved by human power or used exclusively 177 upon stationary wheels or tracks. 178 179 Noise means any audible sound which ar~ae~e~ disturbs or tends to disturb 180 humans or which causes or tends to cause an adverse psychological or physiological 181 effect on humans. 182 183 Public area means any real property owned by the government, including, but not 184 limited to, public rights-of-way, sidewalks, parks, and buildings. 185 186 Residential dwelling means any building or other structure in which one or more 187 persons resides on a permanent or temporary basis, including, but not limited to, 188 houses, apartments, condominiums, hotels, and motels. 189 190 Restaurant means any building or structure where in the normal course of 191 business food or drink is available for eating on the premises, in consideration for 192 payment. For purposes of this chapter, the term restaurant includes, but is not limited 193 to, bars, lounges, taverns, coffee shops and cafes. 194 195 Sound means an oscillation in pressure, particle displacement, particle velocity or 196 other physical parameter, in a medium with internal forces that causes compression and 197 rarefaction of that medium. The description of sound may include any characteristic of 198 such sound, including duration, intensity and frequency. 199 200 Sound generation means any conduct, activity or operation, whether human, 201 mechanical, electronic or other, and whether continuous, intermittent or sporadic, and 202 whether stationary or ambulatory in nature, which produces or results in an audible 203 sound. 204 205 Sound level means the weighted sound pressure level obtained by the use of a 206 sound level meter and the A-frequency weighting network, as specified in American 207 National Standards Institute specifications for sound level meters. 208 209 Sound level meter means an instrument which includes a microphone, amplifier, 210 RMS detector, integrator or time averager, output meter and weighting networks used to 211 measure sound pressure levels. 212 213 COMMENT 214 215 This amendment adds a definition for "audible and discernable" and clarifies the definition 216 of "noise". 217 218 Sec. 23-65. Administration and enforcement. 219 220 ~ The police department s#ah-p° r°~n°nc.ihl° may issue a summons for 221 enforcement of the noise control program established by this article and 222 may be assisted by other city departments as required. 223 224 ~ Nothing in this section shall preclude a private citizen from obtaining a 225 magistrate's summons based upon a probable cause determination by the 226 magistrate's office. 227 228 COMMENT 229 230 This amendment makes clear a citizen's right to present probable cause evidence to a 231 magistrate for the purpose of obtaining a magistrate's summons. 232 233 Sec.23-66. Violations. 234 235 (a) Any person who violates any provision of this article shall be deemed to be 236 guilty of a Class 3 misdemeanor for a first offense. Any person who violates a provision 237 of this article within one (1) year after a previous conviction under this article shall be 238 guilty of a Class 2 misdemeanor. 239 240 (b) The person operating or controlling a noise source shall be guilty of any 241 violation caused by that source. If that cannot be determined, any owner, tenant, 242 resident or manager physically present on the property where the violation is occurring 243 is rebuttably presumed to be operating or controlling the noise source. 244 245 (c) In addition to and not in lieu of the penalties prescribed in this section, the 246 city may apply to the circuit court for an injunction against the continuing violation of any 247 of the provisions of this article and may seek any other remedy or relief authorized by 248 law. 249 250 Sec.23-67. Exceptions. 251 252 No provisions of this article shall apply to (1) the emission of sound for the 253 purpose of alerting persons to the existence of an emergency; (2) the emission of sound 254 in the performance of emergency work; (3) activities sponsored by the city; (4) activities 255 authorized by a permit issued pursuant to sections 4-1 or 24-6 p~~.,~e-s+fy~; or (5) 256 activities for which the regulation of noise has been preempted by federal law. 257 258 COMMENT 259 260 This amendment clarifies the exception noted in (4) applies only to special event permits 261 and park use permits issued by the city. 262 263 Sec. 23-68. Use of sound level meters. 264 265 The decibel level of any noise regulated on a decibel basis by this article shall be 266 measured by a sound level meter. The test results shall be prima facie evidence if 267 administered in accordance with Code of Virginia ~ 19 2-270 7 In order to implement 268 and enforce this article effectively, the chief of police shall promulgate standards and 269 procedures for using and testing sound level meters used in the enforcement of this 270 article. 271 COMMENT 272 273 This amendment clarifies that the use of sound level meters is required only by those code 274 provisions that regulate noise based on a decibel basis, and it provides that the test results are 275 prima facie evidence if the test was properly administered. 276 277 Sec. 23-69. Maximum sound levels and residential dwellings. 278 279 (a) Nighttime. No person shall permit, operate or cause any source of sound to 280 create a sound level that can be heard in another person's residential dwelling during 281 the hours between 10:00 p.m. and 7:00 a.m. in excess of 55 dBA when measured 282 inside the residence at least four (4) feet from the wall nearest the source, with doors 283 and windows to the receiving area closed. 284 °~~,- 285 286 (b) Daytime. No person shall permit, operate or cause any source of sound to 287 create a sound level in another person's residential dwelling during the hours between 288 7:00 a.m. and 10:00 p.m. in excess of 65 dBA when measured inside the residence at 289 least four (4) feet from the wall nearest the source, with doors and windows to the 290 receiving area closed. . 291 292 (c) Measurements in multifamily dwellings or mixed use structures. In a 293 structure used as a multifamily dwelling or a mixed use structure, the police department 294 may take measurements to determine sound levels from indoor common areas or other 295 dwelling units within of-e+e the structure or fr°Y,., °+h°r ,~,.,°~~;,,,, ,,.,;~~ ,.,;+~;,, +h° 296 fie, when requested to do so by #~ie a residential occupant in possession and 297 control thereof. Such measurement shall be taken at a point at least four (4) feet from 298 the wall, ceiling or floor nearest the noise source, with doors and windows to the 299 receiving area closed 300 301 (d) Exemptions. The following activities or sources of noise shall be exempt 302 from the daytime prohibition set forth in subsection (b) of this section: 303 304 (1) Band performances or practices, athletic contests or practices and other 305 school-sponsored activities on the grounds of public or private schools, colleges, or 306 universities. 307 308 (2) Athletic contests and other officially sanctioned activities in city parks or 309 facilities. 310 311 (3) Activities related to the construction, repair, maintenance, remodeling or 312 demolition, grading or other improvement of real property. 313 314 (4) Gardening, lawn care, tree maintenance or removal, and other landscaping 315 activities. 316 317 (5) Agricultural activities. 318 319 (6) Church bells, carillons, or calls to worship by other sound-producing devices. 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 (7) Religious or political gatherings to the extent that those activities are protected by the First Amendment to the United States Constitution. (8)-£7~} Public transportation, refuse collection and sanitation services. COMMENT This amendment requires doors and windows of a residence to be closed when decibel readings are taken, and clarifies that such measurements, when taken in multifamily dwelling or mixed use structures, shall be taken from indoors when measuring from a common area or dwelling unit. Sec. 23-70. Motor vehicle maximum sound levels; amplified sound from vehicles. (a) No person shall operate or cause to be operated a public or private motor vehicle or motorcycle on a public right-of-way at any time in such a manner that the sound level emitted by the operation of the motor vehicle or motorcycle, when measured at a distance of #+€t~--{~~8} one-hundred (100) feet or more; is audible and discernable or exceeds the level set forth in the following table: TABLE INSET: Sound level in dBA Vehicle Class Speed limit 35 Speed limit over MPH or less 35 MPH All motor vehicles of GVWR or GCWR of 6,000 lbs. or more 86 90 Any motorcycle 82 gg Any other motor vehicle or any combination of vehicles towed by any motor vehicle 76 82 (b) This section shall not apply to any motor carrier vehicle engaged in interstate commerce. (c) Notwithstanding any other provisions of this section or article, it shall be unlawful for any person to play or operate, or permit the playing, use or operation of, any radio, tape player, compact disc player, loud speaker or other electronic device used for the amplification of sound, which is located within a motor vehicle being operated or parked on public or private property within the city, including any public or private street or alley, in such a manner as to be audible and discernable ear at a distance of one hundred (100) or more feet from the vehicle in which it is located. 356 The provisions of this subsection shall not apply to motor vehicles driven in a 357 duly authorized parade, nor to motor vehicle alarms or other security devices, nor to the 358 emission of sound for the purpose of alerting persons to the existence of an emergency 359 or the emission of sound in the performance of emergency work. 360 361 COMMENT 362 363 This amendment clarifies that subsection (a) refers to noise resulting from the operation of 364 a vehicle. It also incorporates the newly defined term "audible and discernable" into subsections 365 (a) (pertaining to vehicle operation noise) and (c) (pertaining to noise emitting from vehicles as a 366 result of the operation of electronic devices) when measured at a distance of at least 100 feet. 367 368 Sec. 23-71. Specific prohibitions. 369 370 The following acts are declared to be violations of this article. This enumeration 371 shall not be construed to limit, in any way, the general prohibitions contained in Section 372 23-69: 373 374 (a) Vehicle horns, signaling devices and similar devices. Sounding any horn, 375 signaling device, or similar device on any automobile, motorcycle or other vehicle on 376 any right-of-way or in any public space continuously or intermittently for more than ten 377 (10) consecutive seconds, except when the sounding of any such device is intended as 378 a danger warning. 379 380 (b) Non-emergency signaling devices. Sounding or permitting the sounding 381 of any amplified signal continuously or intermittently from any bell, chime, siren, whistle 382 or similar device intended primarily for non-emergency purposes from any one location 383 for more than ten (10) consecutive seconds in any hourly period; provided, however, 384 that this subsection shall not apply to the sounding of such devices by religious uses or 385 by public bodies or agencies for testing, traffic control or other public purposes. 386 387 (c) Emergency signaling devices, security, burglar and fire alarms, etc. 388 Sounding or permitting the continuous or intermittent sounding outdoors of any 389 emergency signaling device, or any security, burglar or fire alarm, siren, whistle, or 390 similar device, including without limitation any motor vehicle security alarm, siren, 391 whistle, or similar device, for a period in excess of ten (10) minutes in any residential 392 area and fifteen (15) minutes in any other area, except in response to a burglary, 393 attempted burglary, fire, or other emergency. 394 395 (d) Audio and audio-visual devices, musical instruments, amplified sound etc.1 396 excluding those in motor vehicles. The playing or operation of any television, boombox, 397 stereo, phonograph, radio, tape player, compact disc player, MP3 player, video player, 398 musical instrument, drum, amplifier or any other device that produces, reproduces or 399 amplifies sound, ' except for those located in 400 motor vehicles, where the sound, when measured in anv public area including but not 401 limited to anv public street or sidewalk or from other private property between the hours 402 of 7:00 a.m. and 11:00 p.m. exceeds eighty (80) dB(A) or between the hours of 11'00 403 p.m. and 7:00 a.m. exceeds seventy-five (75) dB(A) ' 404 405 406 fie+~-,-;amore-#;e~~u~-~Te-seu-p~; provided, however that the provisions of this 407 subsection shall not apply to any outdoor performance, parade, gathering, dance, 408 concert, show, sporting event, or other event sponsored by the city or for which the city 409 has granted a permit. 410 411 (e) Noise-sensitive areas. The making of any unreasonably loud and raucous 412 noise within two hundred (200) feet of any school, place of worship, court, hospital, 413 nursing home, or assisted-living facility while the same is being used as such, that 414 substantially interferes with the workings of the institution. 415 416 (f) Construction equipment. The operation of any bulldozer, crane, backhoe, 417 front loader, pile driver, jackhammer, pneumatic drill, or other construction equipment 418 between the hours of 9:00 p.m. and 7:00 a.m. except 419 as provided in ~ 23-67 above, or as specifically deemed necessary 420 and authorized by a written document issued by the City Manager or his designee. 421 422 COMMENT 423 424 This amendment clarifies that amplified noise emitting from vehicles is not covered under 425 the provisions of subsection (d); that the playing or operation of any of the enumerated devices, at a 426 decibel level exceeding 75 dB(A) between 11:00 p.m. and 7:00 a.m., or 80 dB(A) between 7:00 a.m. 427 and 11:00 p.m., is a violation; and that noise that substantially interferes with the working of 428 hospitals, schools, etc. is a violation. 429 430 Sec. 23-72. Sound levels; restaurants. 431 432 No person shall permit, operate or cause any source of sound to create a sound 433 level emanating from a restaurant during the hours between 7:00 a.m. and 11:00 p.m. in 434 excess of eighty (80) dB(A) or between 11:00 p.m. and 7:00 a.m. {a-} in excess of 435 seventy-five (75) dB(A) when measured from any public area, including but not limited 436 to ad}ase~ any public streets or sidewalks, or other private property ~ ^~ ~"~,-+"mss ~,, 437 438 ' 439 440 441 COMMENT 442 443 This amendment conforms the restaurant noise standard to the amplified noise standard in 444 23-71(d) and eliminates the alternative distance standard which was in place to allow enforcement 445 prior to the Police Department obtaining decibel meters. Adopted by the City Council of the City of Virginia Beach, Virginia, this day of , 2011. APPROVED AS TO CONTENT: Police Department CA11309 R-11 May 9, 2011 APPROVED AS TO LEGAL SUFFICIENCY: City rney' O ~~%4 NF 1 y ~'rr. `°7 ~ u~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Civil Penalties for Violations of Certain Ordinances Governing the Use of the Public Sewer System (City Code Chapter 28) MEETING DATE: May 24, 2011 ^ Background: On July 1, 2010, the General Assembly enacted amendments to the Virginia Code to give localities the authority to make violations of certain ordinances, including the City's Sewer Use and Fats, Oils, and Grease (FOG) ordinances punishable by means of civil penalties. These amendments, in their original form, were part of the City's 2010 Community Legislative Agenda. While they were enacted with added language, the City continued to support the legislation. ^ Considerations: The proposed amendments create two types of civil penalties, both of which are expressly authorized by the 2010 enabling legislation. The first type of civil penalty (City Code Section 28-70.1 (a)) is intended to address relatively serious violations. The amount of any such civil penalty is to be based on (1) the severity of the violation,(2) the extent of any potential or actual environmental harm or facility damage, (3) the compliance history of the violator, (4) any economic benefit realized from the noncompliance, and (5) the ability of the violator to pay the penalty. The maximum amount of this type of civil penalty is $32,500 per violation, which is the same as the maximum amount specified in the Virginia Code, and would be reserved for extremely serious offenses. This type of violation requires providing the alleged violator with the opportunity to contest the violation administratively and to appeal any order, irrespective of the amount of the civil penalty assessed, to the Circuit Court. The second type of civil violation (City Code Section 28-70.1 (b)) are "scheduled" violations, and are used for minor violations. The procedure allows an alleged violator to pay a civil penalty summons instead of contesting it in court or, at his option, to contest it in the General District Court. The procedure for this type of civil penalty is essentially the same as the procedure used for violations of the City Zoning Ordinance. Violations of the Sewer Use or FOG ordinance that are addressed by means of civil penalties do not constitute criminal offenses and therefore do not result in a criminal record for the violator. Civil penalties are commonly used as a means of enforcing environmental laws and ordinances, as well as many other types of regulation. The proposed ordinance also makes corrective amendments to the Sewer Use and FOG Ordinances that are of lesser significance. ^ Public Information: Public information will be provided through the normal Council agenda process. ^ Recommendations: Adoption of Ordinance ^ Attachments: Proposed ordinance Recommended Action: Approval Submitting Department/Agency: Public Utilities~~ City Manage . ~ ~ , ~p-~ 1 AN ORDINANCE TO AMEND CHAPTER 28 OF THE CITY 2 CODE, PERTAINING TO THE USE OF THE PUBLIC 3 SEWER SYSTEM AND ADDING CIVIL PENALTIES FOR 4 VIOLATIONS OF CERTAIN ORDINANCES GOVERNING 5 THE USE OF THE PUBLIC SEWER SYSTEM 6 7 Sections Amended: City Code Sections 28-65, 28-66, 28-70 8 28-76, 28-78, 28-79 and 28-81 9 10 Sections Added: City Code Sections 28-70.1 and 28-81.1 11 12 13 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, 14 VIRGINIA: 15 16 That Chapter 28 of the City Code is hereby amended and reordained by the 17 amendment of Sections 28-65, 28-66, 28-70, 28-76, 28-78, 28-79 and 28-81 and the 18 addition of new Sections 28-70.1 and 28-81.1, pertaining to the use of the public sewer 19 system and adding civil penalties for violations of certain ordinances governing the use of 20 the public sewer system, to read as follows: 21 22 CHAPTER 28. SEWERS AND SEWAGE DISPOSAL 23 .... 24 25 ARTICLE IV. USE OF THE PUBLIC SEWER SYSTEM 26 27 DIVISION 1. SEWER USE 28 29 Sec.28-65. Definitions. 30 31 The following words and terms used in this division shall have the following 32 meanings, unless the context clearly indicates otherwise: 33 34 .... 35 36 Infiltration. The introduction of groundwater into the public sanitary sewer system 37 Infiltration includes but is not limited to frequent seepage of groundwater through defective 38 or cracked pipes, pipe joints, connections, or manhole walls. Infiltration does not include 39 and is distinguished. from inflow. 40 Inflow. Water, other than wastewater, that enters a sanitary sewer svstem (including 41 service connections) from sources such as, but not limited to, roof leaders, cellar drains, 42 yard drains, area drains, drains from springs and swampy areas, manhole covers. 43 cleanouts. cross connections between storm sewers and sanitary sewers, catch basins, 44 storm waters, surface runoff, street wash waters or drainage. Inflow does not include, and 45 is distinguished from, infiltration. 46 47 COMMENT 48 49 The amendments add definitions of the terms "infiltration" and "inflow." 50 51 .... 52 53 Sec. 28-66. Prohibited discharges. 54 55 No person shall discharge or cause to be discharged into any portion of the public 56 sewer system, directly or indirectly, any wastes which may violate any law or governmental 57 regulation or have an adverse or harmful effect on the public sewer system, maintenance 58 personnel, processes, or equipment, or which may otherwise endanger the public or create 59 a nuisance. The following discharges are prohibited: 60 61 .... 62 63 (e) Any significant quantities of unpolluted water such as rainwater, stormwater, 64 groundwater, street drainage, yard drainage, private swimming pool discharge, or water 65 from yard fountains, ponds or lawn sprays. 66 67 COMMENT 68 69 The amendments add discharge from private swimming pools to the listing of prohibited 70 discharges to the public sewer system. 71 72 .... 73 74 Sec. 28-67. Discharges of stormwater or surface water. 75 76 (a) No person shall connect any sump pump or any roof, foundation, areaway, 77 parking lot, roadway, or other surface runoff or groundwater drains to any sewer connected 78 to any portion of the city's wastewater collection system unless such connection is 79 authorized in writing, for good cause, by the director. 80 2 81 (b) All discharges of stormwater, surface water, groundwater, roof runoff, 82 subsurface drainage, or other similar discharges of stormwater shall be made to discharge 83 to storm sewers or natural outlets designed for such discharges, except as authorized 84 under this section. No person shall construct or use any connection, drain, or arrangement 85 which will permit any such waters to enter the public sewer system. 86 87 COMMENT 88 89 The amendments add sump pumps to the listing of prohibited connections to the public sewer 90 system. 91 92 .... 93 94 95 Sec. 28-70. Violations and penalties. 96 97 (a) Any intentional or willful act or omission to act in violation of any of the 98 provisions of this division shall be punishable by fine in an amount not to exceed one 99 thousand dollars ($1,000.00) per violation. Each day that a continuing violation exists shall 100 constitute a separate offense. The court assessing such fines may, at its discretion, order 101 such fines to be paid into the treasury of the city for the purpose of abating, preventing or 102 mitigating environmental pollution. 103 104 (b) Any person who, intentionally or otherwise, commits any of the acts prohibited 105 by this division or who fails to perform any of the acts required by this division shall be 106 liable to the city in an action at law for all costs of containment, cleanup, abatement, 107 removal and disposal of any substance unlawfully discharged into the wastewater collection 108 system, as well as the costs of any damages or regulatory fines imposed upon the city, that 109 are proximately caused by such violations. Such costs shall be collectible by the city in 110 accordance with the provisions of sections 28-29 and 28-30. 111 112 (c) The city may bring legal action to enjoin the continuing violation of this 113 division, and the existence of any other remedy, at law or in equity, shall be no defense to 114 any such action. 115 116 (d) Except as expressly provided in section 28-70.1. ~e the remedies set forth in 117 this section and in section 28-70.1 shall be cumulative, not exclusive; and1 it shall not be a 118 defense to any action, civil or criminal, that one or more of the remedies set forth herein 119 has been sought or granted. 3 120 121 122 123 124 125 126 C.'nMMF.NT The amendment is necessary in order to avoid a conflict between the provisions of this section and the new Section 28-70.1. Sec. 28-70.1. Civil penalties: scheduled violations. 127 (a) Except for the violations specified in the Schedule of Civil Penalties set forth 128 in subsection (b), and without otherwise limiting the remedies which may be obtained under 129 this division, the city may issue an order assessing a civil penalty or other monetary 130 assessment in accordance with the following provisions: 131 132 (1) No order assessing a civil penalty for a violation shall be issued until 133 after the alleged violator has been provided an opportunity for a 134 hearing before the Director. except with the consent of the alleged 135 violator. The notice of the hearing shall be served personally or by 136 registered or certified mail. return receipt requested, on the alleged 137 violator or his authorized representative at least thirty (30) days prior to 138 the hearing. The notice shall specify the time and place for the 139 hearing, facts and legal requirements related to the alleged violation 140 and the amount of any proposed civil penalty At the hearing the 141 alleged violator may present evidence including witnesses regarding 142 the occurrence of the alleged violation and the amount of the penalty 143 and may examine any witnesses for the city. A verbatim record of the 144 hearing shall be made. Within thirty (30) days after the conclusion of 145 the hearing, the Director shall make findings of fact and conclusions of 146 law and issue the order. 147 148 (2) No order issued by the locality shall assess civil penalties in excess of 149 Thirty-Two Thousand. Five Hundred Dollars ($32 500) per violation 150 not to exceed One Hundred Thousand Dollars ($100 000) per order or 151 such other amount as may be allowed under Section 62 1-44 15 of the 152 Virginia Code or any successor statute, except with the consent of the 153 violator. 154 155 (3) The actual amount of any civil penalty assessed shall be based upon 156 the severity of the violation the extent of any potential or actual 157 environmental harm or facility damage the compliance history of the 158 violator, any economic benefit realized from the noncompliance and 4 159 the ability of the violator to pay the penalty. In addition to civil penalties 160 the order may include a monetary assessment for actual damages to 161 sewers, treatment works and appurtenances and for costs, attorney 162 fees and other expenses resulting from the violation. 163 164 (4) Anv civil penalty or other monetary assessment included in any such 165 order shall be payable as set forth in the order. Any unpaid balance at 166 the time payment of the civil penalty or other monetary assessment is 167 due may be collected in an action at law against the violator or 168 included in the violator's bill for sewer services and collected in 169 accordance with Sections 28-29 and 28-30. 170 171 ~5) Anv order issued by the city, whether or not such order assesses a civil 172 penalty, shall inform the alleged violator of his right to judicial review of 173 any final order by appeal to the circuit court on the record of 174 proceedings before the Director. To commence an appeal the alleged 175 violator shall file a petition in circuit court within thirty (30) days of the 176 date of the final order, and failure to do so shall constitute a waiver of 177 the right to appeal. With respect to matters of law the burden shall be 178 on the party seeking review to designate and demonstrate an error of 179 law subject to review by the court. With respect to issues of fact the 180 duty of the court shall be limited to ascertaining whether there was 181 substantial evidence in the record to reasonably support such findings. 182 183 (b) Anv violation listed in the following schedule shall subject the violator to a civil 184 penalty in the amount of One Hundred Dollars ($100.00) for an initial summons and One 185 Hundred Fifty Dollars ($150.00) for each additional summons in lieu of any other civil 186 penalty authorized by this section; provided however that the total amount for a series of 187 specified violations arising from the same operative set of facts shall not exceed three 188 thousand dollars ($3,000), as follows: 189 190 ~1) The city may issue a civil summons ticket for a violation. Anv person 191 summoned or issued a ticket for a violation may make an appearance 192 in person or in writing by mail to the city treasurer prior to the date fixed 193 for trial. Anv person so appearing may enter a waiver of trial admit 194 liability and pay the civil penalty established for the violation. 195 196 (2) If a person charged with a violation does not elect to enter a waiver of 197 trial and admit liability, the violation shall be tried in the general district 198 199 200 201 202 203 204 205 206 207 court in the same manner and with the same right of appeal as provided for by law. In any such trial, the city shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. (3) An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding, and no civil action authorized by this section shall proceed while a criminal action is pending 208 ~ Any civil penalties imposed pursuant to this subsection shall be paid 209 into the treasury of the city for the purpose of abating, preventing or 210 mitigating environmental pollution. 211 212 213 SCHEDULE OF CIVIL PENALTIES 214 Violation City Code Section 215 216 Unauthorized roof leader connected to public sewer svstem 28-67 (a) 217 Unauthorized sump pump connected to public sewer svstem 28-67 (a) 218 Unauthorized connection to sanitary sewer allowing inflow 219 and/or infiltration to enter the sanitary sewer svstem 28-67 b 220 Discharges to public sewer svstem prohibited by Section 28-66 28-66 221 Willfully causine damage to, obstruction of, or introduction 222 of materials harmful to public sewer collection svstem 28-68 a 223 224 COMMENT 225 226 Both subsection (a) and subsection (b) authorize the imposition of civil penalties for violations 227 of the Sewer Use Ordinance. There are, however important distinctions between the two subsections in 228 the amounts of, and procedures for assessing, civil penalties. 229 230 Subsection (a) requires that the Director of Public Utilities (or his designee) must hold an 231 administrative hearing before a civil penalty may be assessed unless the alleged violator consents to the 232 civil penalty. The alleged violator has the right to request a reconsideration by the Director and may 233 also appeal any order issued by the Director to the Circuit Court. The maximum amount of a civil 234 penalty assessed under subsection (a) is $32,500 per violation and $100,000 per order. 6 235 236 Under subsection (a), the actual amount of any civil penalty assessed must be based upon the 237 severity of the violation, the extent of any potential or actual environmental harm or facility damage, 238 the compliance history of the violator, any economic benefit realized from the noncompliance, and the 239 ability of the violator to pay the penalty. 240 241 Subsection (b), by contrast, applies only to the violations that are specified in the schedule set 242 forth in the ordinance. These violations are treated in the same manner as traffic tickets or civil 243 penalties for violations of the City Zoning Ordinance, in that no administrative hearing is required. 244 Instead, the alleged violator may, upon receipt of a summons, request that the matter be tried by the 245 General District Court. The maximum amount of any such civil penalty is $100 for a first summons 246 and $150 for each subsequent summons involving the same facts, up to a total of $3,000. Violations 247 scheduled under subsection (b) may not be addressed under subsection (a), and no criminal action may 248 be taken for a violation while a civil penalty proceeding is pending under subsection (b). 249 250 251 DIVISION 2. FATS, OILS AND GREASE (FOG) 252 253 .... 254 Sec. 28-76. Registration requirements for food service establishments. 255 256 All food service establishments shall be required to register their grease control 257 devices. Registrations shall be on forms provided by the Director to ensure that such 258 devices are properly sized and maintained and to facilitate inspection in accordance with 259 the requirements established by the Director. 260 261 (a) Existing food service establishments shall register all grease control devices 262 within ninety (90) days after the effective date of this Division; provided. New 263 establishments shall register such devices when requesting their water and 264 sewer service, applying fora business license, or prior to obtaining a 265 certificate of occupancy, whichever is later. 266 267 (b) :4!' yy~e~,;,ase^-,-~fy~^a~+ers~ew, +s~i~-~T °~Q~o^}~Qewses~r-{,~~~er- 268 asfafal~s#~e~s ~~ii}~Trh7C'.`bi}~~ ren~~ire.d +n nh}~.~.. .~ '.~..-f:fii.i.i:.... }n 269 r~~,,}.., } (~nmrv~i~.c. I,,},.,r }hen nin }~i /~/1\ rl.+~i Fier }hn eFf~n}i~ie rl..}o nF i~-10tttF+r-a~crrrrrrrrr~{~~~}~r~t~--crrarrnirrer~Tvrsrcra~itrccrcrrc-crtc 271 }hic+ rli~ii~inn 272 273 Laa ,/111 nro~c~ h.,. Mere. n4+.+11 ..4.i.~ir, }ho rnn~ ~iro.d r,ermi+n ncr}iFin~++i~n nr .. r~nrr~~i I ~..i y......,.. ~ ~......~..~., .,~ ~~.........~ rcrr~~cciurrccr-pciTrnr~~~arr 274 }hn F ili}v in ~~ihinh uie+e•}n ~~iill hn ~nn ~ nF ern ~e h ~ d fr~cn~~a6 .r~rr-~~ ~vr~w~~ucrrEFS 275 7 276 277 rli~+nh.~rne Dermi+ 278 279 {d} ~ At least one employee of a food service establishment shall have completed a 280 training program concerning the operation and maintenance of grease control 281 devices, provided by the City, no later than ninety (90) days after the effective 282 date of this Division. 283 284 COMMENT 285 286 The amendments remove subsections (b) and (c) from Section 28-76. The grease hauler 287 requirements are set forth in Section 28-79 below. 288 Sec. 28-78. Grease Control Devices. 289 290 .... 291 292 (c) Maintenance. Grease control devices shall be maintained as follows: 293 (1) Grease control devices shall be properly maintained at all times. 294 Maintenance shall include the complete removal of all contents, 295 including floating material, wastewater and settled solids. Decanting or 296 discharging of removed waste back into the grease interceptor or 297 private sewer line or into any portion of the City's or HRSD's 298 wastewater collection system is prohibited. 299 300 (2) Grease interceptors shall be pumped out completely when the total 301 accumulation of surface fats, oils and grease, including floating solids 302 and settled solids, reaches twenty-five percent (25%) of the overall 303 liquid volume. At no time shall a grease control device be cleaned less 304 frequently than once every three (3) months unless allowed by the 305 Director for good cause shown. Approval will be granted on a case-by- 306 case basis upon submittal of a request by the food service 307 establishment documenting reasons for the proposed frequency 308 variance. The Director shall not approve any request unless the 309 applicant demonstrates that the frequency variance will not result in the 310 introduction of any greater quantities of FOG into the public sewer 311 system than would otherwise be introduced. 312 313 (3) Grease traps and grease removal devices shall be opened, inspected 314 and completely cleaned of food solids and fats, oils and grease a 8 315 minimum of once per week, unless allowed by the Director for good 316 cause shown. Approval will be granted on a case-by-case basis upon 317 submittal of a request by the food service establishment documenting 318 reasons for the proposed frequency variance. The Director shall not 319 approve any request unless the applicant demonstrates that the 320 frequency variance will not result in the introduction of any greater 321 quantities of FOG into the public sewer system than would otherwise 322 be introduced, and in no event shall the content of food solids and fats, 323 oils, and grease exceed twenty-five percent (25%) of the overall liquid 324 depth of the device. 325 326 (4) The Director of Public Utilities may establish a more frequent cleaning 327 schedule if the food service establishment is found to be contributing 328 FOG in quantities sufficient to cause line stoppages or to necessitate 329 increased maintenance of the wastewater collection system. 330 331 (5) Unless authorized by the Director, the use of additives including, but 332 not limited to, products that contain solvents, emulsifiers, surfactants, 333 caustics, acids, enzymes or bacteria are prohibited for use as grease 334 management control; provided, however, that additives may be used to 335 clean the FSE drain lines so long as the usage of such additives will 336 not cause FOG to be discharged from the grease control device to the 337 sanitary sewer system. The use of additives shall not be substituted 338 for the maintenance procedures required by this Section. The Director 339 shall not approve the use of any additives unless he is satisfied that 340 such use will have no adverse effects upon the public sewer system. 341 342 (6) Any grease control device rated for a flow of fifty (50) gallons per 343 minute (qpm) (100 Ib.) or higher shall be maintained by a grease 344 hauler meeting the requirements of Section 28-79. 345 346 COMMENT 347 348 The amendment adds a requirement that grease control devices rated at higher than 50 gallons 349 per minutes be maintained by a certified grease hauler. 350 351 352 Sec. 28-79. Requirements for 6~ease rease haulers. 353 (a) Any person collecting, pumping or hauling waste from grease control devices 354 within the City shall be certified under the Regional Grease Hauler Program of the Hampton 355 Roads Planning District Commission and shall be approved through a Hampton Roads 356 Sanitation District Indirect Wastewater Discharge Permit or a permit from the facility in 357 which waste will be disposed. 9 358 (b) Grease haulers shall notify the Director within twenty-four (24) hours of any 359 incident required to be reported to the Virginia Department of Environmental Quality. 360 (c) Grease haulers shall retain and make available for inspection and copying by 361 the Director, for a period of at least three (3) years, all records related to grease interceptor 362 pumping and waste disposal from businesses located in the City's wastewater service area. 363 The Director may require additional record keeping and reporting, as necessary, to ensure 364 compliance with the terms of this Division. 365 COMMENT 366 367 The amendment requires grease haulers that discharge into a facility other than HRSD to 368 obtain a permit from that facility, rather than HItSD. 369 370 .... Sec. 28-81. Violations and penalties. 371 (a) Any intentional or willful act or omission to act in violation of any of the 372 provisions of this division shall be punishable by fine in an amount not to exceed one 373 thousand dollars ($1,000.00) per violation. Each day that a continuing violation exists shall 374 constitute a separate offense. The court assessing such fines may, at its discretion, order 375 such fines to be paid into the treasury of the city for the purpose of abating, preventing or 376 mitigating environmental pollution. 377 378 (b) Any person who, intentionally or otherwise, commits any of the acts prohibited 379 by this division or who fails to perform any of the acts required by this division shall be 380 liable to the city in an action at law for all costs of containment, cleanup, abatement, 381 removal and disposal of any substance unlawfully discharged into the wastewater collection 382 system, as well as the costs of any damages or regulatory fines imposed upon the city, that 383 are proximately caused by such violations. Such costs shall be collectible by the city in 384 accordance with the provisions of sections 28-29 and 28-30. 385 386 (c) In addition to any other remedy for the violation of this division, the city may 387 bring legal action to enjoin the continuing violation of this division, and the existence of any 388 other remedy, at law or in equity, shall be no defense to any such action. 389 390 (d) Except as expressly provided in section 28-81.1, ~e the remedies set forth in 391 this section are cumulative, not exclusive, and it shall not be a defense to any action, civil 392 or criminal, that one or more of the remedies set forth herein has been sought or granted. 10 393 394 COMMENT 395 396 The amendment is necessary in order to avoid a conflict between the provisions of this section 397 and the new Section 28-81.1. 398 399 Sec. 28-81.1. Civil penalties; scheduled violations. 400 (a) Except for the violations specified in the Schedule of Civil Penalties set forth 401 in subsection (b), and without otherwise limiting the remedies which may be obtained under 402 this division, the city may issue an order assessing a civil penalty or other monetary 403 assessment in accordance with the following arovisions: 404 405 (1) No order assessing a civil penalty for a violation shall be issued until 406 after the alleged violator has been provided an opportunity for a 407 hearing before the Director, except with the consent of the alleged 408 violator. The notice of the hearing shall be served personally or by 409 registered or certified mail, return receipt requested, on the alleged 410 violator or his authorized representative at least thirty (30) days prior to 411 the hearing. The notice shall specify the time and place for the 412 hearing, facts and legal requirements related to the alleged violation. 413 and the amount of any proposed civil penalty. At the hearing the 414 alleged violator may present evidence, including witnesses. regarding 415 the occurrence of the alleged violation and the amount of the penalty 416 and may examine any witnesses for the city. A verbatim record of the 417 hearing shall be made. Within thirty (30) days after the conclusion of 418 the hearing, the Director shall make findings of fact and conclusions of 419 law and issue the order. 420 421 (2) No order issued by the locality shall assess civil penalties in excess of 422 Thirty-Two Thousand. Five Hundred Dollars ($32,500) per violation 423 not to exceed One Hundred Thousand Dollars ($100 000) per order or 424 such other amount as may be allowed under Section 62.1-44.15 of the 425 Virginia Code or any successor statute, except with the consent of the 426 violator. 427 428 (3) The actual amount of any civil penalty assessed shall be based upon 429 the severity of the violation. the extent of any potential or actual 11 430 environmental harm or facility damage, the compliance history of the 431 violator, any economic benefit realized from the noncompliance, and 432 the ability of the violator to pay the penalty. In addition to civil penalties, 433 the order may include a monetary assessment for actual damages to 434 sewers, treatment works and appurtenances and for costs. attorney 435 fees and other expenses resulting from the violation. 436 437 (4) Any civil penalty or other monetary assessment included in any such 438 order shall be payable as set forth in the order. Any unpaid balance at 439 the time payment of the civil penalty or other monetary assessment is 440 due may be collected in an action at law against the violator or 441 included in the violator's bill for sewer services and collected in 442 accordance with Sections 28-29 and 28-30. 443 444 (5) Any order issued by the city, whether or not such order assesses a civil 445 penalty, shall inform the alleged violator of his right to judicial review of 446 any final order by appeal to the circuit court on the record of 447 proceedings before the Director. To commence an appeal, the alleged 448 violator shall file a petition in circuit court within thirty (30) days of the 449 date of the final order, and failure to do so shall constitute a waiver of 450 the right to appeal. With respect to matters of law, the burden shall be 451 on the party seeking review to designate and demonstrate an error of 452 law subject to review by the court. With respect to issues of fact. the 453 duty of the court shall be limited to ascertaining whether there was 454 substantial evidence in the record to reasonably support such findings. 455 456 (b) Anv violation listed in the following schedule shall subiect the violator to a civil 457 penalty in the amount of One Hundred Dollars ($100.00) for an initial summons and One 458 Hundred Fifty Dollars ($150.00) for each additional summons in lieu of any other the civil 459 penalty authorized by this section: provided, however, that the total amount for a series of 460 specified violations arising_ from the same operative set of facts shall not exceed three 461 thousand dollars ($3,000), as follows: 462 463 (1) The city may issue a civil summons ticket for a violation. Any person 464 summoned or issued a ticket for a violation may make an appearance 465 in person or in writing by mail to the city treasurer prior to the date fixed 466 for trial. Anv person so appearing may enter a waiver of trial admit 467 liability and pay the civil penalty established for the violation. 468 12 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 (2) If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided for by law. In any such trial, the city shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. (3) An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding, and no civil action authorized by this section shall proceed while a criminal action is pending_ (4) Any civil penalties imposed pursuant to this subsection shall be paid into the treasury of the city for the purpose of abating, preventing or mitigating environmental pollution. SCHEDULE OF CIVIL PENALTIES Violation City Code Section Failure to maintain cleaning and maintenance records 28-78 (f) (1) Failure to maintain yellow grease disposal records 28-78 (f) (2) Failure to maintain certified employee with completed grease control device training 28-76 (d) Failure to register grease control device(s) 28-76 Failure to use certified grease hauler for grease control device over rated over 50 gallons per minute 28-78 (c) (6) Failure to properly maintain grease control device 28-78 (c) Failure to allow inspection of grease control device 28-78 (e) 13 503 COMMENT This section is identical to Section 28-70.1, except that this section applies to violations of the Fats, Oils and Grease (FOG) Ordinance. The Comment to Section 28-70.1 applies equally to this section. Adopted by the City Council of the City of Virginia Beach, Virginia, on the day of , 2011. Approved as to content: ~~ Department of Public Utilities CA-11615 R-5 March 16, 2011 Approved as to legal sufficiency: City Attorney's Office 14 ~HU xei o°~ w ~~''''' ~u ~ S x.y 41; ,- r., CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Providing the Tax Levy on Real Estate for Properties Listed in the Virginia Landmarks Register for FY2012 MEETING DATE: Mav 24. 2011 ^ Background: Based on a recommendation by the Virginia Beach Historic Preservation Commission, the City Council, in its 2011 Legislative Agenda, asked the General Assembly to provide authority for the City to levy real property taxes on certain historical buildings at a lower rate than other real property. House Bill 1851, which subsequently became Chapter 571 of the 2011 Acts of Assembly, classifies buildings on the Virginia Landmarks Register as a separate classification of real property for purposes of property taxation. This classification only includes the building and does not include the real estate or land upon which the building is located. The effective date of the classification is July 1, 2011. The City has 21 properties on the Virginia Landmarks Register. Of these properties, thirteen are exempt from real estate taxation because the property is owned by the government, a church, or a nonprofit organization that receives an exemption. There are currently eight privately-owned properties that qualify for the classification. Other properties may be added to the Register at a future date. The State of North Carolina provides a 50% tax reduction for qualifying historic properties (North Carolina G.S. § 105-278(a)). ^ Considerations: The aggregate assessed value of the eight privately-owned properties in this tax classification is $2,215,900. Any rate that is less than the general real property tax levy will result in a reduction of estimated revenue for FY 2011-12. The amount of this reduction corresponds to the rate applicable to the tax classification. The attached ordinance provides a rate of $0.45 per $100 of assessed value, which would result in a reduction of $9,750, which provides roughly the equivalent benefit as that provided to historic properties in North Carolina. The ordinance provides that the Reserve for Contingencies will be used to offset this reduction. ^ Public Information: Public information will be provided through the normal Council Agenda process. Because this ordinance provides a tax rate that is less than the rate applied to the general real estate tax rate, a separate public hearing is not legally required. ^ Recommendations: Approval ^ Attachments: Ordinance; Legislative Agenda Item Requested by Councilmembers Wilson and Davis REQUESTED BY COUNCILMEMBERS WILSON AND DAVIS 1 AN ORDINANCE PROVIDING THE TAX LEVY ON 2 REAL ESTATE FOR PROPERTIES LISTED IN THE 3 VIRGINIA LANDMARKS REGISTER FOR FY2012 4 Whereas, based on a recommendation by the Virginia Beach Historic 5 Preservation Commission, the City Council requested authority from the General 6 Assembly to classify certain historic properties as a separate classification of real $ property; and 9 Whereas, the General Assembly passed HB1851, which was subsequently 10 signed by the Governor; and 12 Whereas, the authority provided by the General Assembly allows the City Council 13 to levy a rate of real property taxes equal to or less than the general rate of taxation on 15 real property for properties listed by the Virginia Landmarks Register; and 16 Whereas, the City Council believes that maintaining the City's historical 17 resources, including buildings on the Virginia Landmarks Register, enhances the quality 19 of life of all residents of the City; and 20 Whereas, the tax classification applies to the building and does not apply to the 22 real estate or the land on which the building is located; 23 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 25 VIRGINIA BEACH, VIRGINIA, THAT: 26 1. In accordance with Chapter 571 of the 2011 Acts of Assembly, there shall 27 be levied and collected for general purposes for the fiscal year 2012, taxes on buildings 28 that are individually listed on the Virginia Landmarks Register, not including the real 29 estate or land on which the building is located, so long as the building is maintained in a 30 condition such that it retains the characteristics for which it was listed on the Virginia 31 Landmarks Register at a rate of $0.45 on each one hundred dollars of assessed 32 valuation thereof. The real property tax rate imposed in this section shall be applied on 33 the basis of one hundred percentum of fair market value of such real property except for 34 public service property, which shall be on the basis as provided by Section 58.1-2604 of 36 the Code of Virginia. 38 2. The effective date of this levy shall be July 1, 2011. 39 3. Estimated revenues from local real estate taxes shall be reduced by $9,750 40 and $9,750 shall be transferred from the Reserve for Contingencies to offset the 41 reduced estimated revenue. Adopted by the City Council of the City of Virginia Beach, Virginia on this day of , 2011. APPROVED AS TO LEGAL SUFFICIENCY: 's O ice CA11869 / R-4 /May 12, 2011 r .^ ~~~~ se". .. ': P~7r ~~i .:•r ~~=..._.... Di i. ., ;? _ - ,". CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An ordinance to authorize acquisition of property in fee simple for rights-of-way for BEACH GARDEN PARK - KILBOURNE COURT / HOLLY ROAD IMPROVEMENTS (CIP 7-049) and the acquisition of temporary and permanent easements, either by agreement or condemnation. MEETING DATE: May 24, 2011 ^ Background: The Beach Garden Park -Kilbourne Court /Holly Road Improvements project (CIP 7-049) (the "Projects first appeared in the FY 2009-10 CIP. This Project is for drainage, roadway, and sidewalk improvements for Kilbourne Court and Holly Road. Severe tidal flooding in this area poses safety hazards for vehicles and pedestrians. The Project will replace culverts on Kilbourne Court with a prefabricated bridge. Holly Road will have an arch culvert. The Project includes removal and replacement of approximately 3,100 linear feet of pavement, and 450 linear feet of raised wooden walkway, and installation of new pavement, curb, gutter, and sidewalks. ^ Considerations: Beach Garden Park and the associated entrance road, Kilbourne Court, were built in early 1980's on the site of a sewage lagoon and landfill. The road and associated culverts are failing due to continuous settlement. In 2008, the park was completely renovated as part of the Virginia Beach Middle School project to provide students with access to outdoor sports facilities during reconstruction of that school, and to provide access from Ocean Walk and 30th Street. The park site area also includes a Public Utilities water tower that requires frequent safe access by staff and service vehicles for timely maintenance and management. In addition, one of the six sites that run the City-wide communications is located within the park site. The Department of Public Works is requesting that City Council grant the authority to acquire, by agreement or condemnation, all real property and temporary and/or permanent easements associated with the Project. Nine (9) parcels will be affected. The acquisition will be administered by the City of Virginia Beach, through the Public Works Office of Real Estate. The total project cost is estimated at $1,800,000: Funding for the Project was provided by a transfer of $900,000 from Witchduck Road-Phase I (CIP #2-931), with $450,000 from Virginia Beach Middle School Replacement (CIP #1-234) and $450,000 from a Water Utility project (CIP #5-011). ^ Public Information: Advertisement of Public Hearing on issue of condemnation published in The Virginian-Pilot, Beacon. Advertisement of City Council Agenda, including this item. Letters sent to the affected property owners where rights- of-way and/or easements are required for Beach Garden Park -Kilbourne Court & Holly road Improvements. ^ Alternatives: Approve the ordinance as presented, deny the request, or add conditions as desired by Council. ^ Recommendations: Approval. ^ Attachments: Ordinance and Location Map Recommended Action: Submitting DepartmentlAgency: Public Works ~ ~~ City Manag ~~ 1 AN ORDINANCE TO AUTHORIZE 2 ACQUISITION OF RIGHTS-OF-WAY, 3 PERMANENT DRAINAGE EASEMENTS AND 4 TEMPORARY EASEMENTS, EITHER BY 5 AGREEMENT OR CONDEMNATION FOR 6 BEACH GARDEN PARK- KILBOURNE COURT 7 / HOLLY ROAD RIGHT-OF-WAY s IMPROVEMENTS, CIP 7-049 9 10 11 WHEREAS, in the opinion of the Council of the City of Virginia Beach, Virginia, a 12 public necessity exists for the construction of this important storm water and road 13 improvements project to improve drainage and motor vehicle and pedestrian transportation 14 within the City and for other related public purposes for the preservation of the safety, 15 health, peace, good order, comfort, convenience, and for the welfare of the people in the 16 City of Virginia Beach. 17 is NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: ao 21 Section 1. That the City Council authorizes the acquisition by purchase or 22 condemnation pursuant to Sections 15.2-1901, et sew., Sections 33.1-91, et seg., and Title 23 25.1 of the Code of Virginia of 1950, as amended, of all that certain real property in fee a4 simple, including permanent drainage easements and temporary construction easements 25 (collectively, the "Property"), as shown on the plans entitled "BEACH GARDEN PARK - 26 KILBOURNE COURT /HOLLY ROAD IMPROVEMENTS CIP 7-049" (the "Project") and 27 more specifically described on the acquisition plats for the Project (plats and plans as collectively referred to as the "Plans"), the Plans being on file in the Engineering Division, a9 Department of Public Works, City of Virginia Beach, Virginia. 30 31 Section 2. That the City Manager is hereby authorized to make or cause to be 32 made on behalf of the City of Virginia Beach, to the extent that funds are available, a 33 reasonable offer to the owners or persons having an interest in said Property. If refused, 34 the City Attorney is hereby authorized to institute proceedings to condemn said Property. 35 36 Adopted by the Council of the City of Virginia Beach, Virginia on the day of 37 ,2010. CA11648 9/29/10 R-1 \\vbgov.com\dfs1 \applications\citylawprod\cycom32\wpdocs\d028\p009\00073138.doc APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY ~- c. ~. blic Works/Real Estate ity Att rney's Office u: 1 Y ' (n +~ Z r~ ~~ ~' Z ti V1 N N ` Y N~~ ---- _ .~ ~G pv Q a °i~ y BP ~oc~p Z°oa~Q ~ ~ p~e~`aaUi~ o ~ ~ ~ z act cw VtirO~a \ ~ Q ~ ~ O ~ ,, ~ Y ~ o ''1 m 1'i ,14 2 ~ !,- p 1, ~\ ,. ,ti `ti ` y ~~''~ 1, `, ~° o oa 0 d~b~ `~ , v~ cy~~ b~~ d~ ~~O O6S `, 5~~~7 ~~~0 D ~ III g ~, J $- I~ ~' a .~ O a` T U ~ = ~ _ a D1 ~ 9 a~ J I o - S~~NU ~u ~ ~~! ~` J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing Preservation Easement and Obligations in the Maximum Styron and Phyllis N. Styron) MEETING DATE: May 24, 2011 the Acquisition of an Agricultural Land the Issuance by the City of its Contract Amount of $434,332 (Property of James L. ^ Background: In May, 1995, the Agricultural Lands Preservation Ordinance (the "Ordinance") was adopted by the City Council for the purpose of promoting and encouraging the preservation of farmland in the rural southern portion of the City. Under the Agricultural Reserve Program established by the Ordinance, the City purchases the development rights of eligible parcels of land, leaving the fee simple ownership of the land unchanged. These purchases are embodied by perpetual agricultural land preservation easements pursuant to which only agricultural uses, as defined in the Ordinance, are allowed on the land. The subject property has been appraised by an independent appraiser retained by the City. The appraiser has determined the fair market value of the property, based upon eight (8) comparable sales. From the fair market value, the value of the development rights has been determined by subtracting $1,800 per acre, which has previously been established as the farm value (i.e., value of the land restricted to agricultural uses) for land throughout the southern rural area of the City. The resulting amount is the value of the development rights of the property. All offers by the City to purchase the development rights to property are expressly made contingent upon the absence of any title defects or other conditions which, in the opinion of the City Attorney, may adversely affect the City s interests, and other standard contingencies. ^ Considerations: The subject property consists of three (3) parcels of land having approximately 47.21 acres outside of marshland or swampland. It is owned by James L. Styron and Phyllis Styron. Under current development regulations, there is a total development potential of five (5) single-family dwelling building sites, none (0) of which will be reserved for future development as a 3 acre building site. Property owners are no longer required to designate the location of the areas reserved for future building sites, but are required to subdivide such sites prior to building on them. The parcel, which is shown on the attached Location Map, is located at 5341 Morris Neck Road, in the District of Princess Anne. The proposed purchase price, as stated in the ordinance, is $434,332. This price is the equivalent of approximately $9,200 per acre. 2 The terms of the proposed acquisition are that the City would pay interest only for a period of 25 years, with the principal amount being due and payable 25 years from the date of closing. The interest rate to be paid by the City will be the greater of 4.095% per annum or the per annum rate which is equal to the yield on U.S. Treasury STRIPS purchased by the City to fund its principal obligation under the Installment Purchase Agreement, not to exceed 6.095% without the further approval of the City Council. The proposed terms and conditions of the purchase of the Development Rights pursuant to the Installment Purchase Agreement, including the purchase price and manner of payment, are fair and reasonable and in furtherance of the purposes of the Ordinance. ^ Public Information: The ordinance has been advertised by publication in a newspaper having general circulation in the City once per week for two successive weeks. ^ Alternatives: The City Council may decline to purchase the development rights to the property. ^ Recommendations: Adoption of the ordinance and acquisition of the development rights, assuming all contingencies are met. ^ Attachments: Ordinance; Summary of Material Terms of Installment Purchase Agreement (full Agreement is on file in the City Attorney s Office); area map showing location of property. Recommended Action: Adoption Submitting DepartmentlAgency: Agriculture Department City Manager: S 1 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN 2 AGRICULTURAL LAND PRESERVATION EASEMENT AND 3 THE ISSUANCE BY THE CITY OF ITS CONTRACT 4 OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF 5 $434,332 (James L. Styron and Phyllis N. Styron) 6 7 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the 8 "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been 9 presented to the City Council a request for approval of an Installment Purchase Agreement 10 (the form and standard provisions of which have been previously approved by the City 11 Council, a summary of the material terms of which is hereto attached, and a true copy of 12 which is on file in the City Attorney's Office) for the acquisition of the Development Rights 13 (as defined in the Installment Purchase Agreement) on certain property located in the City 14 and more fully described in Exhibit B of the Installment Purchase Agreement for a 15 purchase price of $434,332; and 16 17 WHEREAS, the aforesaid Development Rights shall be acquired through the 18 acquisition of a perpetual agricultural land preservation easement, as defined in, and in 19 compliance with, the requirements of the Ordinance; and 20 21 WHEREAS, the City Council has reviewed the proposed terms and conditions of the 22 purchase as evidenced by the Installment Purchase Agreement; 23 24 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 25 VIRGINIA BEACH, VIRGINIA: 26 27 1. The City Council hereby determines and finds that the proposed terms and 28 conditions of the purchase of the Development Rights pursuant to the Installment Purchase 29 Agreement, including the purchase price and manner of payment, are fair and reasonable 30 and in furtherance of the purposes of the Ordinance, and the City Manager or his designee 31 is hereby authorized to approve, upon or before the execution and delivery of the 32 Installment Purchase Agreement, the rate of interest to accrue on the unpaid principal 33 balance of the purchase price set forth hereinabove as the greater of 4.095% per annum or 34 the per annum rate which is equal to the yield on United States Treasury STRIPS 35 purchased by the City to fund such unpaid principal balance; provided, however, that such 36 rate of interest shall not exceed 6.095% unless the approval of the City Council by 37 resolution duly adopted is first obtained. 38 39 2. The City Council hereby further determines that funding is available for the 40 acquisition of the Development Rights pursuant to the Installment Purchase Agreement on 41 the terms and conditions set forth therein. 42 43 3. The City Council hereby expressly approves the Installment Purchase 44 Agreement and, subject to the determination of the City Attorney that there are no defects 45 in title to the property or other restrictions or encumbrances thereon which may, in the 46 opinion of the City Attorney, adversely affect the City's interests, authorizes the City 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 Manager or his designee to execute and deliver the Installment Purchase Agreement in substantially the same form and substance as approved hereby with such minor modifications, insertions, completions or omissions which do not materially alter the purchase price or manner of payment, as the City Manager or his designee shall approve. The City Council further directs the City Clerk to affix the seal of the City to, and attest same on, the Installment Purchase Agreement. The City Council expressly authorizes the incurrence of the indebtedness represented by the issuance and delivery of the Installment Purchase Agreement. 4. The City Council hereby elects to issue the indebtedness under the Charter of the City rather than pursuant to the Public Finance Act of 1991 and hereby constitutes the indebtedness a contractual obligation bearing the full faith and credit of the City. Adoption requires an affirmative vote of a majority of all members of the City Council. Adopted by the Council of the City of Virginia Beach, Virginia, on this day of 2011. CA11715 \\vbgov.com\DFS1 Wpplications\CityLawProd\cycom32\Wpdocs\D004\P010\00018317.DOC R-1 DATE: May 6, 2011 APPROVED AS TO CONTENT Agriculture Department APPROVED AS TO LEGAL SUFFICIENCY: City Attorney s Office CERTIFIED AS TO AVAILABILITY OF FUNDS: Director of Finance 2 AGRICULTURAL RESERVE PROGRAM INSTALLMENT PURCHASE AGREEMENT N0.2010-107 SUMMARY OF MATERIAL TERMS SELLER: STYRON, James L. and Phyllis N. PROPERTY LOCATION: 5341 Morris Neck Road, Princess Anne District PURCHASE PRICE: $434,332 EASEMENT AREA: 47.21 acres, more or less DEVELOPMENT POTENTIAL: Ssingle-family dwelling sites (5 acquired) DURATION: Perpetual INTEREST RATE: Equal to yield on U.S. Treasury STRIPS acquired by City to fund purchase price, but not less than 4.095% (actual rate to be determined when STRIPS are purchased prior to execution of IPA). Rate may not exceed 6.095% without approval of City Council. TERMS: Interest only twice per year for 25 years, with payment of principal due 25 years from IPA date RESTRICTIONS ON TRANSFER: IPA ownership may not be transferred (except for Estate Settlement Transfer) for one (1) year following execution and delivery of IPA. --r ~~ a--+ c/'1 L aJ L Q U O ~ ~ ~ ~ N O ~ ~ ~ cn ~ cn c6 = O ~ ~ s ~ ~ U ~ ~ ~ z f6 cn N 'i N i ~ O ca ~ --, +~+ i Q O ~~wtr',UF~~i~v r~~° .;x, (~. ~~~~~ ~ nl .~ ~:, ~~4.. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing the City Manager to Enter into aFour-Month Lease for the Summer of 2011 and for Each of the Next Four Summers with Dolphin Run Condominium Association, Inc. for City-Owned Property Located at 3rd Street and Atlantic Avenue. MEETING DATE: May 24, 2011 ^ Background: The City of Virginia Beach (the "City") acquired a 0.09-acre parcel of property in the Rudee Loop area for future development. Dolphin Run Condominium Association, Inc. ("Dolphin Run") leased this small parcel of land from the previous owners to augment vehicular parking for guests staying at its establishment during the summer months. When the City acquired this land, it was understood that Dolphin Run desired to continue leasing the land each summer until the City was ready to use it for future City projects. This parcel will be used by Dolphin Run only. ^ Considerations: Each of the five (5) leases would be for a term of four (4) months, from May 15 to September 15 (the "Lease"). The City has athirty-day (30) termination clause in the event that City needs the land prior to the termination of each Lease. ^ Public Information: Advertisement of Public Hearing in The Virginian-Pilot, Beacon Advertisement of City Council Agenda ^ Alternatives: Approve Lease as presented, change conditions of the Lease or deny leasing of subject premises. ^ Recommendations: Approval ^ Attachments: Ordinance Summary of Terms Location Map Recommended Action: Approval Submitting Department/Agency: Public Works /Facilities Management Office ~-~ ) ~ ~' City Manager: ~. , 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 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO AFOUR-MONTH LEASE FOR THE SUMMER OF 2011 AND FOR EACH OF THE NEXT FOUR SUMMERS WITH DOLPHIN RUN CONDOMINIUM ASSOCIATION, INC. FOR CITY-OWNED PROPERTY LOCATED AT 3rd STREET AND ATLANTIC AVENUE WHEREAS, the City of Virginia Beach ("the City") is the owner of that certain 0.09 acre parcel of land located at 3rd Street and Atlantic Avenue, Virginia Beach, Virginia (GPIN: 2427-32-0138) (the "Premises"); WHEREAS, the City and Dolphin Run Condominium Association, Inc. ("Dolphin Run"), a Virginia non-stock corporation, desire to enter into a new lease agreement for use of the Premises; WHEREAS, Dolphin Run has agreed to pay the City $4,320 for use of the Premises from May 15 to September 15, 2011; WHEREAS, the City expects that it will enter into similar leases with Dolphin Run for each of the next four summers; and WHEREAS, the Premises will be utilized as an overflow parking lot for the registered guests of Dolphin Run, and for no other purpose. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Manager is hereby authorized to enter into afour-month lease for the summer of 2011 and for each of the next four (4) summers, between Dolphin Run Condominium Association, Inc. and the City of Virginia Beach, in accordance with the Summary of Terms attached hereto as Exhibit A and such other terms and conditions deemed necessary and sufficient to the City Manager and in a form deemed satisfactory to the City Attorney. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2011. CA11714 \\vbgov.com\dfs 1 \applications\citylawprod\cycom32\wpdocs\d002\p010\00018661.doc R-1 5/12/2011 APPROVED AS TO LEGAL SUFFICIENCY AND FORM Signature APPROVED AS TO CONTENT ~ ~~~ Signature ~~" ~ Depa ment EXHIBIT A SUMMARY OF TERMS OF EACH LEASE FOR 2011, 2012, 2013, 2014, 2015 LEASE FOR THE USE OF 0.09-ACRES OF CITY-OWNED PROPERTY LESSOR: City of Virginia Beach LESSEE: Dolphin Run Condominium Association, Inc. PREMISES: Approximately .09-acre parcel of City-owned property located at the intersection of 3rd Street and Atlantic Avenue (GPIN: 2427-32- 0138) TERM: Each lease will run from May 15 through September 15 RENT: $4,320 per four (4) month term RIGHTS AND RESPONSIBILITIES OF LESSEE: • Use the Premises for overflow parking for guests and for no other purpose. • Maintain the Premises from May 15 through September 15. • Maintain commercial general liability insurance coverage with policy limits of not less than one million dollars ($1,000,000) combined single limits per occurrence. • Maintain Automobile Liability Insurance including coverage for non-owned and hired vehicles in an amount not less than five hundred thousand dollars ($500,000) combined single limits. RIGHTS AND RESPONSIBILITIES OF CITY: May access the Premises at any time, without prior notice to Lessee, in the event of an emergency or public necessity. May require Lessee to surrender possession and control of the Premises to the City upon forty-eight (48) hours' prior notice if needed for public purposes. May grant easements and rights-of-way across the Premises for streets, alleys, public highways, drainage, and other similar purposes. TERMINATION: • The City may terminate the Lease upon thirty (30) days' prior written notice to Lessee. \\vbgov. com\dfs 1 \application s\citylawprod\cycom 32\wpdocs\d005\p011 \00018672.doc TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) Interstate - Primary Roads - Streets Parcel Water Bodies SC,~LE 1 ~ 1,767 F.ET i r TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) - Interstate - Primary Roads - Streets Parcel Water Bodies SCALE 1 ~ 1.767 r '~x _ 7C~_ 2@. ~~ fr FEET TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) - Interstate - Primary Roads - Streets Parcel Water Bodies SCALE 1 ~ 1,76 *ca _ tcc zx ~~ ~~ FEET I TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) Interstate - Primary Roads - Streets Parcel Water Bodies N SCALE 1 ~ 1.76 7 't'Y) _ 1~_C 2DG 3DD 7t FEET TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) - Interstate - Primary Roads - Streets Parcel Water Bodies SCALE 1 ~ 1,767 'CC _ iCC 2'.~' 3DD FEET r z l TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) 0.09 Acres at 3~d Street and Atlantic Avenue ~ `,~ ,- ~: ~f ~ ~ i s ~ ~~~ ~~'-~ ~~ ~~ r ~~ ~ ti ~' ~,.;..- ~ ' P~ a ~ ~ "~. ~~, .,~. ~.. SCALE 1 ' 1,767 •cc _ i_•_ zx ~a F.ET ~4 TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) Interstate - Primary Roads - Streets Parcel Water Bodies SCALE 1 ~ 1,767 ,~ iac zx spa ~/ FEET TO BE LEASED TO THE DOLPHIN RUN CONDOMINIUM ASSOCIATION BY THE CITY OF VIRGINIA BEACH (GPIN: 2427-32-0138) 0.09 Acres at 3rd Street and Atlantic Avenue - Interstate ~ ~ ~ ~~ ~~ - i ~ . ~ ~ , ~~ -Primary Roads i ~ _ - ••-~ }~ - Streets ` f lJ ~• ~ ~'' '~ * ' ~ # ~ ~' ~ ~. Parcel b ~` 4~ ~ Wate r Bodies ~~ ~ ^. , ~ ~>: ~ ~~, _ `4, i_ ~ ~s~ T ~: y .. I~ r ~ N ., ~~ ~ ~J~Y ~ ~ ~ m ~, ~- ~~ ~- ; ~~ ~, ~.,, ~ ~ _ ~~ ,~ ~. > '~ , . $ ., SC?,LE 1 ~ 1,767 1 r1:0 _ i~=~: ~_ 3ao FcET u•sp,~ 0 3 ~y~ ~~ ~ ~_ ~_, ~, ~,a ~" CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing the City Manager to Execute a Lease for Five Years or Less with BMZ USA, Inc. for the Use of a Commercial Property Located at 2656 Lishelle Place Together with the Building and Improvements MEETING DATE: May 24, 2011 ^ Background: The City acquired the property at 2656 Lishelle Place (the "Property") for the Oceana and Interfacility Traffic Area Conformity & Acquisition Program (CIP 9-060) to eliminate a 150-person call center. The Property was purchased for $1,687,500 in September 2008. The existing zoning is B-2. Economic Development has shown the Property consistently over the last 2 '/ years and has turned away several prospects because the user was determined to be non- conforming to the APZ-1 zoning ordinance or lost other prospects because the building was not a fit for a conforming user. The Property has been difficult to market to a compatible user because the improvements are not conducive for a light industrial type use. The feedback that Economic Development has received about the facility is that it would be too costly to retrofit due to the interior layout and dated exterior. There are no dock or grade level doors, and the first floor is comprised of office space. The facility is competing with newer, more affordable, flex office/warehouse space that would require less work within the other industrial parks that are within close proximity. Due to these challenges, Economic Development has been contemplating making improvements to the facility in order to make it functional for sale to a compatible user. In addition, the Virginia National Defense Industrial Authority (VNDIA), the entity that manages the grant agreement with the State, has agreed that such improvements would be considered an acceptable expenditure and therefore qualify for 50% reimbursement. BMZ USA Inc. proposes leasing the Property for five years; however, BMZ will have a right to terminate after three years. BMZ will be operating abattery-pack assembly, sales and distribution facility that will also serve as their U.S. headquarters. The company will import lithium ion battery cells that will be assembled into plastic packs for a variety of portable equipment (power tools, medical devices, communications equipment, etc). The facility will employ up to 10-15 people initially. This is a compatible use under the City Zoning Ordinance. ^ Considerations: The Property will be retrofitted through an EDIP grant to BMZ. BMZ will pay the City rent, beginning at $81,675 annually (triple net; 3% escalator), which will offset the City's cost to retrofit the building. BMZ will be responsible for all normal maintenance and repairs. ^ Revenue restriction: The City funded the acquisition of the property through the partnership with the Commonwealth of Virginia, with each party contributing fifty percent (50%) of the funds. Per the partnership agreement, fifty percent (50%) of the lease revenue will be refunded to the Commonwealth. A manual encumbrance will be established to ensure that the funds retained by the City will be available for property acquisition in future years, per agreement with the Commonwealth. ^ Public Information: Advertisement of Public Hearing Advertisement of City Council Agenda ^ Alternatives: Approve terms of the Lease Agreement as presented, alter terms of the proposed Lease Agreement or decline to lease the Premises. ^ Recommendation: Approval ^ Attachments: Ordinance, Summary of Terms, Location Map Recommended Action: Approval Submitting Department/Agency: City Manager: S k Economic Development /City Attorney's Off' i ~. N ~ ~ ~ o ;3 V\ ~^`~ v ~ N ~~ ~ -- Q ~ r ~%' ~a~ ~ ~, ~ .~~,~ ~, ~ ~;~ Z __ ~n ~~ ,~ o~z o i ~\ ~ ~ N ~ ,~ ~,\\ i O ~ \ ~ ~ ~~~ ,, ~ ~ i ~_ /, ~ t0 ~ ` . d' a ~ _... ~1 ~~ ~~`~% ~ I /,, ~~~ '~S ~tY~~ `~ ~~ ~ %~ ~~,. .~. ~_,> ~' .~,,' %~ wv ~. ~ _ _ ~.r~'v LONDON BRIDGE RD ~ ~ L ~~ -- a = LYNNHAVEN PW ~,~ ~ -~ Ii. ~ N L ~,~ ~ , !/ N ~a ,~, .~ N N ~ NN"''~~ GILES 'a U Q Q U ~~ ~' ~ c as 0 1 ~P~ ~ y J ~'®~ 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A LEASE FOR FIVE 3 YEARS OR LESS WITH BMZ USA, INC. FOR 4 THE USE OF A COMMERCIAL PROPERTY 5 LOCATED AT 2656 LISHELLE PLACE 6 TOGETHER WITH THE BUILDING AND 7 IMPROVEMENTS 8 9 WHEREAS, the City of Virginia Beach (the "City") is the owner of that certain 10 parcel of land, with all improvements thereon, located at 2656 Lishelle Place, and 11 shown on Exhibit A attached hereto (the "Premises"); 12 13 WHEREAS, City staff has determined that the proposal of BMZ USA, INC. 14 ("BMZ") set forth the best reuse of the Premises; 15 16 WHEREAS, BMZ proposes to lease the Premises for a period of five (5) years or 17 less; 18 19 WHEREAS, the Premises will be utilized for the assembly, wholesale distribution, 20 and/or research and development related to batteries; 21 22 WHEREAS, BMZ's proposed use of the Premises is a compatible use under the 23 City's Zoning Ordinance; and 24 25 WHEREAS, prior to occupancy of the Premises, BMZ will make certain 26 alterations to the Premises as set forth in the Summary of Terms, attached hereto as 27 Exhibit B. 28 29 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 30 OF VIRGINIA BEACH, VIRGINIA: 31 32 That the City Manager is hereby authorized to execute a lease for the term for 33 five (5) years or less with BMZ, USA Inc. for the Premises in accordance with the 34 Summary of Terms, and such other terms, conditions or modifications deemed 35 necessary and sufficient by the City Manager and in a form deemed satisfactory by the 36 City Attorney. 37 38 Further, that the lease revenue shall be received and appropriated to CIP #9- 39 060, Oceana and Interfacility Traffic Area Conformity and Acquisition, of which fifty 40 percent (50%) shall be reserved for the purpose of the City Manager refunding the 41 Commonwealth's portion in accordance with the grant agreement. A manual 42 encumbrance will be established to ensure that the lease revenue retained by the City 43 will be available for BRAC program acquisitions in future years per the agreement with 44 the Commonwealth. 45 46 This ordinance shall be effective from the date of its adoption. 47 48 49 Adopted by the Council of the City of Virginia Beach, Virginia on the day of .2011. APPROVED AS TO LEGAL SUFFICIENCY AND FORM L'.~ _ . Ci y At ey APPROVED AS TO CONTENT APPROVED AS TO CONTENT conomic Developm ~~~~~. ~ Management Services CA11701 \\vbgov.com\dfs] \applications\citylawprod\cycom32\wpdocs\d011 \p011\00019462.doc R-1 May 11, 2011 EXHIBIT A ALL THAT certain piece or parcel of land, with the buildings and improvements thereon and the appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, being known, numbered and designated as Parcel A-9, 1.572 ACRES as shown on that certain plat entitled, "SUBDIVISION OF PARCEL A-8 AND A-9, LYNNHAVEN SQUARE (D.B. 2511 P. 1657) (M.B. 172, P. 36) PRINCESS ANNE BOROUGH- VIRGINIA BEACH, VIRGINIA", dated May 1987, and made by Basiger and Associates, which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2655, at page 1740. IT BEING the same property conveyed to the City of Virginia Beach by deed from Rusmil Properties, LLC, a Virginia limited liability company, dated September 4, 2008, duly recorded in the aforesaid Clerk's Office as Instrument Number 20080924001122040. EXHIBIT B SUMMARY OF TERMS LESSOR: City of Virginia Beach LESSEE: BMZ USA, Inc. PREMISES: 16,500+/- square feet of space on a 1.54 acre lot located at 2656 Lishelle Place, Virginia Beach, VA (GPIN 1496-54-4149) TERM: Five (5) years RENT: Year 1: $81,675 NNN Year 2: $84,125 NNN Year 3: $86,649 NNN Year 4: $89,248 NNN Year 5: $91,926 NNN PROPOSED USE: Lessee shall use the Premises for the assembly, wholesale distribution, and/or research and development related to batteries, primarily lithium ion batteries. The use shall include the assembly of various battery units, the manufacturing of plastic housing and wiring components, and/or the assembly and distribution of finished battery units. RIGHTS AND RESPONSIBILITIES OF LESSEE: • Prior to occupancy, Lessee will construct improvements to the Premises. • Lessee shall be responsible for the cost of all normal maintenance and repairs to building. • Lessee to maintain liability and other insurance to satisfaction of City. • Lessee shall have the right to terminate after three (3) years. RIGHTS AND RESPONSIBILITIES OF LESSOR: • Lessor has the right to retain any improvements at the end of the term. n~,N o~nf ] ti,N '...^' ~_' ~ T fG._ .P )} <~ .r} C.' ~! =l *~. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance declaring the property located at 1732 Virginia Beach Boulevard (GPIN 2407-75-6918) to be in excess of the City's needs and authorizing the City Manager to sell the property to Sakkadas Enterprises, Inc. MEETING DATE: May 24, 2011 ^ Background: The City acquired the property at 1732 Virginia Beach Boulevard on June 8, 2010 (the "Property"). The City needed to acquire 831 square feet of property and easements for the First Colonial RoadNirginia Beach Boulevard Intersection Improvements (CIP 2-072). The owner then offered to sell the entire property, and it was ultimately purchased as part of the Oceana and Interfacility Traffic Area Conformity & Acquisition Program (CIP 9-060) in order to reduce the incompatible use of a bar. The property and improvements were purchased for $567,800. The APZ-1/CZ Master Plan has designated the area as non-residential and appropriate for compatible uses under the AICUZ guidelines. The APZ-1 Disposition Committee has evaluated the parcel (less the area and easements needed for the road project) and determined that it should be sold and developed with a compatible use. Sakkadas Enterprises, Inc. ("Sakkadas") proposes to acquire 1732 Virginia Beach Boulevard to assemble with 1730 Virginia Beach Boulevard, which it currently has under contract to purchase. The two parcels will then be developed for Elite Motors, an automotive sales dealership. A 3,000+/- square foot sales/show room facility and a 6,000+/- square foot auto and collision/body repair service facility will be constructed according to City-approved design criteria. Sakkadas has also agreed to dedicate the right-of-way and easements needed for the First ColonialNirginia Beach Boulevard Intersection Improvements that are located on the privately owned adjacent property at 1730 Virginia Beach Boulevard. ^ Considerations: The site shall be used for automotive sales and repair. The proposed use is compatible with Section 1804 of the City Zoning Code. The agreement of sale shall have specific design criteria, which shall be incorporated as a deed restriction at closing. ^ Public Information: Advertisement for public hearing as required by Section 15.2-1800 Code of Virginia and advertisement of City Council Agenda. ^ Alternatives: Retain ownership of the land. ^ Recommendations: Approve the request and authorize the City Manager to execute all necessary documents to convey the property subject to the terms and conditions in the attached Summary of Terms and .such other terms, conditions or modifications as may be satisfactory to the City Council. ^ Revenue restriction: The City funded the acquisition of the property through the partnership with the Commonwealth of Virginia, with each party contributing fifty percent (50%) of the funds. Per the partnership agreement, fifty percent (50%) of the proceeds from the sale will be refunded to the Commonwealth. A manual encumbrance will be established to ensure that the funds retained by the City will be available for property acquisition in future years, per agreement with the Commonwealth. ^ Attachments: Ordinance, Location Map, Summary of Terms Recommended Action: Approval of the ordinance } Submitting De»artmentlAgency: Economic Devel~~ City Manager. ~ ~ ~~~ ~1'~ ~ cD C1 D D C7 Q ~D ~ ~ ,=r ~ N ~ ~ N C O ~ ~ ~ cD ~ LI ~ i ~ O V W N ~~ ~ r z~'n o ~~'a o~~ V ~ 0 :v n Z ' v ~ ~ a' W D a N O ~ ~ ~ ~ O ~l ~ ~ _ (p ~ o f ~ Q _< _~ Z D D n ~ 1 r 1 r~ f ~--- _~_ i,~ d s: 1 N A O y V ~ ~~ '.~'I r.. 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 44 45 AN ORDINANCE DECLARING THE PROPERTY LOCATED AT 1732 VIRGINIA BEACH BOULEVARD (GPIN 2407-75- 6918) TO BE IN EXCESS OF THE CITY'S NEEDS AND AUTHORIZING THE CITY MANAGER TO SELL THE PROPERTY TO SAKKADAS ENTERPRISES, INC. WHEREAS, the City of Virginia Beach (the "City") is the owner of a parcel of land located at 1732 Virginia Beach Boulevard, and further described on Exhibit A attached hereto and made a part hereof (the "Property"); WHEREAS, the City acquired the Property pursuant to the Oceana and Interfacility Traffic Area Conformity & Acquisition Program (CIP 9-060); WHEREAS, the City funded the acquisition of the APZ-1 purchase through a partnership with the Commonwealth of Virginia (the "Commonwealth"), with each party contributing fifty percent (50%) of the purchase price; WHEREAS, the Property is in an area designated for non-residential use in the APZ-1/Clear Zone Master Plan adopted by Council on April 1, 2008; WHEREAS, the APZ-1 Disposition Committee has recommended that City Council declare the Property to be in excess of the City's needs and sell the Property to Sakkadas Enterprises, Inc. ("Sakkadas"); WHEREAS, Sakkadas will construct a new automotive sales and repair facility on the Property to prescribed standards acceptable to the City, which is a use compatible with Section 1804 of the City Zoning Code; WHEREAS, Sakkadas will purchase the Property in accordance with the Summary of Terms attached hereto as Exhibit B and made a part hereof; and WHEREAS, the City Council is of the opinion that the Property is in excess of the needs of the City of Virginia Beach. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the Property described on Exhibit A is hereby declared to be in excess of the needs of the City of Virginia Beach and that the City Manager is hereby authorized to execute any documents necessary to convey the Property to Sakkadas Enterprises, Inc., in substantial conformity with the Summary of Terms attached hereto as Exhibit B and such other terms, conditions or modifications as are deemed necessary and sufficient by the City Manager and in a form deemed satisfactory by the City Attorney. 46 Further, that the revenue from the sale of the Property in the amount of 47 $240,000 shall be received and appropriated to CIP #9-060, Oceana and Interfacility 48 Traffic Area Conformity and Acquisition, of which fifty (50) percent shall be reserved for 49 the purpose of the City Manager refunding the Commonwealth's portion in accordance 50 with the grant agreement. A manual encumbrance will be established to ensure that the 51 $120,000 retained by the City will be available for BRAC program acquisitions in future 52 years per the agreement with the Commonwealth. 53 54 This ordinance shall be effective from the date of its adoption. 55 56 Adopted by the Council of the City of Virginia Beach, Virginia, on the 57 day of , 2011. 58 CA11705 PREPARED: 5/11/11 R-1 \\vbgov.com\dfsl \applications\citylawprod\cycom32\wpdocs\d011 \p011 \00019495.doc AP ROVED AS TO CONTENT E mic Development APPROVED AS TO LEGAL SUFFICIENCY Cit A or y APPROVED AST CONT NT ~_ Management Services FXHIRIT A ALL THAT certain lot, tract or parcel of land together with improvements thereon belonging, lying, situated and being in the City of Virginia Beach, Virginia and designated and described as Parcel 35, bounded on the north, south, east and west by the lines marked "PROPOSED ACQUISITION LINE" and being further designated and described as "NOW OR FORMERLY P.E. ABIOUNESS, II INST. NO. 20081009001184310 M.B. 16, PG. 62 GPIN 2407-75-6918" and being further designated and described in the area table as "TOTAL AREA GPIN 2407-75-6918 27,492 SQ. FT. 0.6311 ACRES", and the balance of Parcel 35 designated and described in the area table as "RESIDUAL PROPERTY TO BE ACQUIRED 26,661 SQ. FT. 0.6121 ACRES", as shown on that certain plat entitled: "PLAT SHOWING RIGHT OF WAY AND RESIDUAL PARCEL TO BE ACQUIRED FROM P. E. ABIOUNESS, II BY THE CITY OF VIRGINIA BEACH FOR FIRST COLONIAL ROAD/VIRGINIA BEACH BOULEVARD INTERSECTION IMPROVEMENTS (CIP 2- 072) VIRGINIA BEACH, VIRGINIA SCALE: 1" = 30' DATE: SEPT. 2, 2009" prepared by Patton Harris Rust & Associates, Inc., which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument No. 20100421000369300, to which reference is made for a more particular description. LESS AND EXCEPT and reserving to the City that certain right-of-way designated and described as "PROPERTY TO BE ACQUIRED FOR RIGHT OF WAY PURPOSES 831 SQ. FT. OR 0.0191 AC.", and further described as "PROPERTY TO BE ACQUIRED FOR RIGHT OF WAY PURPOSES 831 SQ. FT. 0.0191 AC." on the aforesaid plat. LESS AND EXCEPT and subject to that certain permanent right and easement to use the additional area designated and described as "PROPOSED PERMANENT DRAINAGE EASEMENT TO BE ACQUIRED 792 SQ. FT. OR 0.0182 AC." and being further designated and described as "PROPOSED PERMANENT DRAINAGE EASEMENT TO BE ACQUIRED 792 SQ. FT. 0.0182 ACRES", as shown on the aforesaid plat, being required for the proper construction and maintenance of drainage facilities. LESS AND EXCEPT and subject to that certain utility easement with Dominion Virginia Power recorded in the aforesaid Clerk's Office as Instrument Number 20100219000160370. LESS AND EXCEPT all right, title and interest in and to the streets, alleys, and other rights-of-way abutting said Property, and all easements of any description and rights of ingress and egress benefiting such Property. IT BEING a part of the same property conveyed to the City of Virginia Beach by Peter E. Abiouness, II (A/IVA P.E. Abiouness, II) by deed dated April 23, 2010 and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 20100608000561340. EXHIBIT B SUMMARY OF TERMS SALE OF EXCESS PROPERTY AT 1732 VIRGINIA BEACH BOULEVARD SELLER: City of Virginia Beach PURCHASER: Sakkadas Enterprises, Inc., a Virginia corporation PROPERTY: 1732 Virginia Beach Boulevard, GPIN: 2407-75-6918, less areas to be reserved for right-of--way and easements as more particularly described on the attached Exhibit A to the Ordinance. SALE PRICE: 1) $240,000 for 1732 Virginia Beach Boulevard; and 2) Dedication of the 942 sq. ft. right-of--way, 1,884 sq. ft. drainage easement and 1,997 sq. ft. utility easement from 1730 Virginia Beach Boulevard as shown on Attachment 1 to this Exhibit CONDITIONS OF SALE • The Property shall be subdivided at the Purchaser's expense in order to join the Property with the adjacent parcel, vacate the interior lot line, and dedicate the necessary right-of--way and easements. • The Purchaser shall construct a 3,000+/- square foot sales/showroom facility and a 6,000+/- square foot auto and collision/body repair service facility. • The Purchaser shall submit a site plan for review and approval by the Planning Department prior to settlement. • The City retains a right to repurchase the property, less the deposit, if Purchaser does not construct within 24 months of settlement. • The Purchaser will conform to restrictive covenants and design criteria regarding use, construction, materials, signage, parking, and landscaping. ATTACHMENT 1 U ~ `~ ~ z 8 S~~ o~ g B ~~ ~ zoo ry S yy R W~ ~k ~~ ~gk 4 ~ a ~~~~~ ~ ~r~ ~~o ~~ ~ s ~ $ a ~ ~~m ~~ ~g ~~~ ~~~ O ~~~~~~4~^ ~~ ~~o G ~a~ ~~a ~~ w_ x~a ~ ~~ ~ W~~s _~ a ^~ ~ 4 ~~g ~a~~^~~ 0 ~ ~~~~~_~ 0 ~Q~B ~ W.~L ~. as.~ ELI ani E r ~ (3ro1 3lwvua .a) 3 m A = ~ ~ a+ro2~ a 8NV'I eU183HA{IH o $° ~n z ~1NIA s _ fv NS_JW ~~ ~~ObvJ ~~m- ~o ~~ ~ ~ I I ~ ~ mI~ • qNO~ gg~~++ ~ Y G k5~8~ E~ ~~S ~'" s BByy 5~a oQ$ ~~z'6' 'S2 zs ~$ ~: •m ok8 3m R~ z ~~~ Z v ~((' ~ I VLL C ~ k 1, ~ I&1 ~ ~I~ ~ ~ ;= ' WfzoL Y ~ ~ Y ~ ~` 2 ~ ~f{t4 '~ o ~~, a6 i... ^,OGC L ~ ~~ ~~g ml Sg ~° Jl S ~ & a ~Q ~ &_ ~_ w g a Wgr~n ~ r W ~~ O~a~e ~ ~ ~ 9 8W 8,,, 5~ Sao=~ ~ R ~ ~ ~ ~~ ~ ~ ~ ~~ ~ ~~ o ~G ~ ~ W GK U ~.$ r e 61 ~~ ~ ~ ~ ~ ~ ~ '~~ ~:~3~5d u .~ 8$ ~ & e sm~~ 9 b~ bgu m ~ai e 8i ~ z~ ~ ~a~o ~L~ ~~ & ~ o~S€~~ 4 ~ e ~~ ~o ~ ~ ~~~~ ~~ ~~ ~ ~~ ~y~~c d ~A~ as ~ ~~ ~ ~ ~ ~°~~ i~~ ~ ~ ~~ i~~x~ ~ a~vn. ~ ~k a ~3m ~ ~ e - ~€~~ a~~ ~~ ~ ~~~ §~~~~ s x ~ ~ ge o a z ~ s ~~s ~ ~~~ ~<s~6 ~ ~ a~ ~s ~ ~. ~p na ~€ - ,3,3 rA'B~~ 1 ~~N Nh H~ J ~M, (i1.- ~F j3'~ 4`1,,tiu„~~~a> CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution to Approve the Award of $708,746 in Economic Development Investment Program Funds to BMZ USA, Inc. by the City of Virginia Beach Development Authority MEETING DATE: May 24, 2011 ^ Background: Pursuant to the Oceana and Interfacility Traffic Area Conformity and Acquisition Program (CIP 9-060), on September 24, 2008 the City purchased the property located at 2656 Lishelle Place (the "Property"). The Property is located in APZ-1. Since the purchase of the Property, staff has been attempting to locate a new user for the Property in either a lease or sale scenario. A major challenge in locating a new user of this former call center has been the layout and condition of the building on the Property. Substantial investment in the building is necessary to make it suitable for reuse as a compatible use, including rehabilitation of the roof and extensive interior build-out. BMZ USA, Inc. ("BMZ") is a German-based manufacturer of batteries for industrial use. BMZ has agreed to relocate a portion of its operation to Virginia Beach, and has agreed to lease the Property if BMZ is provided with sufficient funds to upgrade the condition and layout of the Property. Although BMZ's proposed use of the Property is compatible with the APZ-1 Ordinance and would otherwise qualify for an award of funds under Part "C" of City Council's Economic Development Investment Program Policy and Procedure (the "EDIP"), it does not qualify for an award large enough to incentivize BMZ's lease of the Property because the retrofit of the building is extensive. Under the EDIP, BMZ would qualify for $74,340. City Council approval is required to make an award of EDIP funds that is in excess of what is allowed under the EDIP. ^ Considerations: The funds requested would be used by BMZ for expenses associated with the construction of improvements to the Property. The proposed lease of the Property is for a term of five (5) years. At the end of the term, the City would own all of the improvements made with the EDIP funds requested by BMZ. The funds requested would not come from the general EDIP funds appropriated to the City of Virginia Beach Development Authority (the "Development Authority") but rather from the APZ-1 Funds jointly appropriated by the City and the Commonwealth of Virginia ("Commonwealth"). Under the terms of the City's grant agreement with the Commonwealth, the Commonwealth would reimburse the City for half of the funds awarded to BMZ. At its May 17, 2011 meeting, the Development Authority conditionally approved this award, subject to approval by City Council. ^ Public Information: All public information will be handled through the normal agenda process. ^ Recommendations: Approval of the provision of EDIP funds to BMZ by the Development Authority. ^ Attachments: Resolution Location Map Recommended Action: 4 Submitting Department/Agency: Econo1m~ic Develop City Manager: l~ ,~"~" Z t A RESOLUTION TO APPROVE THE AWARD OF 2 $708,746 IN ECONOMIC DEVELOPMENT 3 INVESTMENT PROGRAM FUNDS TO BMZ USA, 4 INC. BY THE CITY OF VIRGINIA BEACH s DEVELOPMENT AUTHORITY 6 ~ WHEREAS, under the City's Economic Development Investment Program (the s "EDIP"), the City Council authorizes the City of Virginia Beach Development Authority 9 ("Authority") to make awards, on the terms and conditions as set forth in the EDIP, to io qualified businesses for the purpose of retaining NAS Oceana as a master jet base; ii 12 WHEREAS, if the Director of Economic Development and the Authority 13 determine that an award of EDIP funds would be consistent with the intent of the EDIP 14 and is in the best interests of the City of Virginia Beach (the "City"), but such award is does not meet the requirements of the EDIP, the Authority must seek City Council i6 approval prior to making such an award; t~ i8 WHEREAS, BMZ USA, Inc. ("BMZ") is a German-based manufacturer of 19 batteries used for industrial purposes. BMZ has agreed to relocate a portion of its 20 operation to the City of Virginia Beach; 21 22 WHEREAS, City staff and BMZ have identified a parcel of City-owned property, 23 located within APZ-1 at 2656 Lishelle Place, for the relocation of a portion of BMZ's 24 operation (the "Property"). BMZ has agreed to lease the Property from the City. As 2s currently configured, the Property is not suitable for use by BMZ and BMZ has 26 requested funds from the City to retrofit the Property; 27 2s WHEREAS, BMZ's proposed use of the Property is consistent with the City's 29 Oceana and Interfacility Traffic Area Conformity and Acquisition Program (CIP 9-060) 3o and would qualify for an award under Part "C" of the EDIP. However, to accomplish the 31 necessary retrofit of the building on the Property, BMZ has requested an award of 32 $708,746, which is in excess of what is authorized under the EDIP; and 33 34 WHEREAS, the Authority is not authorized to make an award in excess of what 3s is allowed under the EDIP without authorization from City Council. The Authority and 36 the Director of Economic Development are of the opinion that the proposed award to 37 BMZ would further the goals of the EDIP, including promotion of economic development 3a aimed at the retention of NAS Oceana as a master jet base. 39 4o NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 41 VIRGINIA BEACH, VIRGINIA: 42 43 1. The City of Virginia Beach Development Authority (the "Authority") is 44 hereby authorized to make an award of Economic Development Investment Program 4s ("EDIP") funds in the amount of $708,746 to BMZ USA, Inc. ("BMZ") to offset the 1 46 47 48 49 so 51 52 53 54 expenses associated with the retrofitting of the building located at 2656 Lishelle Place in the City of Virginia Beach. 2. The award of EDIP funds to BMZ shall be on such terms and conditions as deemed appropriate by the Chair of the Authority and deemed legally sufficient by the City Attorney. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2011. APPROVED AS TO CONTENT: w ,{ r "i r (~ Dept. of Economic Development CA11720 \\vbgov.com\dfs I \applications\citylawprod\cycom32\Wpdocs\D003\P005\00023886.DOC R-1 May 13, 2011 APPROVED AS TO LEGAL SUFFICIENCY: -~ ,= .:=- ~- City Attorney's Office 2 u ' ~ ~ y ' n D D n a S3~IJ ~D ~ ~ rr ~ N ~ ~ .. N ~ O G ~ ~ ~D ~ ~- ~ - e 0 ;~~_ ,, J i ~~~~ tiF~~ .._, ~q ~S~. 5' O N i O Z ~ ~ cA D '- ~ o~ cc O ~~ to ~ Z ~~~ _..H v - ~ ~ ~ ~ ~ ., o ~ ~ o~ rn ~~ ^~~ ~~ „a .I c~ A A A t0 " i ~a ~~U Bfgt.~ ,.^e . cy. ~ ~ ~~7 rc e`~ ~} .. ~4 +• I `, __- ..J I l ` .• CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Establishing a Process Improvement Steering Committee MEETING DATE: May 24, 2011 ^ Background: The severe recent worldwide economic downturn has resulted in an uncertain future which presents serious and fundamental challenges to the relationships between governmental entities and the people they serve, as well as intergovernmental relationships on the local, state, and federal levels. These difficult times have exposed the need for a transformation of government on all levels into governments that work better and cost less. The City must make changes that improve processes, improve communications within the various aspects of City government and between the City government and the people it serves, and develop contingency plans to address a variety of situations that could adversely affect our citizens. In order to best address these challenges, the City needs to engage our citizens, City staff, business and community leaders, and subject matter. ^ Considerations: This resolution would establish an eight-member Process Improvement Steering Committee to gather information regarding the broad range of issues identified above and to present City Council with data, scenarios, and potential contingency plan options for its consideration. The tasks of the committee include: obtaining input from citizens, staff, colleges and universities, and subject matter experts regarding process improvement through surveys, town hall meetings, focus groups and/or other means; developing an inventory of situations and scenarios that the City may face in the future, along with options and contingency plans to address those situations; and developing an inventory of subject matter experts and establishing targeted ad hoc committees as needed to address individual issues. The committee's first charge would be to develop a plan of action to accomplish these tasks, and the committee would report that plan to City Council no later than the last City Council meeting in June, so the committee may obtain guidance from City Council and may begin its work in earnest in July. The committee would report back to City Council with its initial findings no later than the last City Council meeting in December. ^ Public Information: Public information will be provided through the normal Council agenda process. ^ Attachments: Ordinance. Requested by Mayor Sessoms, Vice-Mayor Jones, Councilmembers Bellitto, Davis, DeSteph, Diezel, Dyer, Uhrin, Wilson and Wood REQUESTED BY MAYOR SESSOMS, VICE-MAYOR JONES, COUNCILMEMBERS BELLITTO, DAVIS, DESTEPH, DIEZEL, DYER, UHRIN, WILSON AND WOOD 1 A RESOLUTION ESTABLISHING A PROCESS 2 IMPROVEMENT STEERING COMMITTEE 3 4 WHEREAS, the severe recent worldwide economic downturn has resulted in an 5 uncertain future which presents serious and fundamental challenges to the relationships 6 between governmental entities and the people they serve, as well as intergovernmental 7 relationships on the local, state, and federal levels; and 8 9 WHEREAS, these difficult times have exposed the need for a transformation of 10 government on all levels into governments that work better and cost less; and 11 12 WHEREAS, the City must make changes that improve processes, improve 13 communications within the various aspects of City government and between the City 14 government and the people it serves, and develop contingency plans to address a variety 15 of situations that could adversely affect our citizens; and 16 17 WHEREAS, the City needs to engage our citizens, City staff, business and 18 community leaders, and subject matter experts to address these critical needs. 19 20 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 21 VIRGINIA BEACH, VIRGINIA: 22 23 1. That the City Council hereby establishes an eight-member Process 24 Improvement Steering Committee to gather information regarding the broad range of 25 issues identified above and to present City Council with data, scenarios, and potential 26 contingency plan options for its consideration. 27 28 2. That the committee shall serve in an advisory capacity to City Council, and 29 City Council shall appoint its members and chairperson. 30 31 3. That the tasks of the committee shall include: 32 Obtaining input from citizens, staff, colleges and universities, and 33 subject matter experts regarding process improvement through 34 surveys, town hall meetings, focus groups and/or other means; 35 Developing an inventory of situations and scenarios that the City may 36 face in the future, along with options and contingency plans to 37 address those situations; and 38 Developing an inventory of subject matter experts and establishing 39 targeted ad hoc committees as needed to address individual issues. 40 41 4. That the committee's first charge shall be to develop a plan of action to 42 accomplish these tasks, and the committee shall report that plan to City Council no later 43 than the last City Council meeting in June so the committee may obtain guidance from City 44 Council and may begin its work in earnest in July. 45 46 5. That the committee shall report back to City Council with its initial findings no 47 later than the last City Council meeting in December. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of 2011. APPROVED AS TO LEGAL SUFFICIENCY: i~~ /d City Attorney's ~ce CA11859 R-3 May 19, 2011 S~'~w e.~ ~~ F~ ~'> ~s3 ~= _ _ s~~ ~`,,`~~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Redefine the Scope of a Capital Improvement Project # 3-087 CIT -HNP Field Automation Analysis MEETING DATE: Mav 24. 2011 ^ Background: Capital Improvement Project # 3-087 CIP -HNP Field Automation Analysis ($136,000) was established to study the implementation of a wireless field reporting system for Code Enforcement in the Department of Housing and Neighborhood Preservation (DHNP). At the time the study was requested, mobile field technology in the City was not as mature as it is today. By the time DHNP's project began, the Planning Department had already begun implementing Accela Wireless for field reporting. DHNP has determined that the field automation solution provided by Accela would meet its needs without a study. ^ Considerations: Because of the decision to use the same mobile field solution as Planning, the funds that would be used for a study can be redirected to purchase field computer technology. This technology will greatly increase productivity of the inspectors. DHNP estimates the average time in the field for inspectors will increase from approximately six hours a day to approximately seven-and-three quarters. This implementation will also streamline and/or eliminate certain data entry processes. This anticipated increase in efficiency will help offset the loss of two positions in the previous two budget cycles. Additionally, DHNP will continue monitor efficiencies in the event that this technology will allow future changes in the deployment of departmental resources. ^ Public Information: Public information will be coordinated through the regular Council agenda notification process. ^ Recommendations: Approval of attached ordinance. ^ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Housing and Neighborhood Preservation~~ City Manager. ~.. 1 2 3 4 5 6 7 8 9 10 AN ORDINANCE TO REDEFINE THE SCOPE OF CAPITAL IMPROVEMENT PROJECT # 3-087 CIT - HNP FIELD AUTOMATION ANALYSIS BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the scope of Capital Improvement Project # 3-087, CIT - HNP Field Automation Analysis, is hereby redefined to include the purchase of computer equipment and related peripheral equipment. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2011. Requires an affirmative vote by a majority of all the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: U 1, Management Services ney s Office CA11876 R-1 May 12, 2011 ~Kw ~'"~~ O .. F~ ~-~_; <~ .~ ~ s~ 4 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate Federal Grant Funds to Capital Improvement Project # 4-075 to Reimburse the City for a Portion of the Costs of Constructing the Providence Road Overpass Sidewalk MEETING DATE: May 24, 2011 ^ Background: In September 2009, the Department of Parks and Recreation applied to the Federal Highway Administration for grant funding for the development of pedestrian/bike and transit systems to improve neighborhood connectivity. On December 18, 2009, the City was awarded a $150,000 reimbursement grant from the Federal Highway Administration for the project known as Providence Road Overpass Sidewalk. ^ Considerations: The Providence Road Overpass Sidewalk was completed in May 2010. The grant reimburses the City, and it does not have a local match. The funds will be appropriated to Capital Improvement Project # 4-075, Pedestrian System Improvements -Phase I. ^ Public Information: Public information will be coordinated through the regular Council agenda notification process. ^ Recommendations: Accept and appropriate grant funding to the CIP. ^ Attachments: Ordinance Recommended Action: Approval Submitting DepartmentlAgency: Department of Parks and Recreation City Manager: IL .~~'1, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 AN ORDINANCE TO ACCEPT AND APPROPRIATE FEDERAL GRANT FUNDS TO CAPITAL IMPROVEMENT PROJECT # 4-075 TO REIMBURSE THE CITY FOR A PORTION OF THE COSTS OF CONSTRUCTING THE PROVIDENCE ROAD OVERPASS SIDEWALK BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $150,000 in grant funds are hereby accepted and appropriated, with federal revenues increased accordingly, to CIP # 4-075, Pedestrian System Improvements - Phase I to reimburse the City for a portion of the costs of constructing the Providence Road Overpass Sidewalk. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2011. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: ~ n ~ l~ Management Services APPROVED AS TO LEGAL SUFFICIENCY: l n s Office CA11873 R-1 May 11, 2011 fC~: r ._,P ~7 i=: ~.. :tx ~~ ~i '1 :~ I.. ~~."_i CITY OF VIRGINIA BEACH AGENDA ITEM_ ITEM: An Ordinance to Accept and Appropriate State Grant Funds to Capital Improvement Project #4-070 to Reimburse the City for Land Acquisition Adjacent to the Adam Thoroughgood House MEETING DATE: May 24, 2011 ^ Background: On January 7, 2009, the City was awarded a $425,000 grant from Virginia Land Conservation Foundation to reimburse one-half of the May 2007 purchase of a 2.5 acre site adjacent to the Adam Thoroughgood House. The acquisition effectively expanded the adjacent land area by over 50% from 4.25 acres to 6.75 acres, further preserving the context of the Adam Thoroughgood House, a National Historic Landmark. The site also has the potential for archeological resources and will provide public canoe/kayak water access to the Lynnhaven River. ^ Considerations: This grant was awarded over atwo-year period, and City Council appropriated the first portion of the grant in April 14, 2009. The City has received the total amount of the grant revenue, but the first and second year amounts varied from the initial award. This ordinance appropriates the remaining $208,695 in grant funding to Capital Improvement Project # 4-070, Open Space Site Acquisition - Phase II. ^ Public Information: Public information will be coordinated through the regular Council agenda notification process. ^ Recommendations: Accept and appropriate grant funds. ^ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Department of Parks and Recreation City Manage S 1 2 3 4 5 6 7 8 9 10 11 12 13 AN ORDINANCE TO ACCEPT AND APPROPRIATE STATE GRANT FUNDS TO CAPITAL IMPROVEMENT PROJECT #4-070 TO REIMBURSE THE CITY FOR LAND ACQUISITION ADJACENT TO THE ADAM THOROUGHGOOD HOUSE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $208,695 in state grant funds are hereby accepted and appropriated, with state revenues increased accordingly, to CIP # 4-070, Open Space Site Acquisition - Phase II to reimburse the City for the acquisition of land adjacent to the Adam Thoroughgood House. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2011. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~~ . ~ ~~ p .LPL! Management Services y's O ice CA11872 R-1 May 11, 2011 ~u e~ «- ro~~ y~+ ~~ x it~l-~ ~r (V, :~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate Grant Funds from the United States Department of Homeland Security to the FY 2010-11 Operating Budget of the Fire Department MEETING DATE: May 24, 2011 ^ Background: The City of Virginia Beach is the sponsoring agency for the Virginia Task Force 2 Urban Search and Rescue Team (VA-TF2). The Federal Emergency Management Agency (FEMA), the emergency preparedness branch of the Department of Homeland Security, provides funding for VA-TF2 under a cooperative agreement. The purpose of this agreement is to continue the development and maintenance of the nation's Urban Search and Rescue Teams. Specifically, this agreement provides a mechanism for distribution of grant funding for 28 Task Forces to for training, equipment, and administration. The program has reached a point where this level of funding is critical to its continuity as a viable program. Both personnel and equipment resource demands have far exceeded the capacity of the sponsoring agency to cover support costs. FEMA assistance is necessary to maintain VA -TF2 at required performance levels. For FY 2010-11, FEMA has previously awarded the VA-TF2 $1,051,500 for operations and maintenance of the team. Funding supports personnel costs, equipment and supplies, facility leasing, training and travel necessary to maintain the Team at an expected level of response capability and state of readiness. ^ Considerations: FEMA has awarded the VA-TF2 a new grant totaling $43,671 to cover the costs related to evaluations and certifications of its canine search teams ($30,000), personnel costs for the Task Force's participating agencies for training and drills ($4,263), and the remainder of the cost for the August lease payment for the task force's existing facility ($9,408). The grant does not require a local match. ^ Public Information: Public information will be handled through the normal agenda process. ^ Recommendations: Accept and appropriate $43,671 from FEMA to support various operating costs for the Virginia Task Force 2 Urban Search and Rescue Team. ^ Attachments: Ordinance Recommended Action: Approval of ordinance Submitting DepartmentlAgency: Fire Department City Manager: ~ ~ ~ ~Yl''r,. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 AN ORDINANCE TO ACCEPT AND APPROPRIATE GRANT FUNDS FROM THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY TO THE FY 2010-11 OPERATING BUDGET OF THE FIRE DEPARTMENT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA THAT: $43,671 is hereby accepted from the United States Department of Homeland Security and appropriated, with estimated federal revenues increased accordingly, to the FY 2010-11 Operating Budget of the Fire Department for operating costs of the Virginia Task Force 2 Urban Search and Rescue Team to include canine search team evaluations, personnel for training exercises and facility lease payment. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2011. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: l ~ ~~ Management Services Ci rn s ice CA11865 R-1 May 6, 2011 ,~y~HU~sEq~y F "~,,5 ~~ 4 ~`t CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate Funds from the Department of Homeland Security to the FY 2010-11 Operating Budget of the Police Department MEETING DATE: May 24, 2011 ^ Background: The Department of Homeland Security through the Virginia Department of Emergency Management has awarded the Virginia Beach Police Department additional funding in the amount of $15,000 through the 2008 Urban Area Security Initiative (UASI). The funding will be used to purchase equipment to assist the Police Department in detecting and disrupting acts of terrorism, including equipment to enhance response capabilities. ^ Considerations: The 2008 UASI Grant has been active from 8/1/2008, and it will continue through 8/31/2011. Prior to this additional funding, the 2008 UASI Grant has provided $416,754 of federal funding. This additional $15,000 does not require a City match. ^ Public Information: Public information will be provided through the normal Council Agenda process. ^ Recommendations: It is recommended that Council accept and appropriate the additional grant award of $15,000. ^ Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/Agency: Police Department City Manager: S ~ , 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE FUNDS 2 FROM THE DEPARTMENT OF HOMELAND SECURITY TO 3 THE FY 2010-11 OPERATING BUDGET OF THE POLICE 4 DEPARTMENT 5 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 6 VIRGINIA: 7 That $15,000 is hereby accepted from the Department of Homeland Security 8 through the Virginia Department of Emergency Management and appropriated, with 9 estimated state revenue increased accordingly, to the FY 2010-11 Operating Budget of the 10 Police Department for the purchase of equipment to detect and disrupt acts of terrorism. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2011. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT r~ ~- Cam; , Management Services APPROVED AS TO LEGAL SUFFICIENCY: y's O ice CA-11868 R-1 May 12, 2011 \NU ~ ~~y ~+ F~ ~ ~_; <. ,~ _., 4~,,Jj~ ~~` CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate State Grant Funds to Capital Improvement Project # 4-055 to Pay for a Portion of the Trail Design and Construction of the Marshview Trail MEETING DATE: Mav 24. 2011 ^ Background: In June 2010, the City was awarded a $100,000 grant from the Virginia Department of Conservation to design and construct an asphalt trail within the Marshview Park property. The design of the trail is part of a larger master plan update that is currently underway. Public input on the trail design and master plan is scheduled for Fall 2011. The grant agreement requires that the trail construction be completed by June 30, 2013. ^ Considerations: This grant funding covers a portion of the trail design and construction. The total cost of the trail design and construction is estimated to be $250,000; thus, this grant will pay for 40% of the total cost of the trail design and construction. In addition to the grant, there are sufficient funds in Capital Improvement Project #4-055, Open Space Park Development and Maintenance, for the remaining costs associated with this project. ^ Public Information: Public information will be coordinated through the regular Council agenda notification process. ^ Recommendations: Accept and appropriate grant funding to the CIP. ^ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Department of Parks and Recreation'\ City Manager. ~ l~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 AN ORDINANCE TO ACCEPT AND APPROPRIATE STATE GRANT FUNDS TO CAPITAL IMPROVEMENT PROJECT # 4-055 TO PAY FOR A PORTION OF THE TRAIL DESIGN AND CONSTRUCTION OF THE MARSHVIEW TRAIL BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $100,000 in state grant funds are hereby accepted and appropriated, with state revenues increased accordingly, to CIP # 4-055, Open Space Park Development and Maintenance, to pay for a portion of the trail design and construction of the Marshview Trail. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2011. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Management Services ~ or Office CA11874 R-1 May 11, 2011 ,~~,~~in-e'a,,i ~,~ti ~ ,.Y { ,~ . ~~:.. CITY OF VIRGINIA BEACH AGENDA ITEM ~, ITEM: An Ordinance to Accept and Appropriate a Hazard Mitigation Grant Funds to Capital Improvement Project #6-501, Auxiliary Power Program for Sewer Pump Stations -Phase III MEETING DATE: May 24, 2011 ^ Background: The City of Virginia Beach Department of Public Utilities operates and maintains 406 sanitary sewer pump stations. Presently, there are 38 stations which have permanent emergency generators on-site to provide back-up power when needed. Another 173 stations are equipped with automatic power transfer switches which transfer the power from Dominion Power to an emergency generator. For the remaining 195 stations, Public Utilities has 23 portable 6" by-pass pumps to address power failures. Public Utilities has been using a portion of annual capital funding to provide automatic transfer switches to stations that do not have permanent generators. Public Utilities has been awarded a Hazard Mitigation Grant totaling $61,110, with $45,833 from the Federal Emergency Management Agency, $12,222 from the Virginia Department of Emergency Management, and a $3,055 local match. The grant funding will enable the Department to accomplish three additional quick connects beyond those that were planned with the annual funding and will help minimize the likelihood of sewage overflow and the related health hazards. Construction is to be completed by January 31, 2012. ^ Considerations: This project entails installing automatic power transfer switches, wiring and emergency generator "quick connects" to three of the most critical sewer pumping stations. The three stations identified in the grant proposal are: 1. PS #539 Magic Holly Blackstone - 3079 Blackstone Court 2. PS #407 Kempsville Lake - 4781 Marlwood Way 3. PS #324 Thoroughgood Ewell - 4263 Ewell Road ^ Public Information: Public information will be coordinated through the normal City Council agenda process. ^ Recommendations: Accept and appropriate $45,833 from the Federal Emergency Management Agency, $12,222 from the Virginia Department of Emergency Management, and use existing capital funding to meet the $3,055 local match requirement. Recommended Action: Approval Submitting DepartmentlA enc :Public Utilities ~ -~'- y City Manage 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE THE 2 HAZARD MITIGATION GRANT FUNDS TO CAPITAL 3 IMPROVEMENT PROJECT #6-501, AUXILIARY POWER 4 PROGRAM FOR SEWER PUMP STATIONS -PHASE III 5 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 6 VIRGINIA, THAT: 7 8 9 10 11 12 13 14 15 16 17 1. $45,833 in federal pass-through funding from the Federal Emergency Management Agency is hereby accepted and appropriated, with federal revenue increased accordingly, to Capital Improvement Project #6-501, Auxiliary Power Program for Sewer Pump Stations -Phase III; 2. $12,222 in state funding from the Virginia Department of Emergency Management is hereby accepted and appropriated, with state revenue increased accordingly, to Capital Improvement Project #6-501; and 3. The $3,055 required local match shall be provided from existing funding within CIP # 6-501. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2011. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: l~-.' ~ ~; ~ i A Management Services ttor y's Office CA11875 R-1 May 11, 2011 ~~,;-,: ~F~ , ~:, 'V , ~~ i) +, =3 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Appropriate $4,584,053 from the Fund Balance of the School Instructional Technology Fund MEETING DATE: Mav 24. 2011 ^ Background: At its April 5th meeting, the School Board adopted a resolution requesting that City Council appropriate $4,584,053 in fund balance from the School's Instructional Technology Fund (108). The School Board resolution states that the $2,915,947 budgeted "is $4,584,053 short of the amount needed to fund the current year Instructional Technology Fund 108 spending plan." ^ Considerations: The School Board plans to utilize these funds to purchase electronic white boards for secondary schools and to replace outdated classroom desktop and laptop computers. According to the report on page 50 of Executive Summary of the FY 2011-12 Resource Management Plan, the undesignated fund balance of the Instruction Technology Fund is $13,777,361. The proposed FY 2011-12 Budget would appropriate $2,915,947 from this fund balance for the FY 2011-12 Instructional Technology Fund. Assuming the adoption of this appropriation ordinance and the appropriation from fund balance for the proposed FY 2011-12 Budget, the remaining fund balance in the 108 fund would be $6,277,361 as of July 1, 2011. ^ Public Information: Information will be disseminated to the public through the normal Council agenda process. ^ Attachments: School Board Resolution, Ordinance Recommended Action: Submitting Department/Agency: Virginia Beach City Public Schools City Manager: 1 2 3 4 5 6 7 8 9 10 11 AN ORDINANCE TO APPROPRIATE $4,584,053 FROM THE FUND BALANCE OF THE SCHOOL INSTRUCTIONAL TECHNOLOGY FUND BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $4,854,053 is hereby appropriated from the fund balance of the School Instructional Technology Fund (Fund 108) to purchase electronic white boards for secondary schools and to replace outdated classroom desktop and laptop computers with anticipated revenue increased accordingly. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2011. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT ~~ ~ ~,~~ Management Services APPROVED AS TO LEGAL SUFFICIENCY: ' Atto y's Office CA11852 R-2 April 13, 2011 .t IRfiINIJr~1 BEACI-I CITY PUBLIC SCHO~a)I,5 A H E A D O F T H E C U R V E scwoo~ ~oA~a Daniel D. Edwards Cha"uman District 1-Centervi8e 1513 Beachview Drive VA Beach, VA 23!84 495.3551'(h) • 717-6259 (c) NfiBam.J, "BIH' Brunke, IV VicaChairrnda Diairict7-Princess Anne 4699 Faxwood Drive, Suite 108 Virginia Bexh, VA 23462 222-0134 (w) .286.2772 (c) Todd C. Davidson At-large 1861 Mayberry Dme VA Beach, VA 23456 427330 (w} • 285-9448 (c) Emma L "Em"Davis Disldd 5- lynnhaven 1125 Michaehuood brive VA Beach, VA 29452 340.8911 (h} Dorothy M.'Dottfe° Holtz At-large 1304 Downslane VA Beach, VA 23455 46D•2440{h) Brentlt Mckenzie Distrlcl3-Rose Hail 1466 Brookwood Place VA Beach, VA 23453 816-2738 {c) Ashley K. Md.eod At Large 5508 Del Pads Avenue VA Beach, VA 23455 ss2-o34a {n) Samuel G. "Sam" Reid Dlshict8-Beach 1533 VA Beads Blvd. VA Beach, VA 23454 284.1067 (c) Patrick S. Salyer Atlarge 2233 Creels Edge Drive VA Beach, VA 23451 620.2141 (c} Sande Smith-Jones Dislricf 2 -, Kpmpsville 7os R«dc creek coup VA Beach,VA 23462 a9aB167 (n} Carolyn a Weems DisVicl 4 - 8ayside 1420 Claudia Drive VA Beach, VA 23455 464-0674 (h) SUPERINTENDENT James G. Yemro, Ed.D. 2512 George Mason Drive VA Beach, VA 23456 263.1607 RESOLUTION REGARDING APPROPRIATION OF INSTRUCTIONAL TECHNOLOGY FUND 108 FUNDS WHEREAS, The. City of Virginia Beach's adopted Budget Ordinance for the current fiscal year appropriated funds to the School Board of the City of Virginia Beach by major category; and WHEREAS, the Schools have budgeted an amount of $2,915,947 in the current fiscal year FY 2010111 in the instructional Technology Fund 108 fund; and WHEREAS, this budgeted amount is $4,584,053 short of the amount needed to fund the current year Instructional Technology Fund 108 spending plan which includes funds for providing electronic white boards in the secondary schools and replacements of outdated classroom desktop computers and laptop computers; and WHEREAS, the School Board requests that the City Council appropriate the $4,584,053 from the Insftuctional Technology Fund 108 fund balance; and WHEREAS, the School Boanrl affirms the recommended uses of these .funds which will be expended out of the instructional Technology Fund 108 fund; and WHEREAS, appropriations of funds must be approved by fhe City Council prior to expenditure of funds by the School Board. NOW, THEREFORE, BE IT RESOLVED: That the School Board approves and affirms the necessary appropriation and recommended uses of the of these funds; and be it FURTHER RESOLVED: That the School Board requests that the Gity Council approve the appropriation of these funds; and be it FINALLY RESOLVED: That a copy of this Resolution be spread across the official minutes of this Board, and the Clerk of the Board is direcfed to deliver a copy of this resolution to the Mayor, each member of the City Council, the City Mariager, and the City Clerk. Adopted by the School Board of the City of Virginia Beach this 5th day of April 2011 SEAL aniei D'. Edvtrards, School ooard Chaimt«n Aftest: ~~ ~ C.CJ~~i~^~ets''" Dianne P. Alexander, Clerfc of the Board CERTIFfED TO BE A TRUE AND CORRECT COPY le~~rk, Schoo{ Board of the City of Vlrninl2 !~ceoh School Administration Suikling • 2512 George [~ason Drive • P.O. Box 6D313 • Yuginia 6ead1, VA 23456-0038 Na 6E "~ ~4-;.<. 9clr~~ ~~ ~i.~ '~' >> i'~ : __~., ._ . ~ C., :, -"l {.: \, l}~ `y~~~ i CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Transfer $230,754 from the Reserve for Contingencies to Mass Transit Operations FY 2010-11 Operating Budget for the Purpose of Paying a True-Up Reimbursement to Hampton Road Transit (HRT) MEETING DATE: Mav 24. 2011 ^ Background: In 1999, the City of Virginia Beach entered into a Cost Allocation Agreement with the Transportation District Commission of Hampton Roads and six other Hampton Roads localities. This cost allocation agreement established a commission which was authorized to enable legislation, the principles and detailed cost allocation procedures to be used for distribution of capital and operating costs of acquiring, consolidating, rehabilitating, operating and expanding transportation facilities and services for the regional public transportation system. This agreement provides a set methodology that determines an allocation of operating costs for each participating locality. Revenues are captured by route and/or city. This revenue is subtracted from costs to determine if a deficit exists. If a deficit exists, federal formula funds and state funds will both be applied. If a deficit still remains, the participating locality approving those services will provide the funds. According to the Audited 2010 Financial Statement of HRT by Goodman & Company, the City of Virginia Beach has atrue-up reimbursement owed to HRT in the amount of $230,754. This balance is the result of low fare-box revenue recovery, unforeseen increases in Paratransit hours, increased charges for commission expenses, increased service costs for regular bus service, advanced capital contribution, and van pool profit. ^ Considerations: HRT has recently implemented a policy which will inform each locality of their unearned reimbursement balance with HRT each fiscal year. If there is a deficit, HRT has given each locality two options in how to "true up" this balance. The locality may choose to pay the negative balance in one payment this fiscal year or the negative balance can be paid in quarterly payments the following fiscal year. Since there is adequate funding in the City's FY 2010-11 Reserve for Contingencies account and the City's projections of year-end undesignated fund balances is projected to meet City Council policy, this payment can be addressed during this fiscal year. ^ Public Information: Public information will be provided through the normal Council Agenda process. ^ Alternatives: An alternative to this approach would be to pay off the amount owed to HRT through quarterly payments in FY 2011-12. ^ Recommendations: It is recommended that Council transfer $230,754 from the Reserve for Contingencies to the Department of Planning FY 2010-11 Operating Budget to pay off the true-up reimbursement balanced owed to HRT. ^ Attachments: Ordinance Recommended Action: Approval Submitting DepartmentlAgenc~ Development City Manage . ~/ nt of Planning and Community 1 2 3 4 5 6 7 8 9 10 11 12 AN ORDINANCE TO TRANSFER $230,754 FROM THE RESERVE FOR CONTINGENCIES TO MASS TRANSIT OPERATIONS FY 2010-11 OPERATING BUDGET FOR THE PURPOSE OF PAYING ATRUE- UP REIMBURSEMENT TO HAMPTON ROADS TRANSIT (HRT) BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $230,754 is hereby transferred from the Reserve for Contingencies to the Mass Transit Operations FY 2010-11 Operating Budget. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2011. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~ ~ ~, Management Services Cit y's ffice CA11867 R-1 May 11, 2011 K. PLANNING 1. Variance to §4.4(b) of the Subdivision Zoning Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for CHARLES PAYNE re the development of single-family dwellings at 800 Terrace Avenue. DISTRICT 6 -BEACH 2. Application of VIRGINIA BEACH CITY PUBLIC SCHOOLS/THE SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH for a Conditional Use Permit re a private sewage treatment system known as the "Living" Machine" at West Neck Road. DISTRICT 7 -PRINCESS ANNE 3. Application of AGAPAE INTERNATIONAL CHURCH for a Modification of Conditional Use Permit (Condition #6) (approved by City Council on December 3, 1996 and modified February 12, 2008) to allow one modular unit to be on-site for an additional five (5) years at 2641 Princess Anne Road. DISTRICT 7 -PRINCESS ANNE 4. Application of WHITAKER PLACE, LLC/JACQUELINE BULLOCK GLASPIE/ MONICA JOHNSON SIMONS for a Chan~gof Zoning District Classification from R-7.5 Residential District to Conditional PD-H2 (A-12) Planned Unit Development Overlay and Apartment District at 467 and 473 North Witchduck Road. DISTRICT 4 - BAYSIDE 5. BREATHWAITE PLACE, LLC: (DISTRICT 2 - KEMPSVILLE) a. Application for a Change of Zoning District Classification from Conditional A-18 Apartment to PDH-2 (A-18) at Newtown Road and Rock Creek Lane. b. Ordinance to EXTEND compliance re closure of a portion of Newtown Road and Rock Creek Lane (approved by City Council on May 25, 2010) NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the Chamber at City Hall, Municipal Center, 2401 Courthouse Drive, Tuesday, May 24, 2011, at 6:00 p.m. The following applications will be heard: PRINCESS ANNE DISTRICT Agapae International Church Application: Modification of Conditional Use Permit at 2641 Princess Anne Road (GPIN 1494641457). BEACH DISTRICT Charles Payne Application: Subdivision Variance at 800 Terrace Avenue (GPIN 2417927361). KEMPSVILLE DISTRICT Breathwaite Place, LLC Application: Change of Zoning District Classification, Conditional from A-18 Apartment to PDH-2 (A-18) at Newtown Road and Rock Creek Lane (GPIN 1468424560; 1468424432; 1468424315; 1468423287; 1468424132; 1468426125). Density 10 units/acre Comprehensive Plan - Suburban Area. BAYSIDE DISTRICT Whitaker Place, LLC/Jacqueline Bullock Glaspie/Monica Johnson Simons Application: Chance of Zoning District Classification from R- 7.5 Residential District to Conditional PD-H2 (A-12) Planned Unit Development Overlay and Apartment District, 467 and 473 N. Witchduck Road (GPIN 1467888153;1467886085). Density 10.4 units/acre Comprehensive Plan - Suburban Area. PRINCESS ANNE DISTRICT Virginia Beach City Public Schools/The School Board Of The City Of Virginia Beach Application: Conditional Use Permit for a private sewage treatment at West Neck Road (GPIN 1494600093; 1493792102). All interested citizens are invited to attend. Ruth Hodges Fraser, MMC City Clerk Copies of the proposed ordinances, resolutions and amendments are on file and may be examined in the Department of Planning or online at htto://vnvw.v ,~ov.coin/oc Far information call 385-4621. If you are physically disabled or visually Impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385- 4303. BEACON: MAY 8 & MAY 15, 2011 22399552 w.. r v Z~ ~~ Q W "" m S _ 4 ~ ~ ~ ] ,_ ~N s ti ~ ~~ Q . -= ~ F ~i ~ ~ t = ~ ~ 4 N ~ ~ _~- -- _ ' x ~ ~ -~~ _~ ~ {~ - ~, ti~ _~ s~~~ ~ __ - ~- -~- ~r~ - ~~ aC ~~ ~ _ ~~ ~ ~~, t~ .~- ti ~- - ~• _ +~ E ~ -~ ~_x ~~ ~ ~ _ ~ t ~ ~_-= _ ti, ~ ~Q ~~1 ~ ~~ 1 t~ y fIe ~ _ C~ ~ ~ ~,~~ itr ~~~~' ~ ~ J ~ _ ~ t ~` _ = 111 ~~ ~--~ o ~ ~. ~ ~ ~_ ~y v c c y .; ... a '~'^ v~ Hu'4fk ~Y ~`~ ~ ~, ~_ 4~ ~,~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: CHARLES PAYNE, Subdivision Variance, 800 Terrace Avenue (GPIN 2417927361). BEACH DISTRICT. MEETING DATE: May 24, 2011 ^ Background: The existing property consists of three platted lots. The lots are nonconforming in this R-5S Residential Single-Family District. Two of the lots have a width of 30 feet and the corner lot has a width of 45 feet. Each lot is 100 feet long and the entire site has a lot area of 10,500 square feet. The R-5S District requires a lot width of 50 feet and lot area of 5000 square feet except for a width of 60 feet at corner lots. It is the intent of the applicant to resubdivide the property into two parcels for the development of two single-family dwellings. Currently, there is an existing single- family brick ranch located across the property. The applicant proposes to rotate this existing one-story dwelling 90 degrees onto the proposed corner lot (Lot 1A) and renovate the dwelling to front on Terrace Avenue. A second dwelling one and half stories in height is proposed to be built on the interior lot (Lot 5A) will also front on Terrace Avenue. ltsm Lot 1A Lot Width in feet corner lot 60 feet 55 feet* Lot Area ins uare feet 5,000 SF 5,500 SF *Variance required ^ Considerations: The applicant has worked with staff to appropriately provide designs for the renovation of the existing dwelling and the proposed dwelling. The new dwelling is a one and ahalf-story cottage design which will complement coastal cottage design of the renovated dwelling. The configuration of the dwellings on the newly created lots is a crucial component of ensuring aesthetically successful, compatible infill on lots that do not meet current lot width and/or area requirements. Both design and placement of the dwellings are consistent with the recommendations of the "Infill Development Guidelines for Shadowlawn." More than any other neighborhood in the City, Shadowlawn worked to have strict regulations and design guidelines adopted to protect them from infill on substandard lots and this history needs to be respected. The applicant, therefore, has developed a proposal that satisfies the regulations and guidelines Charles Payne Page2of3 to the greatest extent possible and thus ensures compatibility of the structures to the neighborhood. The two subject lots are in every respect consistent with the lot pattern in the community and meet the requirements of the R-5S zoning district applicant except for the fact that the corner lot is five feet short of meeting the requirement for a corner lot. The applicant's effort to design the site and buildings such that the combined development does not negatively impact the overall character of Shadowlawn does much to overcome the five foot deficiency in lot width. Staff, therefore, recommends that the application be approved with the following conditions. There was opposition to the request. ^ Recommendations: The Planning Commission, passing a motion by a recorded vote of 7-3, recommends approval of this request to the City Council with the following conditions: When the property is subdivided, it shall be subdivided in substantial conformance with the plan entitled, "Resubdivision Exhibit of Lots 1, 3 & 5, Block 59, Shadowlawn Heights Virginia Beach, Virginia for Charles F. Payne III," prepared by Ward M. Homes, dated March 13, 2006, revised May 1, 2006, and Sheet SK1 or SK1A 800 Terrace Ave Virginia Beach , VA prepared by Edmond P. Virgili, R.A. dated March 18, 2011 which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. When the property is subdivided, Lot 1A shall be in substantial conformance with the rendering of the proposed renovated ranch entitled 800 Terrace Ave. Existing Residence Concept and the Sheet SK2A Front Elevation 800 Terrace Ave. which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. When the property is subdivided, Lot 5A shall be in substantial conformance with the rendering of the proposed new dwelling entitled Proposed House for the Resubdivision of Lots 1, 3,& 5 Block 59, Shadowlawn and the Front & Rear Elevations entitled "Winonna Park SL-503 Circa Studios" which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 4. Development on the proposed lots shall adhere to the "Shadowlawn Infill Development Guidelines" as provided in the Comprehensive Plan. At such time as development is proposed for these lots, floor plans and building elevations shall be submitted for approval by the Planning Director or his designee. Charles Payne Page3of3 ^ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: 5 ~ , 3EACH Map AI-7 Charles Pa~~ne ,,.. ~ ~ - - 1 `~~' - 11 s _-- - ~~ ~ ~ ~- 'i l ~ 1 _.--~ F~5~ i •~ T ~-TTt'' ' ~/ _ - 1 ~ ~ ~ `' ors- ~~~ l ~ ~ ~ ~~ / ~ ~ ~ ~ '~ - i t ~ i ~~: ~ ~ ~ ~ ~ '~ t _ a Subdlvlslon Varl~nx 4 April 13, 2011 Public Hearing APPLICANT /PROPERTY OWNER: CHARLES PAYNE STAFF PLANNER: Karen Prochilo REQUEST: Subdivision Variance to Section 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance and Section 4.4(c) of the Subdivision Ordinance that corner lots must meet requirements of the City Zoning Ordinance. ADDRESS /DESCRIPTION: 800 Terrace Avenue GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 241792736100000 BEACH 10,500 square feet 70 dB - 65 d6 DNL SUMMARY OF REQUEST Existing Lot: The existing property consists of three platted lots. The lots are nonconforming in this R-5S Residential Single-Family District. Two of the lots have a width of 30 feet and the corner lot has a width of 45 feet. Each lot is 100 feet long and the entire site has a lot area of 10,500 square feet. The R-5S District requires a lot width of 50 feet and lot area of 5000 square feet except for a width of 60 feet at corner lots. Proposed Lots: It is the intent of the applicant to resubdivide the property into two parcels for the development of two single-family dwellings. Currently, there is an existing single-family brick ranch located across the property. The applicant proposes to rotate this existing one-story dwelling 90 degrees onto the proposed corner lot (Lot 1A) and renovate the dwelling to front on Terrace Avenue. A second dwelling one and half stories in height is proposed to be built on the interior lot (Lot 5A) will also front on Terrace Avenue. CHARLES PAYNE Agenda Item 4 Page 1 ltgm Lot 1-A Lot Width in feet corner lot 60 feet 55 feet* Lot Area ins uare feet 5,000 SF 5,500 SF Variance required R-5S District and Shadowlawn Neighborhood History: The Shadowlawn neighborhood, zoned R-5S Residential Single-Family District, has a unique history and regulations regarding nonconforming lots. Platted in the early 1900's, the majority of the lots were established with a lot width of 25 or 30 feet and a length of 100 feet. Lots were purchased in groups of three or four and developed with one-story, brick ranch homes. In the late 1970s and early 1980s, this neighborhood, located near the Oceanfront, became very desirable and property values elevated to the point that owners began selling off their extra lot or lots. Infill development, usually consisting of tall homes on narrow lots, was not consistent with the character of the neighborhood. A special amendment to the Zoning Ordinance was approved pertaining to nonconforming, substandard lots in the R-5S District and in 1983, the R-5S District was amended to prohibit nonconforming lots from being sold separately and developed where two or more contiguous lots are held in common ownership. The old, small lots must be combined to meet the frontage and area requirements of the R-5S District. These regulations were changed for a brief period to allow development, under certain circumstances, on resubdivided 35-foot wide lots. The results were viewed as negative and the regulations were revised a third time back to the 1983 regulations, and development on substandard lots is now prohibited where contiguous lots are owned by the same entity. Infill Development Guidelines for Shadowlawn were also adopted as part of the Comprehensive Plan. LAND USE AND PLAN INFORMATION EXISTING LAND USE: Single-family dwelling SURROUNDING LAND North: Single-family dwellings/ R-5S Residential District USE AND ZONING: South: • Terrace Avenue • Across Terrace Avenue are single-family dwellings/ R-5S Residential District East: Carribbean Avenue • Across Carribbean Avenue are single-family dwellings/ R-5S Residential District West: Single-family dwellings/ R-5S Residential District NATURAL RESOURCE AND There are no significant natural resources or cultural features on this CULTURAL FEATURES: site. COMPREHENSIVE PLAN: The Comprehensive Plan designates this area of the City as Strategic Growth Area 8: Resort Area. The Resort Area is recognized as a major activity center where revitalization efforts have strengthened neighborhoods and increased economic growth. (p. 2-28) The Resort Area Strategic Action Plan (RASAP), adopted as part of the Comprehensive Plan, identifies Shadowlawn, Lakewood, and Old Beach as the three :, CHARLES PAYNE `Agenda Item 4 Page 2 primary residential areas in the Resort SGA. Two of the RASAP's development strategies are to grow residential and create a transition from the resort area to the neighborhoods. (RASAP, p. 6) The Comprehensive Plan Reference Document has a section specifically for infill development in the Shadowlawn neighborhood. Because this neighborhood was platted in a grid pattern with long, narrow lots, many of the houses were built on a combination of two or more lots, often leaving single lots vacant for future development. As these single lots were developed, the narrow lot width resulted in long, narrow two-story houses which are not compatible with the architectural style of the neighborhood. In order to prevent more of these incompatible structures, the Comprehensive Plan provides the following Compatibility Guidelines specific for Shadowlawn's infill lots (pp. C-7 to C-10): • New infill structures should be constructed at a height that is compatible to the adjacent structures. If at all possible, the new dwelling should have the same number of stories as the dwellings on either side or be within 15% of the height of those dwellings. • Every attempt should be made to utilize every inch of the available width of an infill lot. • The proportion of the new structure should be as similar as possible and compatible with the proportion of existing adjacent structures. • The location of the structure on the site should not disrupt the existing rhythm of the building width and spacing; the structure should not have setbacks which vary from the predominant setbacks in the neighborhood. • Compatibility cannot be achieved if the building materials used on the facade of the structure and details differ substantially from those found on the other dwellings in the neighborhood. • Driveways should be designed to maintain yard area; paving the entire front yard is not desirable. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) /CAPITAL IMPROVEMENT PROGRAM (CIP): Terrace Avenue in the vicinity of this application is a two-lane local street with afifty-foot (50') wide right of way. No CIP projects are currently scheduled for this portion of Terrace Avenue. In this location, Carribbean Avenue is a two-lane local street with afifty-foot (50') wide right of way. No CIP projects are currently scheduled for this section of Carribbean Avenue. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Terrace Avenue No data 6,200 ADT (Level of Existing Land Use available. Service "C") - 9,900 ADT' (Level of 10 ADT Service "D"/ Capacity 1 Peak Hour 11,100 ADT' (Level of Proposed Land Use Service "E" 3- Carribbean No data 6,200 ADT (Level of 20 ADT Avenue available. Service "C") 2 Peak Hour CHARLES PAYNE Agenda Item 4 Page 3 9,900 ADT ' (Level of Service "D"/ Capacity 11,100 ADT ' (Level of Service "E" Average Daily Trips ' as defined by one single family dwelling 3as defined by two single family dwellings Traffic Engineering does not expect that the proposed additional single-family home at this site will generate a significant number of additional vehicular trips on the adjacent roadways. STORMWATER: This request must develop a storm water management plan for water quantity and quality in accordance with the Public Works Specifications and Standards. The storm water management plan shall provide protection from detrimentally impacting all downstream receiving storm drain systems. The Preliminary Re-subdivision Exhibit does not show a storm water Best Management Practice (BMP) with the proposed re-subdivision. It should be recognized that approval of this exhibit does not permit the exclusion of installing and adequately sizing a BMP for the site. If including a BMP impacts the proposed Exhibit, the Exhibit may be required to be resubmitted for revision approval. WATER: This site currently connects to City water. The existing meter may be used or upgraded to accommodate the proposed development. The newly created lot must also connect to City water. SEWER: This site currently connects to City sanitary sewer. The newly created lot must also connect to City sanitary sewer. Analysis of the pump station and the sanitary sewer collection system is required to ensure future flows can be accommodated. FIRE /EMS: No Fire Department or EMS comments at this time. Section 9.3 of the Subdivision Ordinance states: No variance shall be authorized by the Council unless it finds that: A. Strict application of the ordinance would produce undue hardship. B. The authorization of the variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. C. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. D. The hardship is created by the physical character of the property, including dimensions and topography, or by other extraordinary situation or condition of such property, or by the use or development of property immediately adjacent thereto. Personal or self- inflicted hardship shall not be considered as grounds for the issuance of a variance. E. The hardship is created by the requirements of the zoning district in which the property is located at the time the variance is authorized whenever such variance pertains to provisions of the Zoning Ordinance incorporated by reference in this ordinance. CHARLES PAYNE Agenda Item 4 -Page 4 EVALUATION AND RECOMMENDATION The applicant has worked with staff to appropriately provide designs for the renovation of the existing dwelling and the proposed dwelling. The new dwelling is a one and ahalf-story cottage design which will complement coastal cottage design of the renovated dwelling. The configuration of the dwellings on the newly created lots is a crucial component of ensuring aesthetically successful, compatible infill on lots that do not meet current lot width and/or area requirements. Both design and placement of the dwellings are consistent with the recommendations of the "infill Development Guidelines for Shadowlawn." More than any other neighborhood in the City, Shadowlawn worked to have strict regulations and design guidelines adopted to protect them from infill on substandard lots and this history needs to be respected. The applicant, therefore, has developed a proposal that satisfies the regulations and guidelines to the greatest extent possible and thus ensures compatibility of the structures to the neighborhood. The two subject lots are in every respect consistent with the lot pattern in the community and meet the requirements of the R-5S zoning district applicant except for the fact that the corner lot is five feet short of meeting the requirement for a corner lot. The applicant's effort to design the site and buildings such that the combined development does not negatively impact the overall character of Shadowlawn does much to overcome the five foot deficiency in lot width. Staff, therefore, recommends that the application be approved with the following conditions. CONDITIONS When the property is subdivided, it shall be subdivided in substantial conformance with the plan entitled, "Resubdivision Exhibit of Lots 1, 3 & 5, Block 59, Shadowlawn Heights Virginia Beach, Virginia for Charles F. Payne III," prepared by Ward M. Homes, dated March 13, 2006, revised May 1; 2006, and Sheet SK1 or SK1A 800 Terrace Ave Virginia Beach , VA prepared by Edmond P. Virgili, R.A. dated March 18, 2011 which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. When the property is subdivided, Lot 1A shall be in substantial conformance with the rendering of the proposed renovated ranch entitled 800 Terrace Ave. Existing Residence Concept and the Sheet SK2A Front Elevation 800 Terrace Ave. which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. When the property is subdivided, Lot 5A shall be in substantial conformance with the rendering of the proposed new dwelling entitled Proposed House for the Resubdivision of Lots 1, 3,& 5 Block 59, Shadowlawn and the Front & Rear Elevations entitled "Winonna Park SL-503 Circa Studios" which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 4. Development on the proposed lots shall adhere to the "Shadowlawn infill Development Guidelines" as provided in the Comprehensive Plan. At such time as development is proposed for these lots, floor plans and building elevations shall be submitted for approval by the Planning Director or his designee. CH~#2LES PAYNE Agenda Item 4 Page 5 NOTE: Further conditions maybe 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. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. CHARLES PAYNE Agenda Item 4 -Page 6 I r i l OT 8 ON LINE _ _ _ IF 0.2' IN LU, / 0.5' 1N ~I c O O~ LU I 6 LUl 4 LU'I 2 PROF ERTV LINE TO BE 105.00 RELO%ATED 50.00' 5500' I PROPERTY UNE TO 6E ~ fi ( ` ~ twrt oAK ti%' I fENCE I ;~r ,; tUl 5 ~ ~1 3' i t = 1OT 1 K ~c J 6 L I Bs4 ~ I ~ 1 ~~ ® ~~~ ~ :1F OAK / LOT 5AI ~ 14 - ,_ -- I - a r ,~ I i ,g' o 32.1' ~ I 1 P. 0' --"~- 1 STORY BIJ~ 7CK ;. LOT 1 A N ERFME ~I 8('D I N 0 1 IN I 1 ~~ ~1~ PED I 1 PP I I I I I I ~ 10 BE REI CATEC I ~ I O a V U ' I^ 77.4' w N3. N u 72.5 2~ 2 7' ~1 '~,S o 74.8' a w ~1.3~ Q L zr vmF t 'YMp'. aK I ---- ~o' a +' IREL("~TEO ~ i CONC M ~ IPROPEf TY I IuNE'~ I ~io' ra'e I I 4. PFC I { IF f n I F~ I ~1• ~Y 105.00 I+' ~ ~ ^~ oAx ao~ a i Q~,--- TOP OF BANK-~1~---___--- ~~/ Qy ,~ b tioy~ ,pew ,~~ ~1 >>1 ~~~ TE•'.,?ACE A AEI' ,. GPW(S): 24t' 9273 61(0 r'1 (50' R/W) CueRENT ZONING: RS-S P77P:.':.0 ZONING: RS-S NEW WT -RE "S: AI: 5, 5(A SF, D.1C6 A.C -2: s,o1•., s.', o.ns :c RESUBDI''ISIUN EXHIEIT E%ISTING lOT AREA' pF LoT I: 45' x 7DO' = 4. s. t sF ' ' ' LUTS 1 BLOCK 59 3 ~~ F F x 700 = 3,Or7 LOT 3: 30 LoT a 30' x too' = 3,0 •, ^F , , SH.=.DC'.': L~.WN HEIGHT "IRGINI;- BE.;CH, ''IRGINI;-, f UR DATE'. MAR 13, 2Dbo P: YNE III CH ;RLE~ F RE'.15E0 N: v t, 2COE . . :^aLE: t' = 20' NOTE: F6.~ PIAT SEE SUF~.EYEG 8Y; M. B.7 PG.t4 -FD M HV.IE: a ~'•. BE- CN, ~ •.. l~ ND £UR.;YOR, P C. 9225 ~RANBY ;TREET NORFOLK, I.-GINIA 23503 Q ,-. o: o- v BUILDING `_ETBACK• FR; I I T: 20' RE -R: 20' ~10E 5' AND t0' 510E t5' (r-0J 70 STREET) PROPOSED SUBDI~iS~~N 1 CHARLES PAYNE Agenda Item 4 Page 8 105' . • . I PENCE .PATIO tbv N 5E1'BAGK UNE SETBACK UNE~ - PATIO ~ I :~ - . ~ . •, ~, ._~ 35' 85' I d 15'- PO 11 EAST. RES ENCE NEW RE910ENC[ LOT SA LOT lA I > PORCH I 1 13' I ~ PORCFI i ( ~ ' ~ fY1 J •, SETBACK UNE I , ~ ~ ` - - - - 1 ~ -SETBACK UNE U i ^ • DRIVEWAY • N i I ^' DRIVEWAY • N s -. - - - •-.- _ 5a i r 55- I EDGE OP PAVEMtNT CONC~r SITE PLAN TERRACE AVB. I"=2a PROPOSED SITS ~~AN F,. CHARLES PAYNE Agenda Itsm 4 Rage 9 ,t. ~ 4.~ ; F}'- ,~ .. _ ~'' -~R' '. L , ._..,~w.~.... .~._ ~ i 1 }~ ` ~ S ;~ ` ~ fir. >~: l .~' °- i ~~ ,~ *i'• i1 Ri r~ ~ EXISTING RENOVATED f+ V V d N y~ T N ~~ W Q V L L I- O O DENCE tem 4 1~ age 10 <'' ~~ ,~ T ~ dA `H~d~H dA ~srtz vu.~wn vas vtraoxin 'dZI `I'IIJ2IIA 'd QPIOY~IQ~ I I ~IdYd 8I ~g.LVQ 0 W m N r ~a Zm o~ ~~ ~ ~~ m~ ~~ Q ~~ ~$ Z O Q 1 W ~ J ~ W Q 7 i 6J O _ ~ N O li~ I ~ I~~ ' it I r ~ ~ ~Z~ .~ d~ ~ ~ ~} ~ i j~ ~ m z~S ~ =z ~ =U ~t~ OZ ~ ~~ °~ w N N uJ. ~ ~~ o~~ ~ 8~ F ~~~ ~~ ~o ~8 P ~~ ~N ~ ~~~ ~~ ~~ ~~ m~ ~~ ~~ N~~] Y Q ~ _~~ y~tf1 Z~ ~o ~S v N ~~r O EXISTING RENOVATED ,REFS P AYNE Agenda Item 4 P age 11 ~ a~ ~ ,~. ,~-.~ PROPOSED NEW FRONT ELEVATION REAR ELEVATION PROPOSED NEW RESIDENCE CHARLES PAYNE Agenda Item 4 Page 13 # DATE REQUEST ACTION 1 06/24/1997 Subdivision Variance A roved ZONING HISTORY CHARLES PAYNE Agenda Item 4 Page 14 ~--~ i--a W V z 0 A W DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. 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 aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated 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 aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & See next page for footnotes Subdivision variance Applicatbn Pape 10 of 71 Revised: 7111/06 CHARLES PAYNE Agenda Item 4 Page 15 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: (AttapFh Ij~t if gecessary) i~ rtM1o~tfJ _(J V i!+ i l i ~ ~ !~+ WQ~ I•, 1-~bjvtiea~ I S 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 § 2.2-3101. s "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 entities. Factors that should be considered 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 entities; 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 Gose working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notfication (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 3U 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 sfte for purposes of processing and evaluating this application. Applicants Signature Print Name Property Owner's Signature ('rf different than applicant) Print Name Subdivision Variance Application Pape 11 of 71 Revked 7111/06 Z ~--~ V ~--~ W V O A DISCLOSURE STATEMENT CHARLES PAYNE Agenda Item 4 Page 16 Item #4 Charles Payne Subdivision Variance 800 Terrace Avenue District 6 Beach April 13, 2011 REGULAR An application of Charles Payne for a Subdivision Variance to Section 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance and Section 4.4(c) of the Subdivision Ordinance that corner lots meet requirements of the City Zoning Ordinance on property located at 800 Terrace Avenue, District 6, Beach. GPIN: 2417-92-7361-0000. CONDITIONS 1. When the property is subdivided, it shall be subdivided in substantial conformance with the plan entitled, "Resubdivision Exhibit of Lots 1, 3 & 5, Block 59, Shadowlawn Heights Virginia Beach, Virginia for Charles F. Payne III," prepared by Ward M. Homes, dated March 13, 2006, revised May 1, 2006, and Sheet SK1 or SK1A 800 Terrace Ave Virginia Beach , VA prepared by Edmond P. Virgili, R.A. dated March 18, 2011 which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. When the property is subdivided, Lot 1A shall be in substantial conformance with the rendering of the proposed renovated ranch entitled 800 Terrace Ave. Existing Residence Concept and the Sheet SK2A Front Elevation 800 Terrace Ave. which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. When the property is subdivided, Lot 5A shall be insubstantial conformance with the rendering of the proposed new dwelling entitled Proposed House for the Resubdivision of Lots 1, 3,& 5 Block 59, Shadowlawn and the Front & Rear Elevations entitled "Winonna Park SL-503 Circa Studios" which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 4. Development on the proposed lots shall adhere to the "Shadowlawn Infill Development Guidelines" as provided in the Comprehensive Plan. At such time as development is proposed for these lots, floor plans and building elevations shall be submitted for approval by the Planning Director or his designee. NOTE: Further conditions maybe 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. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Desiqn (OPTED) concepts and strategies as they pertain to this site. AYE 7 NAY 3 ABS 0 ABSENT 1 BERNAS NAY Item #4 Charles Payne Page 2 FELTON AYE HENLEY AYE HODGSON NAY HORSLEY ABSENT LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO NAY STRANGE AYE THORNTON AYE By a vote of 7-3, the Board approved item 4. Eddie Bourdon appeared before the Board on behalf the applicant. Kathy Browning and David Beers appeared in opposition. ~~ 0 0 V .~ .r~1 r V 4~ . ~. .,~ ~l ~.. .~ C 3 v w i a ~° 4 v i Nu ee,~ ~~ ~; `-. ~ off CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: VIRGINIA BEACH CITY PUBLIC SCHOOLS/THE SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, Conditional Use Permit, private sewage treatment, West Neck Road (GPIN 1494600093; 1493792102). PRINCESS ANNE DISTRICT. MEETING DATE: May 24, 2011 ^ Background: The applicant requests a Conditional Use Permit to allow the use of a private sewage treatment system, specifically a system known as the "Living Machine." The Living Machine is a ecological wastewater treatment system that treats wastewater for reuse. This dramatically reduces water and energy consumption and their associated costs. With this wastewater treatment and reuse of water for commodes and urinals, an average of 3,000 gallons per day will be saved with an estimated annual savings of 1 million gallons. Discharge into the City sewer system is estimated to be reduced by 65%. The new 2,000 student Kellam High School, where site work has begun, is pursuing a Leadership in Energy and Environmental Design (LEED) Platinum designation, and, as such, as part of the sustainable site initiative, the sewage treatment (toilet flushing) is designed as an enclosed, constructed wetlands system. No effluent will be discharged on to the site. An emergency connection to the public sewer system is also proposed. This system will provide a demonstration of state-of-the-art green technology in an attractive and ecologically responsible way. ^ Considerations: The Living Machine uses a small footprint to treat large amounts of wastewater. It is a fully automated system equipped with emergency overFlows to the sanitary sewer system. The system can be sized to accommodate a certain amount of storage for larger rain event, etc. Also, the system can be designed to accommodate a building's entire sewage flow or just a portion of a building's flow with the remainder going directly into a municipal sanitary sewer system. The Living Machine is basically a "super charged" wetland system designed to speed up the natural processes of breaking down effluent. The request for the private sewage treatment facility is consistent with the policies of the Comprehensive Plan. The treatment and reuse of water resources on site is an exemplary solution to the stewardship guidelines outlined in the Comprehensive Plan's chapter on Environmental Stewardship. This project will not only provide an excellent educational opportunity for students but City of Virginia Beach Public Schools Page 2 of 2 will also provide a tremendous reduction in both water and energy consumption. With this wastewater treatment and reuse of water for commodes and urinals, an average of 3,000 gallons per day will be saved with an estimated annual savings of 1 million gallons. Discharge into the City sewer system is estimated to be reduced by 65%. Virginia Beach City Public Schools continues to be a leader in the City in incorporating sustainable building practices and standards for their new construction projects. Staff recommends approval of this Conditional Use Permit request with the following conditions. There was no opposition to the request. ^ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval of this request to the City Council with the following conditions: 1. Approval from the Heath Department shall be obtained prior to issuance of a Certificate of Occupancy. 2. All approvals and required connections to the City's public sanitary sewer system, as deemed necessary by the Department of Public Utilities, shall be obtained and constructed as required. ^ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manag VRINCESS ANNE `II'~.',Illlil ~l'iIC)il ~-lt~~ PUI)~Il' Sl'I111111~ ^;~f ~ A , o 02' G2` , ~ ~1.1G1 02 r A ~ ~~ „ __ ~r „ - Sub Areu 2 ~ ~„ , . ~Xt~s2 +~ ~ ~ ~ ~~ _ . ~ ~ ~ ,y ~ AG1 ~ ~ - r ~,,~~ ' .1 R30' ~ ~~ tti. .~ `~ ~. / -i- dR Ldn • 1 ~ . AG2 ;AGi `/ : ., _ R30` . PDH3 a. 'f.. A~2 : R3G' ~ _. = P1' t , _ - PDH7' ~'nv~ ~`~'" CUP {or Pri:aW Sewage 7reafnxnt REQUEST: Conditional Use Permit for Private Sewage Treatment ADDRESS I DESCRIPTION: West Neck Road April 13, 2011 Public Heai APPLICANT /PROPERTY OWN VIRGINIA B EAC CITY P SCH STAFF PLANNER: Carolyn A.K. Smith GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14946000930000 PRINCESS ANNE 108.8 acres Less than 65 d6 DNL 14937921020000 SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow the use of a private sewage treatment system, specifically a system known as the "Living Machine." The Living Machine is a ecological wastewater treatment system that treats wastewater for reuse. This dramatically reduces water and energy consumption and their associated costs. With this wastewater treatment and reuse of water for commodes and urinals, an average of 3,000 gallons per day will be saved with an estimated annual savings of 1 million gallons. Discharge into the City sewer system is estimated to be reduced by 65%. The new 2,000 student Kellam High School, where site work has begun, is pursuing a Leadership in Energy and Environmental Design (LEED) Platinum designation, and, as such, as part of the sustainable site initiative, the sewage treatment (toilet flushing) is designed as an enclosed, constructed wetlands system. No effluent will be discharged on to the site. An emergency connection to the public sewer system is also proposed. This system will provide a demonstration of state-of-the-art green technology in an attractive and ecologically responsible way. City of Virginia ~ ~ ~~~ ~~ i Public h Sc oo s ~ . Agenda Item 9 . Page 1 ~" r~,. ~ ._ C LAND USE AND PLAN INFORMATION EXISTING LAND USE: Kellam High School under construction SURROUNDING LAND North: . Single family dwellings / AG-2 Agricultural District USE AND ZONING: South: Wooded Area • Single family dwellings / AG-2 & AG-1 Agricultural District East: West Neck Road • Single family dwellings, church, vacant / AG-2 Agricultural District, Conditional O-2 Office District West: • Single family dwellings / R-30 Residential District with open space promotion NATURAL RESOURCE AND This site is located within the Southern Watersheds Management Area. CULTURAL FEATURES: Prior to commencement of site work for the construction of the new high school, the site was primarily fallow agricultural fields with areas of mature woods along the north and south portions of the site. Some areas of non-tidal wetlands have been identified on the property and will remain undisturbed. COMPREHENSIVE PLAN: The Comprehensive Plan designates this area of the City as Transition Area, which the Plan states is not intended to become part of the urban north, nor is it intended to be limited to the very low densities appropriate for rural growth. (p. 4-1) The Environmental Stewardship chapter encourages the City to promote environmentally responsible development and to build Leadership in Energy and Environmental Design (LEED) structures. (p. 7-11 - 7-12) Developed land should be used in a sustainable manner so that its value to present and future generations is maintained or enhanced. (p. 7-17) The City is encouraged to become a leader in energy conservation and efficiency efforts. (p. 7-18) CITY SERVICES WATER 8~ SEWER: The wetlands cells will be connected to the City sanitary system in the event that a large storm event occurred (the cells can actually be covered to reduce the amount of falling rain into the cells). In the event that maintenance is needed, the system can be re-directed into the City sanitary system. These systems, the Living Machine, can be designed to accommodate entire flows or just a portion of the school flow with the remainder going directly into the City sanitary system. In other words, these compact, super charged wetlands can be sized to handle large flows, the connection to the City's system is simply a precaution as this is the first of its kind of this size for a City of Virginia Beach Public School's project. The Department of Public Utilities will require that the Health Department approve the proposed private sanitary system and that the system connect to the City's sanitary sewer. There are existing water and gravity sewer lines in West Neck Road and North Landing Road to accomplish this. The applicant has been working with both the Department of Public Utilities and the Heath Department on this project. City of Virginia Beach Public Schools Agenda Item 9 Page 2 EVALUATION AND RECOMMENDATION The Living Machine uses a small footprint to treat large amounts of wastewater. It is a fully automated system equipped with emergency overflows to the sanitary sewer system. The system can be sized to accommodate a certain amount of storage for larger rain event, etc. Also, the system can be designed to accommodate a building's entire sewage flow or just a portion of a building's flow with the remainder going directly into a municipal sanitary sewer system. The Living Machine is basically a "super charged" wetland system designed to speed up the natural processes of breaking down effluent. The Kellam High School system will accept initial flow from the school into a primary tank. Within this tank, the solid material will settle while the fluid effluent is pumped into the constructed wetland cells for treatment and recirculation. The wastewater is introduced to the cells by computer controlled fill and drain cycles which promote aerobic treatment of the effluent. The patented tidal-like process naturally brings oxygen to the wastewater, improving treatment performance by producing cleaner water using less energy. A recycle loop passes water several times through the treatment system. There is no opportunity for accidental contact with the untreated or partially treated water nor is there concern for creating a mosquito breeding habitat as the wastewater is always below the surface of the system's wetland media (special gravel or aggregate). There is no standing or pooling water as the cells are filled with a special gravel and contain wetland species plants. The wetland plants and microorganisms, especially in the root zone, promote a complex and stable ecosystem that generates the clean water. The treated water is finally pumped into a reclamation tank and can be reused for flushing toilets, etc. As this is a constructed (and enclosed) wetlands, it will not receive stormwater runoff from the surrounding areas, nor will the effluent overflow into adjacent areas. The wetlands cells will be connected to the City sanitary system in the event that a large storm event (hurricane) occurs (the cells can actually be covered to reduce the amount of falling rain into the cells). When maintenance is needed, the system can be re-directed into the City sanitary system. Typical maintenance will include a pump out of the primary tank and the replacement of plants every several years. As the flows will be reduced during the summer months when school is not in session, the organisms in the system will go dormant. Just prior to students returning, the system will need to be "primed" to reactivate the organisms. The request for the private sewage treatment facility is consistent with the policies of the Comprehensive Plan. The treatment and reuse of water resources on site is an exemplary solution to the stewardship guidelines outlined in the Comprehensive Plan's chapter on Environmental Stewardship. This project will not only provide an excellent educational opportunity for students but will also provide a tremendous reduction in both water and energy consumption. With this wastewater treatment and reuse of water for commodes and urinals... an average of 3,000 gallons per day will be saved with an estimated annual savings of 1 million gallons. Discharge into the City sewer system is estimated to be reduced by 65%. Virginia Beach City Public Schools continues to be a leader in the City in incorporating sustainable building practices and standards for their new construction projects. Staff recommends approval of this Conditional Use Permit request with the following conditions CONDITIONS 1. Approval from the Heath Department shall be obtained prior to issuance of a Certificate of Occupancy. City of Virginia Beach Ptablic Schools Agenda Item 9 Page. 3 2. All approvals and required connections to the City's public sanitary sewer system, as deemed necessary by the Department of Public Utilities, shall be obtained and constructed as required. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this Use Permit are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. City of Virginia Beach Public Schools Agenda Item 9 Page 4 ~y LF UR NPR ~r. .~Y . ~ ,~ .~ ~. ,~ ,t ~~ t k e V. h $ u ~ /~ y W pCC ~~ = F V ~ ~ e 6 la '`'' _ ~ ~ v I~~ ~ ,~ v U U ~'~ ~ .--i ~ ~ O ~ O r i~~ rv~ L 'y ~ J 7 1~.-Ij r ~ ~ u ,_._,i u ,_..~ c v U ~ s ^~ PROPOSED City of Virginia Beach F PLAN blic Schools ,^"~ ends Item 9 ,y Page 6 ~ 1-s VuR NN~~ LIVING MACHINE PRIVATE TREATMENT SYSTE City of Virginia public Schools ~ Agenda Item 9 '~ Page 7 ;~ L_°` ~uR N 1 06/08/10 08/24/04 REZ (R-10 to AG-1) REZ AG-1 & AG-2 to R-10 Granted Granted 2 04/08/08 REZ AG-2 to O-2 Granted 3 10/10/06 REZ AG-1 to O-1 Granted 4 03/04/03 REZ (AG-1 ~ AG-2 to R-30 with a CUP for open space romotion Granted 5 07/03/01 09/09/97 CUP (preschool/daycare) CUP church/da care Granted Granted 6 05/11/99 REZ AG-2 to PD-H1 ~ P-1 Granted ZONING HISTORY '~`~c~~,, City of Virginia ablic Schools ". Benda Item 9 } n Page 8 _, ~~,,,o .,., .- DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. 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 aparent-subsidiary or affiliated business entityZ relationship with the applicant: (Attach list if necessary) ® Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is dJfferent firm applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated 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 aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ® Check here ff the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & 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 x If yes, what is the name of the official or employee and the nature of their interest? Conditional Use PermN Appllratlon Peps 8 or 10 RoNsod 7!d/t007 Z O E H .--.. W W cn ~~- Z ~---~ Q Z O V DISCLOSURE STAT~1lll~I~T City of Virginia Beach Public Schools Agenda Item 9 Page 9 Z O F--~ W W c/~ r~ O ~~ I~~ A O V DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, inGuding but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) ' 'Parent-subsidiary relationship" means 'a relationship that exists when one wrporetion 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 § 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 entities. Factors that should be considered 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 entities; there are common or commingled funds or assets; the twsiness entities share the use of the same offlces or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a dose working relationship between the entities 'See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I tartly that the information contained herein is true and accurate. I understarxJ that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, l am responsible for obtaining and posting fhe required sign on the subject properly at least days prior to the scheduled public hearing according to the instructions in this package. The and so kxxisents to entry upon the subject property by employees of the Department of Plann' and view the site for purposes of processing and evaluating this application. Anthony L. Arnold Appli S re Print Name Property Owner's Signature (if different than applicant) Print Name Condltiorwl Use Petmlt Appfcedon Page 10 of 10 Revised 7/3f2007 City of Virginia Beach Public Schools Agenda Item 9 Page 10 Item #9 Virginia Beach City Public Schools Conditional Use Permit West Neck Road District 7 Princess Anne April 13, 2011 CONSENT An application of Virginia Beach City Public Schools for a Conditional Use Permit for private sewage treatment on property located on West Neck Road, District 7, Princess Anne. GPIN: 1494-60-0093-0000; 1493-79-9210-0000. CONDITIONS 1. Approval from the Heath Department shall be obtained prior to issuance of a Certificate of Occupancy. 2. All approvals and required connections to the City's public sanitary sewer system, as deemed necessary by the Department of Public Utilities, shall be obtained and constructed as required. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this Use Permit are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. AYE 10 NAY 0 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE HORSLEY LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE THORNTON AYE ABS 0 ABSENT 1 By a vote of 10-0, the Board approved item 9 for consent. ABSENT Tony Arnold appeared before the Board. H O .~ a c 0 U ~. O W Z Z a W. Z' i d ~ C O w .~ `~ c .~ y ~: ~; 00 (~ N ~o 04 ~~ V v ,o My 0 •? 4 "4 ~, o ~; N y~ ,dU SF .. y~ ~7 S `4= '~ ~j ~~~ t ~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: AGAPAE INTERNATIONAL CHURCH, Modification of Conditional Use Permit, 2641 Princess Anne Road (GPIN 1494641457). PRINCESS ANNE DISTRICT MEETING DATE: May 24, 2011 ^ Background: The Conditional Use Permit allowing a church was granted on December 3, 1996 by City Council. That use permit was then modified by City Council on February 12, 2008. Condition Six of the modified use permit allows one modular structure on-site for three years from the 2008 date of approval. The applicant, in this request, asks for an extension to allow the modular to be on-site an additional five years. The modular structure will house classes and programs related to the church's religious services, before and after-school programs, and eventually a pre- school. Currently, the church only conducts religious classes and services on- site. Future plans are to operate before and after-school programs and a preschool. The February 12, 2008 modified Conditional Use Permit has the following eight conditions: 1. There will be one temporary access to the site from Princess Anne Road. Once an alternative access is established, this temporary access shall be removed. 2. Temporary right and left turn lanes for Princess Anne Road will be required to serve the temporary access to the site. The final location of the temporary turn lanes will be determined at final site plan review. 3. A stormwater management plan with relevant calculations will be required during the detailed site plan review process. 4. Architecture, building materials and color shall substantially adhere to plans presented to the Planning Commission and on file in the Planning Department. Architectural revisions must be approved by the Planning Director or his designee. 5. Prior to final site plan approval, the applicant must submit a detailed landscape plan with meets all requirements outlined in the City Zoning Ordinance. A tree preservation plan shall be presented to staff for approval. 6. One (1) portable modular structure shall be allowed for three (3) years from the date of City Council approval of this 2007-08 Modification of Conditions application. The portable modular structure shall adhere to the following: Agapae International Church Page2of4 a. The portable structure shall be located on the site in substantial accordance with the submitted marked-up site plan entitled "Preliminary Site Plan of Agapae International Church", prepared by Engineering Services and plotted on 07/23/98. A copy of this site plan has been exhibited to the City Council and is on file in the Planning Department. b. The portable structure shall complement the exterior building materials, with respect to color and material, of the existing church, and shall be substantially in conformance with the elevation entitled "Models S04824 and S06424". A copy of the elevation plan has been exhibited to the City Council and is on file in the Planning Department. c. The portable structure shall have skirting around the entire base of the each building to screen the under-carriage of the unit. Foundation landscaping shall be provided along the entire base, except the portion of portable structure adjacent to the existing church. Shrubs shall be a minimum of 36-inches in height and spaced a maximum of four (4) feet off center. d. The applicant shall obtain all necessary permits and inspections from the Department of Planning, Permits and Inspections Division. A certificate of Occupancy shall be obtained before occupancy of the structure. 7. The existing, larger mature trees on the site shall be preserved to every extent possible. 8. The monument sign shall consist of similar materials to match the architecture of the building and landscaping shall be installed around the base of the sign. ^ Considerations: The 2008 approval of the modular unit was based on the premise that the portable structure would be temporarily located on-site, for no more than three years. This temporary structure allowed the church to accommodate growth while building expansion plans were worked on. The applicant's representative explains that the church was excited about building a new Family Life Center with gymnasium; however, the congregation faced a challenge in raising funds as many members lost their jobs due to the downturn of the economy. The church has now repositioned themselves for fund raising by adjusting salaries, downsizing the scale of the expansion to just classroom facilities, and will initiate a formal capital campaign. When conceptual plans for the building expansion are finalized, this Use Permit may need to be modified. Any new or revised conceptual plans should include the church's long range vision or master plan in order to allow the applicant the opportunity to prioritize phasing of development and construct the master plan incrementally. Although continued use of a portable classroom is not consistent with the long term goals of the Comprehensive Plan and the Interfacility Traffic Area and Agapae International Church Page 3 of 4 Vicinity Master Plan, the proposal is an acceptable interim use until a permanent educational wing is built. Given the current economic conditions, Staff is amenable to allowing a time extension of the portable unit while the church continues to raise funds for the building expansion. There was no opposition to the request. ^ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval of this request to the City Council with the following conditions: All conditions with the exception of Condition 6 attached to the modified Conditional Use Permit granted by City Council on February 12, 2008 shall remain in effect. Below is a listing of the modified conditions. 1. There will be one temporary access to the site from Princess Anne Road. Once an alternative access is established, this temporary access shall be removed. 2. Temporary right and left turn lanes for Princess Anne Road will be required to serve the temporary access to the site. The final location of the temporary turn lanes will be determined at final site plan review. 3. A stormwater management plan with relevant calculations will be required during the detailed site plan review process. 4. Architecture, building materials and color shall substantially adhere to plans presented to the Planning Commission and on file in the Planning Department. Architectural revisions must be approved by the Planning Director or his designee. 5. Prior to final site plan approval, the applicant must submit a detailed landscape plan with meets all requirements outlined in the City Zoning Ordinance. A tree preservation plan shall be presented to staff for approval. 6. One portable modular structure shall be allowed for five years from the date of City Council approval of this 2011 Modification of Conditions application. The portable modular structure shall adhere to the following: a. The portable structure shall be located on the site in substantial accordance the submitted marked-up site plan entitle "Preliminary Site Plan of Agapae International Church" prepared by Engineering Services and plotted on 07/23/98. A copy of this site plan has been exhibited to the City Council and is on file in the Planning Department. b. The portable structure shall complement the exterior building materials, with respect to color and material, of the existing church, and shall be substantially in conformance with the elevation entitled "Models SO4824 and S06424". A copy of the elevation plan has been exhibited to the City Council and is on file in the Planning Department. c. The portable structure shall have skirting around the entire base of each building to screen the under-carriage of the unit. Agapae International Church Page 4 of 4 d. The skirting of the portable buildings shall be screened on the side of building facing the parking lot with landscaping in accordance to the submitted elevation entitled "Models SO4824 and S06424". e. The applicant shall obtain all necessary permits and inspections from the Department of Planning, Permits and Inspections Division. A Certificate of Occupancy shall be obtained before occupancy of the structure. 7. The existing, larger mature trees on the site shall be preserved to every extent possible. 8. The monument sign shall consist of similar materials to match the architecture of the building and landscaping shall be installed around the base of the sign. ^ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agen`c'y: Planning Department City Manager: $ 1~ • ~~, PRINCESS ANNE nlnR 1-12 A~apae International Church - a,~;~ ~ .,, .~~j _. ~ . _ ~ ;~ 4.~t _ ~~, •., ~ ..~ ~,~ RID ~• ~ ~ ~.~i ~ ,_ N`3t ,;; ~ y. .. ~. ,., ., ~y.. ~~ M ~ N ~ =.~°~N~`~ ~~ w 'zar'+"ai CoidbiwePnd/i•• °+^ ModfikaNon o1 Condklons yue.F~a.wue. wvar.t one.y. xcn - xma.wi..a c rwl uarnn o.«~ y April 13, 2011 Public Hearing APPLICANT /PROPERTY OWNER: AGAPAE INTERNATIONAL CHURCH STAFF PLANNER: Leslie Bonilla REQUEST: Modification of a Conditional Use Permit approved by City Council on December 3, 1996 for a church and modified by City Council on February 12, 2008. ADDRESS /DESCRIPTION: 2641 Princess Anne Road GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14946414570000 PRINCESS ANNE 10.867 acres Less than 65 d6 DNL SUMMARY OF REQUEST The Conditional Use Permit allowing a church was granted on December 3, 1996 by City Council. That use permit was then modified by City Council on February 12, 2008. Condition Six of the modified use permit allows one modular structure on-site for three years from the 2008 date of approval. The applicant, in this request, asks for an extension to allow the modular to be on-site an additional five years. The modular structure will house classes and programs related to the church's religious services, before and after-school programs, and eventually apre-school. Currently, the church only conducts religious classes and services on-site. Future plans are to operate before and after-school programs and a preschool. The hours of operation for the before and after-school programs are envisioned from 3:00 p.m. to 8:00 p.m. Monday through Friday. The preschool program may operate from 6:30 a.m. to 6:00 p.m. Monday through Friday. The preschool program will accept up to 50 children ranging in age from birth to five years old. The before and after-school programs will serve up to 60 students ranging in age from five to seventeen years old. The church has the appropriate zoning to operate the proposed child- . a AGAPAE INTERNATIONAL CHURCH x Agenda Item 2 Page 1 care and educational programs by right and without need to modify the existing Use Permit. This Modification of Conditions request, therefore, pertains only to the applicant's ability to extend the time period allowing the modular on-site. The February 12, 2008 modified Conditional Use Permit has the following eight conditions: 1. There will be one temporary access to the site from Princess Anne Road. Once an alternative access is established, this temporary access shall be removed. 2. Temporary right and left turn lanes for Princess Anne Road will be required to serve the temporary access to the site. The final location of the temporary turn lanes will be determined at final site plan review. 3. A stormwater management plan with relevant calculations will be required during the detailed site plan review process. 4. Architecture, building materials and color shall substantially adhere to plans presented to the Planning Commission and on file in the Planning Department. Architectural revisions must be approved by the Planning Director or his designee. 5. Prior to final site plan approval, the applicant must submit a detailed landscape plan with meets all requirements outlined in the City Zoning Ordinance. A tree preservation plan shall be presented to staff for approval. 6. One (1) portable modular structure shall be allowed for three (3) years from the date of City Council approval of this 2007-08 Modification of Conditions application. The portable modular structure shall adhere to the following: a. The portable structure shall be located on the site in substantial accordance with the submitted marked-up site plan entitled "Preliminary Site Plan of Agapae International Church", prepared by Engineering Services and plotted on 07/23/98. A copy of this site plan has been exhibited to the City Council and is on file in the Planning Department. b. The portable structure shall complement the exterior building materials, with respect to color and material, of the existing church, and shall be substantially in conformance with the elevation entitled "Models SO4824 and S06424". A copy of the elevation plan has been exhibited to the City Council and is on file in the Planning Department. c. The portable structure shall have skirting around the entire base of the each building to screen the under-carriage of the unit. Foundation landscaping shall be provided along the entire base, except the portion of portable structure adjacent to the existing church. Shrubs shall be a minimum of 36-inches in height and spaced a maximum of four (4) feet off center. d. The applicant shall obtain all necessary permits and inspections from the Department of Planning, Permits and Inspections Division. A certificate of Occupancy shall be obtained before occupancy of the structure. 7. The existing, larger mature trees on the site shall be preserved to every extent possible. 8. The monument sign shall consist of similar materials to match the architecture of the building and landscaping shall be installed around the base of the sign. __ - AGAPAE INTERNATIONAL CHUfCH Agenda Item 2 Page 2 LAND USE AND PLAN INFORMATION EXISTING LAND USE: Church and associated parking SURROUNDING LAND North: • Princess Anne Road USE AND ZONING: Across Princess Anne Road are single-family homes / R-10 Residential District • Vacant land / AG-2 Agricultural District South: Vacant land / AG-1 Agricultural District East: • Vacant land / AG-2 Agricultural District with a Historic District Overlay • Retail uses / B-2 Community Business District with a Historic District Overlay West: • Agricultural land / AG-1 Agricultural District and AG-2 Agricultural District NATURAL RESOURCE AND There are no known significant natural resources or cultural features CULTURAL FEATURES: associated with this site. COMPREHENSIVE PLAN: The Comprehensive Plan identifies this parcel as being within the Historic Princess Anne Center, a subarea of Princess Anne Commons. Princess Anne Commons lies within the Interfacility Traffic Area (ITA) between NAS Oceana and NALF Fentress, a designation that reduced by-right residential density for property within restricted Air Installation Compatible Use Zone (AICUZ); yet overall still offers a unique opportunity for education, entertainment, recreational, habitat preservation, and quality economic development opportunities. The Historic Princess Anne Center, which includes the Municipal Center and the Court Complex, is planned to expand its role as a highly attractive destination with a balanced blend of planned land uses, both public and private, that are compatible with, and complementary of the form and function of the Municipal Center and court complex. Where appropriate, these uses may include residential, office, retail, service, hotel and institutional uses. All projects proposed within the Princess Anne Historic and Cultural District must respect the heritage and reinforce the integrity of the District's historic character. CITY SERVICES MASTER TRANSPORTATION PLAN (MTPI /CAPITAL IMPROVEMENT PROGRAM (CIPI: Princess Anne Road, in front of this site is currently atwo-lane undivided suburban major arterial. The Princess Anne Road - Phase IV (CIP 2.305) project, however, is underway to widen Princess Anne Road to a divided four-lane section with multi-use paths and a capacity of 30,600 ADT (Level of Service "D"). Completion of this VDOT- administered project is scheduled for June 5, 2014. After the project is complete, the site will have access only to the southbound lanes of Princess Anne Road. The site's single access point is off of Princess Anne Road. AGAPAE INTERNATIONAL CHURCH Agenda Item 2 Page 3 TRAFFIC: Street Name present Volume present Capacity Generated Traffic Princess Anne 23,400 ADT 15,000 ADT (Level of Existing Land Use - Road Service "D") 54 Weekday ADT; 384 Sunday ADT Proposed Land Use 3- 54 Weekday ADT; 384 Sunda ADT Average Daily Trips s as defined by a 208 seat church a as defined b a 208 seat church WATER 8~ SEWER: This site currently connects to City water and sanitary sewer. EVALUATION AND RECOMMENDATION The 2008 approval of the modular unit was based on the premise that the portable structure would be temporary located on-site, for no more than three years. This temporary structure allowed the church to accommodate growth while building expansion plans were worked on. The applicant's representative explains that the church was excited about building a new Family Life Center with gymnasium to provide classrooms and a recreational space; however, the congregation faced a challenge in raising funds as many members lost their jobs due to the downturn of the economy. The church has now repositioned themselves for fund raising by adjusting salaries, downsizing the scale of the expansion to just classroom facilities, and will initiate a formal capital campaign. The applicant's representative has informed staff that new conceptual plans are being drawn-up as the last conceptual plans are no longer in line with the churches budget and goals. When conceptual plans for the building expansion are finalized, this Use Permit may need to be modified. Any new or revised conceptual plans should include the church's long range vision or master plan in order to allow the applicant the opportunity to prioritize phasing of development and construct the master plan incrementally. Although continued use of a portable classroom is not consistent with the long term goals of the Comprehensive Plan and the Interfacility Traffic Area and Vicinity Master Plan, the proposal is an acceptable interim use until a permanent educational wing is built. Given the current economic conditions, Staff is amenable to allowing a time extension of the portable unit while the church continues to raise funds for the building expansion. CONDITIONS All conditions with the exception of Condition 6 attached to the modified Conditional Use Permit granted by City Council on February 12, 2008 shall remain in affect. Below is a listing of the modified conditions. 1. There will be one temporary access to the site from Princess Anne Road. Once an alternative access is established, this temporary access shall be removed. AGAPAE INTERNATIONAL CHURCH _~ Agenda Item 2 Page 4 2. Temporary right and left turn lanes for Princess Anne Road will be required to serve the temporary access to the site. The final location of the temporary turn lanes will be determined at final site plan review. 3. A stormwater management plan with relevant calculations will be required during the detailed site plan review process. 4. Architecture, building materials and color shall substantially adhere to plans presented to the Planning Commission and on file in the Planning Department. Architectural revisions must be approved by the Planning Director or his designee. 5. Prior to final site plan approval, the applicant must submit a detailed landscape plan with meets all requirements outlined in the City Zoning Ordinance. A tree preservation plan shall be presented to staff for approval. 6. One portable modular structure shall be allowed for five years from the date of City Council approval of this 2011 Modification of Conditions application. The portable modular structure shall adhere to the following: a. The portable structure shall be located on the site in substantial accordance the submitted marked-up site plan entitle "Preliminary Site Plan of Agapae International Church" prepared by Engineering Services and plotted on 07/23/98. A copy of this site plan has been exhibited to the Citv Council and is on file in the Planning Department. b. The portable structure shall complement the exterior building materials, with respect to color and material, of the existing church, and shall be substantially in conformance with the elevation entitled "Models SO4824 and S06424". A copy of the elevation plan has been exhibited to the Citv Council and is on file in the Planning Department. c. The portable structure shall have skirting around the entire base of each building to screen the under-carriage of the unit. d. The skirting of the portable buildings shall be screened on the side of building facing the parking lot with landscaping in accordance to the submitted elevation entitled "Models SO4824 and S06424". e. The applicant shall obtain all necessary permits and inspections from the Department of Planning, Permits and Inspections Division. A Certificate of Occupancy shall be obtained before occupancy of the structure. 7. The existing, larger mature trees on the site shall be preserved to every extent possible. 8. The monument sign shall consist of similar materials to match the architecture of the building and landscaping shall be installed around the base of the sign. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this Use Permit are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. AGAPAE INTERNATIONAL CHURCH Agenda Item 2 Page. S y. ~~ ~~ N ~~^ ri~Q -r ~~ i`' ~ -, F 3y:^'s ~ ., 'c f ~ ~ s a ~ '~ I rv ,~ i II Y~•'• J ~ ~ ~. 1kfx , ~ ~`.'.' V ~. .. -~ ? ~~V ,, ~ ., ~„~ . k i ~°~ ¢ ;' ,.:!fix a ~' b: 1 s~ x.~~.`~. ~Ye~._ ~A AERIAL OF SITE AGAPAEINTERNA CAT ION i ~ VAL CHURCH ~ Agend a Item 2 ~; Page 6 ;' ~~~ ~~ ~.. ;4 , , .,,, •.. ~ ~! E 1 t } .. ~ i • ' •' ~ ~ , i ~ ~ ~ ~ ~' i fI ' ' . ~ ; •''j` ~ I a ~ + , !? . ~ ~ I I I { `•~ . t' w ` , + • , '~' I ~ I z ~ % ~ I ~ {~ • r~f , ~ , -~--i ~ ' if 377 , )fflef .. + ~? ~ ,I [~ '~~ _ t ~7 '•~Ij i ~ , ,_• +.~~ ~ . t %~ '?' I . ~ ,H., ~ r'l f# , t` J ' '~ '! ~ .y ~ij, i i !! ij , ~ ' •Y'rt ~l • I ; Y, ., ti~(h~~ao ;; r ~ -r- llr • V E i ~ /s . ~ •1, ra. a • I PROPOSED SITE PLAN - - ,..~ AGAPAE INTERNATIONAL CHURCH ~~ '~.~~ Agenda Item 2 ~ ~ ;r Page 7 },' .t 4. !V • _ ~<... PHOTOGRAPH OF EXISTING STRUCTURE ;. AGAPAE INTERNATIONAL CHURCH ~~; Agenda Item 2 Page 8 ~, .. # DATE REQUEST APPLICANT ACTION 1 02/12/2008 Modifications of Conditions Agapae International Church Approved 12/03/1996 Use Permit (church) Agapae International Church Approved 09/27/1994 Modification of Conditions Courthouse Baptist Church Approved 10/26/1993 Use Permit church Victor Ba tist Church A roved 2 04/12/2011 Use Permit (gas station with 7-Eleven Approved convenience store) 04/12/2011 Modification of Conditions 7-Eleven Approved 03/27/2007 Use Permit (gas station with Wawa, Inc., a New Jersey Corporation Approved convenience store) 03/27/2007 Modification of Proffers Armada Hoffler Commerce Assoc., L.P. Approved 06/08/2004 Rezoning (AG-1, AG-2 & B-1 Courthouse Marketplace, LLC Approved with historic & cultural district overlay to conditional B-2 with historic & cultural district overla ZONING HISTORY continued AGAPAE INTERNATIONAL CHURCH Agenda Item 2 Page 9 ~~ -+ ~.i _ .,~. ~~ 3 05/27/1997 Rezoning (O-2, B-2, R-10, P-1 City of Virginia Beach Approved & H-1 to AG-1) 05/27/1997 Use Permit (outdoor recreation City of Virginia Beach Approved facility) 05/14/1991 Rezonin AG-1 & AG-2 to O-2 Lake Rid a Assoc. A roved 4 10/13/1992 Subdivision Variance John R. Brani an III A roved 5 09/22/1998 Use Permit (fiber optic Cox Inc. dba Cox Communications Approved transmission facility) Hampton Roads 09/22/1998 Rezoning (AG-2 to Conditional Cox Inc. dba Cox Communications Approved g-2 Ham ton Roads 6 08/08/1995 Reconsideration of Conditions David Exum A roved 7 09/25/1990 Rezoning (AG-2 to B-1) JDH / LBS, a gen. part Approved 04/27/1993 Rezonin B-1 to R-10 Lar B Sli low A roved 8 06/10/1997 Use Permit church First L nnhaven Ba tist A roved ZONING HISTORY <- AGAPAE INTERNATIONAL CHURCH s Agenda Item 2 Page 10 DISCLOSURE STATEMENT c ~~~ ,tea ~~ ~~ ~~'~~i D~~ ~~..~ ~_~ _O _~ ~~y A O APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) ~90.~ Ini~afio~et i;,{qu21t Clarence E/ McPherson (PastorlTrustee), Elder Ed Thomas (Trustee), Ekter,lames McPhers~ (Trustee) 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ® Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER D13CLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated 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) _`~~me c~.5 ~hh io. 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ® Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & 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 x If yes, what is the name of the official or employee and the nature of their interest? AAOdification of CondMions APDNalion Pegg 10 of t t Revised 7!3/07 DISCLOSURE STATEMENT AGAPAE INTERNATIONAL CHURCH Agenda Item 2 Page 11 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or wiU 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) ' "Parent-subsidiary relationship" means °a relati~ship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation " Sea State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. Z "Affiliated business entity relationship" means's relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a contrdling ownership interest in the other business entity, (ii) a controlNrrg owner in one entity is also a controlling owner in the other entity or (iii} there is shared management or control between the business entities. Factors that should be considered in detemrining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; 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 Govemmerrt Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information rantained herein is true and aoauate. 1 understand that, upon receipt of notNication (postcard} that the application has been scheduled for public hearing, l am responsible for obtaining and pasting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instruetiore in this package. The undersigned also consents to entry upon the subject property by employees of the Depertmenl of Planning to photograph and view ~e sites for purposes of processing and evaluating this application. Applicant's Signature Clarence E. McPherson Ph.D. Print Name Property Ownets Signaturo (if different than applicant) Print Name Moe111urion at C.orMnlara Applkatfon a,ye ~, w t+ Ro~ssd ~nnoo~ Icy ~.~ ~~ O 1~~ ~y V 0 Icy w ~~ A AGAPAEINTERNATIONALCHURCH Agenda Item 2 Page 12 Item #2 Agapae International Church Modification of Conditions 2641 Princess Anne Road District 7 Princess Anne April 13, 2011 CONSENT An application of Agapae International Church for a Modification of a Conditional Use Permit approved by City Council on December 3, 1996 for a church and modified by City council on February 12, 2008 on property located at 2641 Princess Anne Road, District 7, Princess Anne. GPIN: 1494-64-1457-0000. CONDITIONS All conditions with the exception of Condition 6 attached to the modified Conditional Use Permit granted by City Council on February 12, 2008 shall remain in affect. Below is a listing of the modified conditions. 1. There will be one temporary access to the site from Princess Anne Road. Once an alternative access is established, this temporary access shall be removed. 2. Temporary right and left turn lanes for Princess Anne Road will be required to serve the temporary access to the site. The final location of the temporary turn lanes will be determined at final site plan review. 3. A stormwater management plan with relevant calculations will be required during the detailed site plan review process. 4. Architecture, building materials and color shall substantially adhere to plans presented to the Planning Commission and on file in the Planning Department. Architectural revisions must be approved by the Planning Director or his designee. 5. Prior to final site plan approval, the applicant must submit a detailed landscape plan with meets all requirements outlined in the City Zoning Ordinance. A tree preservation plan shall be presented to staff for approval. 6. One portable modular structure shall be allowed for five years from the date of City Council approval of this 2011 Modification of Conditions application. The portable modular structure shall adhere to the following: a. The portable structure shall be located on the site in substantial accordance the submitted marked-up site plan entitle "Preliminary Site Plan of Aeapae International Church" prepared by En~ineerin~ Services and plotted on 07/23/98. A copy of this site plan has been exhibited to the City Council and is on file in the Plannine Department. b. The portable structure shall complement the exterior buildine materials, with respect to color and material, of the existine church, and shall be substantially in conformance with the elevation entitled "Models 504824 and 506424". A copy of the elevation plan has been exhibited to the City Council and is on file in the Plannine Department. c. The portable structure shall have skirtine around the entire base of each building to screen the under-carriage of the unit. d. The skirtine of the portable buildines shall be screened on the side of buildine facing the parkine lot with landscaping in accordance to the submitted elevation entitled "Models 504824 and Item #2 Agaepae International Church Page 2 506424". The applicant shall obtain all necessary permits and inspections from the Department of Plannine Permits and Inspections Division. A Certificate of Occupancy shall be obtained before occupancy of the structure. 7. The existing, larger mature trees on the site shall be preserved to every extent possible. 8. The monument sign shall consist of similar materials to match the architecture of the building and landscaping shall be installed around the base of the sign. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this Use Permit are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. AYE 10 NAY 0 ABS 0 ABSENT 1 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE HORSLEY ABSENT LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE THORNTON AYE By a vote of 10-0, the Board approved item 2 for consent. Pastor Dr. Clarence McPherson appeared before the Board. There was no opposition. U a a 3 W C~ do -A d c~ m N Q Q h: 4~ C C C N C a w c 0 ~~~ F ~~~~ t «, ..~•. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: WHITAKER PLACE, LLC/JACQUELINE BULLOCK GLASPIE/MONICA JOHNSON SIMONS, Change of Zoning District Classification, R-7.5 Residential District to Conditional PD-H2 (A-12) Planned Unit Development Overlay and Apartment District, 467 & 473 N. Witchduck Road (GPIN 1467888153;1467886085). Density 9.5 units/acre Comprehensive Plan -Suburban Area. BAYSIDE DISTRICT MEETING DATE: May 24, 2011 ^ Background: The applicant proposes to rezone the existing R-7.5 properties to PD-H2 Planned Unit Development (A-12 Apartment) and develop the sites with 23 single family dwellings. The proposed density will be 9.5 units to the acre, lower than the densities of neighboring A-12 and A-18 Apartment districts to the west. The submitted concept plan depicts a rectangular shaped site on Witchduck Road. Twenty-three single family dwellings are depicted on the concept, as well as open space areas, and landscaping. The proposed site layout observes a minimum 30-foot setback from North Witchduck Road, 10-foot side yard setbacks, and a 20-foot rear yard setback. There is a minimum 10-foot separation between units. Access to the site will be via a single-entrance from Witchduck Road. The proposed single-family dwellings are bungalow style homes with a minimum of 1,350 square feet. Proposed building materials include a combination of architectural grade roof shingles, raised seam metal roof accents, faux cedar vinyl, beaded vinyl, vinyl and brick skirts. Several of the proposed models have trellis fixtures over the garages. The proposed models have a mix of single-car and double-car garages. The proposed open space area slightly exceeds the required 15 percent. The open space located along the frontage of the site and contains berms, landscaping, and benches. To the rear of the site, in the northwest and southwest corners, are two open space areas containing paths, benches, and a gazebo. ^ Considerations: The site does not meet the required five-acre minimum lot area for the Planned Unit Development District (PD-H2). However the City Zoning Ordinance states "any petition for which the parcel involved or structure on the parcel does not meet minimum area or dimensional restrictions shall be processed nevertheless, but shall not be approved by council unless it finds that either special circumstances pertinent to the site or special conditions attached to the petition pursuant to subsection (h) above satisfactorily offset the negative effects inherent in the area or dimensional deficiency". Staff finds that this request satisfactorily offsets any negative impact in the immediate area. By using the PD-H2 District, it allows for more flexibility in the site design and building type. The Whitaker Place Page 2 of 4 applicant proposes 23 detached single-family dwellings. The proposed homes will be approximately 1,300 square feet in area with a garage and on-site parking. Staff recommends approval of the Conditional Rezoning request with the submitted proffers. The proposed conditional rezoning is consistent with the policies of the Comprehensive Plan in terms of the proposed use and density. While the surrounding developed area is multi-family, the proposed 9.5 unit per acre development is similar in density and compatible with surrounding land uses. There was no opposition to the request. ^ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval of this request to the City Council with the following proffers: The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the Property is developed, it shall be as a residential condominium, substantially in accordance with the Preliminary Site Plan designated "WHITAKERS PLACE N. Witchduck Road, VIRGINIA BEACH, CA", dated 12/01/10, prepared by Pinnacle Group Engineering, Inc., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Concept Plan"). PROFFER 2: When the Property is developed, vehicular Ingress and Egress to the Property shall be limited to one (1) entrance from Witchduck Road as depicted on the Concept Plan. As a condition of Site Plan approval by the Grantee, Grantor shall grant, convey and record a Declaration to and for the benefit of the Grantee, binding upon the Condominium Association and Future Owners of the subject property, permitting the Grantee to close the depicted entrance from Witchduck Road, if a new residential street connection is provided across the adjoining parcel on the south side of the subject Property with access to Witchduck Road. The new residential street may be public or private. It the new residential street is private, there must be a perpetual ingress /egress easement granted to the Condominium Association and owners of the subject Property who shall not be required to incur any costs associated with the construction of the new residential street or with the closure and removal of the existing entrance to the subject Property. The then existing entrance shall be replaced with a cul-de-sac or hammer-head (for vehicles to turn around without cost to the Condominium Association and owners of the subject Property. The Condominium Association on behalf of the owners of the subject Property shall be authorized and required to execute a Shared Maintenance Agreement with respect to the above referenced new residential street, within the perpetual ingress /egress easement, which provides that the owners of the subject Property shall be responsible for no more than forty (40%) of the future repair, maintenance and repaving of the street within the Whitaker Place Page 3 of 4 easement. PROFFER 3: The total number of dwelling units permitted to be constructed on the Property shall not exceed twenty-three (23). Each dwelling unit shall contain a minimum of 1350 square feet of living area, and a one (1) car garage. PROFFER 4: The architectural design of the residential buildings will be substantially as depicted on the six (6) elevations designated "ELEVATION ONE", ELEVATION TWO", "ELEVATION THREE", "ELEVATION FOUR", "Thatcher" and "Chatuea", have been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Elevations"). The exterior building materials shall be a combination of architectural shingles, raised seam metal roof accents, faux cedar vinyl, beaded vinyl, vinyl and brick skirts. PROFFER 5: The dimensional requirements applicable to Whitaker Place shall be as follows: • Minimum Distance from Dwelling to Edge of Curb on Interior Streets: Front /Garage -18 feet Side of Dwelling - 8.3 feet • Minimum Setback from Adjacent Properties Front - 30 feet Sides - 10 feet Rear - 20 feet • Minimum Distance between Residential Buildings - 10 feet • A "Gazebo" shall be permitted as an accessory structure within the 30 foot front yard setback, as depicted on the Concept Plan PROFFER 6: When the Property is developed, the Grantor shall record a Declaration submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. PROFFER 7: The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are open spaces which shall be utilized as such. Open spaces shall be rezoned P-1 Preservation District prior to Site Plan approval and shall be maintained and used by the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District"). PROFFER 8: 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. Whitaker Place Page 4 of 4 STAFF COMMENTS: The proffers are acceptable as they insure the site will be developed in accordance with the submitted preliminary site and elevation plans. The submitted preliminary site plan depicts a coordinated development of the site in terms of design, landscaping, parking layout, and traffic control and circulation within the site. The submitted preliminary elevation plans depicf proposed dwellings that are complementary to existing dwellings in the area The City Attorney's Office has reviewed the proffer agreement dated December 29, 2010, and found it to be legally sufficient and in acceptable legal form. ^ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting DepartmentlAgency: Planning Department City Manager: ~~ 1~~,, aarsioE MaP D-6 Whitaker Place L.L.C. i R7.8. `, R7 0 CwMklona/ Zonhrg Change hom R7.b [o PDh2 (A7~ MYSI DE CoraiMbna/ Zonh~g Change /iwn R7S m PDM (A1~ 7& April 13, 2011 Public Heari APPLICANT WHITAKER PLACE L.L. C PROPERTY OWNER JACQUELINE BULLOCK GLASPIE; MONIC~ JOHNSON SIMONY PROPERTY OWNEF DOWN PROPERTIES, INC STAFF PLANNER: Faith Christie REQUEST: Conditional Change of Zoning (R-7.5 Residential to PD-H2 Planned Unit Development underlying A-12 Apartment)) ADDRESS /DESCRIPTION: 467 and 473 North Witchduck Road GPIN: ELECTION DISTRICT: SITE SIZE: 2.4 acres AICUZ: 14678881530000 BAYSIDE 81,664 square feet Less than 65 dB DNL 14678860850000 23,200 square feet ~. ~., s,_~ Nhitaker P lace , ~~~ da Items 7 & 8 i `° ~~ Pa ge 1 ~ '' ;, ~ ~. *~ ~ SUMMARY OF REQUEST The applicant proposes to rezone the existing R-7.5 properties to PD-H2 Planned Unit Development (A- 12Apartment) and develop the sites with 23 single family dwellings. The proposed density will be 9.5 units to the acre, lower than surrounding densities of A-12 and A-18 Apartment districts. The submitted concept plan depicts a rectangular shaped site on Witchduck Road. Twenty-three single family dwellings are depicted on the concept, as well as open space areas, and landscaping. The proposed site layout observes a minimum 30-foot setback from North Witchduck Road, 10-foot side yard setbacks, and a 20-foot rear yard setback. There is a minimum 10-foot separation between units. Access to the site will be via asingle-entrance from Witchduck Road. The entrance is defined with a four foot median separating the incoming and departing traffic. A 26-foot road meanders through the project. The proposed single-family dwellings are bungalow style homes with a minimum of 1,350 square feet. Proposed building materials include a combination of architectural grade roof shingles, raised seam metal roof accents, faux cedar vinyl, beaded vinyl, vinyl and brick skirts. Several of the proposed models have trellis fixtures over the garages. The proposed models have a mix of single-car and double-car garages. The proposed open space area slightly exceeds the required 15 percent. The open space located along the frontage of the site and contains berms, landscaping, and benches. To the rear of the site, in the northwest and southwest corners, are two open space areas containing paths, benches, and a gazebo. LAND USE AND PLAN INFORMATION EXISTING LAND USE: Vacant structures, zoned R-7.5 Residential SURROUNDING LAND North: . Commercial uses / B-2 Business USE AND ZONING: South: Single-family dwellings / R-7.5 Residential East: • Witchduck Road • Across Witchduck Road is the Bayside Acres subdivision / R- 7.5 Residential West: . Multi-family uses / A-12 & A-18 Apartment NATURAL RESOURCE AND There are no natural resources associated with the site. CULTURAL FEATURES: Culturally speaking the site was previously occupied by a restaurant / lounge, Whitakers Grill, a small country store, and a barber shop, Matthews, which serviced the surrounding Southgate /Bayside Acres neighborhoods. COMPREHENSIVE PLAN: The Comprehensive Plan designates this area of the City as Suburban Area. The overriding objective of the Suburban Area policies is to protect the predominantly suburban character defined by the stable - ~,« ~.. 1lVhitaker Pace Agenda Items 7 & 8 Page 2 neighborhoods of our community. The goal of preserving neighborhood quality requires that all development either maintain or enhance the existing neighborhood through compatibility with surroundings, quality and attractiveness of site and buildings, and improved mobility. All new uses are to be compatible in type, size, and intensity to the existing area. In addition, the Plan's Housing and Neighborhood policies promote diversity in type, value and design of housing and neighborhoods to help the City meet its goals for a quality physical environment, family and youth opportunities, and economic vitality. CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) /CAPITAL IMPROVEMENT PROGRAM (CIP): The site is located on the west (southbound) side of Witchduck Road; a four lane divided urban minor arterial. The conceptual site plan shows one un-signalized entrance on Witchduck Road. Because Witchduck Road is divided, this will be a right-in /right-out entrance providing access to the southbound lanes only. The Master Transportation Plan Major Street Network Ultimate Rights-of-Way, adopted May 2010, lists this segment of Witchduck Road as having an ultimate 4-lane section in a 110' right-of-way. There are no CIP projects on this segment of Witchduck Road. Traffic Engineering Comments: 1. The preliminary site plan shows the entrance with a gate 25' from the property line; Public Works Standards require a minimum 30' throat length. 2. The current proposal for 23 houses does not necessitate aright-turn lane on Witchduck Road. However, because only one entrance will be allowed to the entire development, if the adjacent properties to the south are bought and developed, the total peak hour entering traffic would warrant a right-turn lane if the total number of single family detached houses were 47 or greater (i.e. if 22 or more single-family detached units were built in the adjacent properties). The currently proposed entrance location does not provide sufficient frontage for aright-turn lane. Traffic Engineering's desire would be that the applicant builds the entrance as shown in the current preliminary site plan, and proffer that this entrance will be closed and replaced by a new entrance and right-turn lane if the adjacent properties are developed. The location of the new entrance in the adjacent properties would be evaluated at the time the adjacent properties were developed. Public Works Water Resources Engineering recommends that a 20 foot wide drainage easement is reserved from the proposed private road to the western property line for installation and maintenance of a proposed private storm water drainage pipe. TRAFFIC: Street Name present Volume present Capacity Generated Traffic Witchduck Road 17,200 ADT 22,800 ADT Existing Land Use - 20 ADT (2 AM Peak Hour Trips / 3 PM Peak Hour Trips) Proposed Land Use 3- 290 ADT 20 AM Peak Whitaker Place Agenda Items 7 & 8 Page 3 Hour Trips / 30 PM Peak Hour Trips) Average Daily Trips Zas defined by 2single-family dwellings s as defined by 25 single-family dwellings WATER: This site is connected to City Water. The existing meter may be used or upgraded to accommodate the proposed development. SEWER: The site is connected to City Sewer. SCHOOLS: School Capacity Generation' Change s Enrollment Luxford Elementary 522 536 4 2 Bayside Middle 977 1,070 2 1 Bayside High 1,842 1,708 3 1 "generation" represents the number of students that the development will add to the school z "change" represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be ositive additional students or ne ative fewer students . EVALUATION AND RECOMMENDATION The site does not meet the required five-acre minimum lot area for the Planned Unit Development District (PD-H2). However the City Zoning Ordinance states "any petition for which the parcel involved or structure on the parcel does not meet minimum area or dimensional restrictions shall be processed nevertheless, but shall not be approved by council unless it finds that either special circumstances pertinent to the site or special conditions attached to the petition pursuant to subsection (h) above satisfactorily offset the negative effects inherent in the area or dimensional deficiency". Staff finds that this request satisfactorily offsets any negative impact in the immediate area. By using the PD-H2 District, it allows for more flexibility in the site design and building type. The applicant proposes 23 detached single- family dwellings. The proposed homes will be approximately 1,300 square feet in area with a garage and on-site parking. ~ , .Open space is scattered throughout the site Staff recommends approval of the Conditional Rezoning request with the submitted proffers listed below. The proposed conditional rezoning is consistent with the policies of the Comprehensive Plan in terms of the proposed use and density. While the surrounding developed area is multi-family, the proposed 9.5 unit per acre development is similar in density and compatible with surrounding land uses. The size of the proposed homes is consistent with the existing homes in the immediate area. The single family condominium also contributes to a diversity of housing choices in the City. Whitaker Place Agenda Items 7 & 8 Page 4 The applicant is to be commended for working with staff to produce a quality project. The applicant first approached staff with a request to rezone to A-18 Apartment and develop 32 townhomes on the site. Through hard work and assistance from other staff members the applicant now proposes a small single- family subdivision at a density less than surrounding multi-family projects. The proposed project provides a mix of bungalow style homes and landscaped open space areas that will be available to the home owners. The applicant has also made provisions in the proffer agreement for controlled access should the sites to south develop. Staff therefore finds the request acceptable with the submitted proffers and plans. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the Property is developed, it shall be as a residential condominium, substantially in accordance with the Preliminary Site Plan designated "WHITAKERS PLACE N. Witchduck Road, VIRGINIA BEACH, CA", dated 12/01/10, prepared by Pinnacle Group Engineering, Inc., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Concept Plan"). PROFFER 2: When the Property is developed, vehicular Ingress and Egress to the Property shall be limited to one (1) entrance from Witchduck Road as depicted on the Concept Plan. As a condition of Site Plan approval by the Grantee, Grantor shall grant, convey and record a Declaration to and for the benefit of the Grantee, binding upon the Condominium Association and Future Owners of the subject property, permitting the Grantee to close the depicted entrance from Witchduck Road, if a new residential street connection is provided across the adjoining parcel on the south side of the subject Property with access to Witchduck Road. The new residential street may be public or private. It the new residential street is private, there must be a perpetual ingress /egress easement granted to the Condominium Association and owners of the subject Property who shall not be required to incur any costs associated with the construction of the new residential street or with the closure and removal of the existing entrance to the subject Property. The then existing entrance shall be replaced with a cul-de-sac or hammer-head (for vehicles to turn around without cost to the Condominium Association and owners of the subject Property. The Condominium Association on behalf of the owners of the subject Property shall be authorized and required to execute a Shared Maintenance Agreement with respect to the above referenced new residential street, within the perpetual ingress /egress easement, which provides that the owners of the subject Property shall be responsible for no more than forty (40%) of the future repair, maintenance and repaving of the street within the easement. PROFFER 3: The total number of dwelling units permitted to be constructed on the Property shall not exceed twenty-three (23). Each dwelling unit shall contain a minimum of 1350 square feet of living area, and a one (1) car garage. PROFFER 4: The architectural design of the residential buildings will be substantially as depicted on the six (6) elevations Whitaker Piace Agenda Items 7 & 8 Page. 5 designated "ELEVATION ONE", ELEVATION TWO", "ELEVATION THREE", "ELEVATION FOUR", "Thatcher" and "Chatuea", have been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Elevations"). The exterior building materials shall be a combination of architectural shingles, raised seam metal roof accents, faux cedar vinyl, beaded vinyl, vinyl and brick skirts. PROFFER 5: The dimensional requirements applicable to Whitaker Place shall be as follows: • Minimum Distance from Dwelling to Edge of Curb on Interior Streets: Front /Garage -18 feet Side of Dwelling - 8.3 feet • Minimum Setback from Adjacent Properties Front - 30 feet Sides -10 feet Rear - 20 feet • Minimum Distance between Residential Buildings -10 feet • A "Gazebo" shall be permitted as an accessory structure within the 30 foot front yard setback, as depicted on the Concept Plan PROFFER 6: When the Property is developed, the Grantor shall record a Declaration submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. PROFFER 7: The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are open spaces which shall be utilized as such. Open spaces shall be rezoned P-1 Preservation District prior to Site Plan approval and shall be maintained and used by the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District"). PROFFER 8: 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. STAFF COMMENTS: The proffers are acceptable as they insure the site will be developed in accordance with the submitted preliminary site and elevation plans. The submitted preliminary site plan depicts a coordinated development of the site in terms of design, landscaping, parking layout, and traffic control and circulation within the site. The submitted preliminary elevation plans depict proposed dwellings that are complementary to existing dwellings in the area The City Attorney's Office has reviewed the proffer agreement dated December 29, 2010, and found it to be legally sufficient and in acceptable legal form. _~ _` Whitaker Ptace Agenda Items 7 & 8 Page 6 NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this change of zoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this change of zoning are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. Whitaker Puce Agenda Items 7 & 8 Page 7 ~ .r~~, s , ...9 .c' ~r ~ ~~; E~-•+, ~",f ~ ,~ A~ i~ ~~. ~;- Fail yy ` if ~4 c .~... p 8 R ,1 r k, ~~_ W ,,~~ ~ x AERIAL OF SITE Whitaker Agenda Items n CF ~< r~;~~ - ~~', ~,~~ ce "~" ~8 ~ K ~. 8 ~~ r ~~ , '~NIT'JNIM33Ni'~N3 ~~~4• ,~ ~ ,mow NYId 3115 AtlrNlnn3ad df10N0 3lJYNNid ~~ ,, 3xld tl31Q11NM 1 ~a -.,. 0~ ~ tl _ ~ ~~w i + ~ ~ ~: 1 - 1''~,': ,... ~ - ¢ - Tr - 1~#~: ~*~ ~ ~ R 1 I~F~ ., ,~ ( ; i { ~ I e ~ ~ i . e "~ 1 ~ I' ~~ 1 ~ t ~ ~, ~ ~ !;6 ~' ~ Y 1 ~Yljf( II~E'~.:'i ~~El~I:Il~!i ~'~ ~tE,iEli~~'~eliiE9Pll;~i~~~~e;i1~ ai<~~ ~. U ~ (; --_:- ~ II qqi :! I `I .~ ~i ti ;! 11t ., t . r. ~ :. '~fi~~j ~~~~ : .... Ifl~= 1; ~• i ~ . - _ - ~~ ~ o , l ~ F iii f. 1 I I ~ ,, _~. . __.. _ - ~ ~1 1 : . 1 i ~#1~ :~ ~ i k,l _L- ~,!- 7 .~ J. ~6 j - - ~~ _... ~~_ tl !. ~ E j~il 1 Q'.S r, 1 jl i~ ~+i 's~ ~ ~ii~ 'ti 1 '` I PROPOSED SITE PLAN - ~. Whitaker Place ~~: Agenda Items 7 & 8 ~° °~ Page 9 '~~~' ~~ 1-. g~~~ ~~;~; ~~ ELEVATION ONE Typical Exterior Finishes 1. Roof: 25 yr Architecturol Shingles 2. Brick Skirt B° Front Only 3. Carage Trellis: Painted Treated Wood 4. Columns: Pointed Treoted Wood 5. Siding Horiz. Siding abd Shake Siding ELEVATION TWO 7ypicol Exterior Finishes 1. Root: 25 yr Architectural Shingles 2. Brick Skirt 8" Front Only 3. Goroge Trellis: Painted Treated Wood 4. Columns: Pointed Treoted Wood 5. Siding Horiz. Siding abd Shake Siding PROPOSED BUILDING ELEVATIONS ~a Items 7 & 8 ' ~~ Page 10 ~ ELEVATION THREE Typicol Exterior Finishes 1. Roof: 25 yr Archilecturol Shingles 2. Brick Skirt 8~ Front Only 3. Goroge Trellis: Pointed Treoled Wood 4. Columns: Painted Treated Wood 5. Siding Horiz. Siding ob Siding ELEVATION FOUR Typicol Exterior Finishes 1. Roof: 25 yr Archilecturol Shingles 2. Brick Skirt B" Front Only 3. Garage Trellis: Painted Treated Woo 4. Columns: Painted Treated Woo 5. Siding Horiz. Siding obd Sh Siding PROPOSED BUILDING ELEVATIONS ~ ~ '~ Whitaker Place ', °~ Agenda Items 7 & 8 ~; Page 11 ' ' ~, ~~~~~ ~ v~ ~~ `~ ~ ~~, `:`l/, v~ BAYS I DE ~'~~~ ' ~ Whitaker Place L.L.C. R7.5 -' 1 ~ J / <'~ 1 %' / ~ ~ Zr 7 ~ --- - I =~ -- ~. ~ C - ~~ A18 ~ ~~ r r--- ~ _ ~ ~ ° ~ ~ ~ ~~ ~ ~ ~ _ ~_ : ~ - a y _ r ;_ r~~ 1 ! ~- _ _ 1~ f f ~ 0 i ~~ ~ v ~..e.a, R7.5 ~` ~ ~ ~ L, ~~ ~ ~-~ ~ ~ L ~,~ - ~ ~, a .~~ ,~ ~~ _~~ Conditional Zoning Change from R7.5 to PDH2 (A 12) # DATE REQUEST ACTION 1 12/14/10 Conditional Use Permit (Church) Approved 2/9/10 Conditional Use Permit (Church) Approved 5/26/98 Conditional Use Permit (Automotive Repair) Approved 9/25/97 Conditional Use Permit Automotive Re air A roved 2 3/28/95 Conditional Use Permit Landfill Denied ZONING HISTORY y J1lhitaker Place -'~~ Ada Items 7 & 8 ~~ ~~ Page 13 ~ '" ~~ ; a..~i;r~ ~u; DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) WhRaker Place, L.L.C.: Robert W. Horton 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ^ Check here if the applicant is NOT a corporation, partnership, firth, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated 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) Jacqueline Bullock Glaspie and Monica Johnson Simons 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) X Check here ff the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & See next page for footnotes Conditional Rezoning Application Page ~ 1 of 12 Rmlaed 9/1/2004 1~~ V ~~ ~~ O N O ~y ~~ A O V ~ a DISCLOSURE STATEMIE1117 Whitaker Pace Agenda Items ~.& 8 Page. a 0 ~~ V ~~~ ~~ O N Z O ~~ A O V 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) Sykes, Bourdon, Ahem 8~ Levy, P.C. The Pinnacle Group, Inc. ' °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 Govemment Conflict of Interests Act, Va. Code § 2.2-3101. 2 "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 entities. Factors that should be considered 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 entities; 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 Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing actor 't g t the instructions in this package. Wh' r ce L.L. . By: Robert W. Horton Applicants ignature Print Name Jacqueline Bullock Glaspie R flY. ~16'V~1Nl _S Monica Johnson Simons Property Owner Signature if different than applicant) Print Name CondRionel Rezoning Application Pape 12 0112 Revised 9/12004 DISCLOSURE A'I Whitaker Puce Agenda Items 7 & 8 Page 15 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Whitaker Place, L.L.C.: Robert W. Horton 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) O Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated 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) Downs Properties, Inc.: Donald Wayne Downs, President; Matthew L. Kukrall, Vice President; Gattress Andrew Downs, Director 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list ff necessary) Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & See next page for footnotes Conditional Rezoning Application Page 11 of 12 Revised 9/1/2004 z 0 a c7 z 0 NW K. z 0 A z 0 v DISCLOSURE STATEMENT Whitaker Place Agenda Items 7 & 8 Page 16 Z O v as c~ z 0 N O ~y F~~ O V 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'rf necessary) Sykes, Bourdon, Ahem & Levy, P.C. The Pinnacle Group, Inc. ' "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 Govemment Conflict of Interests Act, Va. Code § 2.2-3101. 2 "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 entities. Factors that should be considered 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 entities; 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 entties." See State and Local Govemment Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of not~cetion (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing accordi to a instructions i this ackage. Whits ~~PI e, By. ccc / 5 Robert W. Horton Appli n s ignature Print Name Downs Properties, Inc. BY Property Owners Signature (if different than applicant) Print Name Conditional Rezonirq ApplkxBOn Pape 12 of 12 Revbed 9H2O0/ DISCLOSURE STATEMENT. Whitaker Place Agenda Items 7 & 8 Page 17 Item #7 & 8 Whitaker Place, L.L.C. Conditional Change of Zoning 467 & 473 North Witchduck Road District 4 Bayside April 13, 2011 CONSENT An application of Whitaker Place, L .L.C. for a Conditional Change of Zoning (R-7.5 Residential to PD-H2 Planned Unit Development underlying A-12 Apartment) on property located at 467 & 473 North Witchduck Road, District 4, Bayside. GPIN: 1467-88-8153-0000; 1467-88-6085-0000. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the Property is developed, it shall be as a residential condominium, substantially in accordance with the Preliminary Site Plan designated "WHITAKERS PLACE N. Witchduck Road, VIRGINIA BEACH, CA", dated 12/01/10, prepared by Pinnacle Group Engineering, Inc., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Concept Plan"). PROFFER 2: When the Property is developed, vehicular Ingress and Egress to the Property shall be limited to one (1) entrance from Witchduck Road as depicted on the Concept Plan. As a condition of Site Plan approval by the Grantee, Grantor shall grant, convey and record a Declaration to and for the benefit of the Grantee, binding upon the Condominium Association and Future Owners of the subject property, permitting the Grantee to close the depicted entrance from Witchduck Road, if a new residential street connection is provided across the adjoining parcel on the south side of the subject Property with access to Witchduck Road. The new residential street may be public or private. It the new residential street is private, there must be a perpetual ingress /egress easement granted to the Condominium Association and owners of the subject Property who shall not be required to incur any costs associated with the construction of the new residential street or with the closure and removal of the existing entrance to the subject Property. The then existing entrance shall be replaced with a cul-de-sac or hammer-head (for vehicles to turn around without cost to the Condominium Association and owners of the subject Property. The Condominium Association on behalf of the owners of the subject Property shall be authorized and required to execute a Shared Maintenance Agreement with respect to the above referenced new residential street, within the perpetual ingress /egress easement, which provides that the owners of the subject Property shall be responsible for no more than forty (40%) of the future repair, maintenance and repaving of the street within the easement. PROFFER 3: The total number of dwelling units permitted to be constructed on the Property shall not exceed twenty- Item #7 & 8 Whitaker Place, L.L.C. Page 2 three (23). Each dwelling unit shall contain a minimum of 1350 square feet of living area, and a one (1) car garage. PROFFER 4: The architectural design of the residential buildings will be substantially as depicted on the six (6) elevations designated "ELEVATION ONE", ELEVATION TWO", "ELEVATION THREE", "ELEVATION FOUR", "Thatcher" and "Chatuea", have been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Elevations"). The exterior building materials shall be a combination of architectural shingles, raised seam metal roof accents, faux cedar vinyl, beaded vinyl, vinyl and brick skirts. PROFFER 5: The dimensional requirements applicable to Whitaker Place shall be as follows: • Minimum Distance from Dwelling to Edge of Curb on Interior Streets: Front /Garage -18 feet Side of Dwelling - 8.3 feet • Minimum Setback from Adjacent Properties Front - 30 feet Sides -10 feet Rear - 20 feet • Minimum Distance between Residential Buildings -10 feet • A "Gazebo" shall be permitted as an accessory structure within the 30 foot front yard setback, as depicted on the Concept Plan PROFFER 6: When the Property is developed, the Grantor shall record a Declaration submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. PROFFER 7: The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are open spaces which shall be utilized as such. Open spaces shall be rezoned P-1 Preservation District prior to Site Plan approval and shall be maintained and used by the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District"). PROFFER 8: 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. STAFF COMMENTS: The proffers are acceptable as they insure the site will be developed in accordance with the submitted preliminary site and elevation plans. The submitted preliminary site plan depicts a coordinated development of the site in terms of design, landscaping, parking layout, and traffic control and circulation Item #7 & 8 Whitaker Place, L.L.C. Page 3 within the site. The submitted preliminary elevation plans depict proposed dwellings that are complementary to existing dwellings in the area The City Attorney's Office has reviewed the proffer agreement dated December 29, 2010, and found it to be legally sufficient and in acceptable legal form. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this change of zoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this change of zoning are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. AYE 10 NAY 0 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE HORSLEY LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE THORNTON AYE ABS 0 ABSENT 1 By a vote of 10-0, the Board approved item 7 & 8 for consent. ABSENT Eddie Bourdon appeared before the Board on behalf of the applicant. There was no opposition. CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7941 TO: Mark D. Stiles FROM: B. Ka Wilson~~-\~ Y DATE: May 11, 2011 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Whitaker Place, L.L.C. The above-referenced conditional zoning application is scheduled to be heard by the City Council on May 24, 2011. I have reviewed the subject proffer agreement, dated December 29, 2010 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;~ MONICA JOHNSON SIMONS JACQUELINE BULLOCK GLASPIE DOWNS PROPERTIES, INC., a Virginia corporation WHITAKER PLACE, L.L.C., a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 29tH day of December, 2oio, by and between MONICA JOHNSON SIMONS and JACQUELINE BULLOCK GLASPIE, parties of the first part, Grantors; DOWNS PROPERTIES, INC., a Virginia corporation, party of the second part, Grantor; WHITAKER PLACE, L.L.C., a Virginia limited liability company, party of the third part, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, party of the fourth part, Grantee. WITNESSETH: WHEREAS, the parties of the first part are the owners of that parcel of property located in the Bayside District of the City of Virginia Beach, containing approximately 81,664 square feet which is more particularly described as "Parcel i" in Exhibit "A" attached hereto and incorporated herein by this reference. Said parcel along with the other parcel described in Exhibit "A" is hereinafter referred to collectively as the "Property"; and WHEREAS, the party of the second part is the owner of that parcel of property located PREPARED BY: Q : SYKES, p®URD~N. d~ AIIERN ~ L£VY. P.C. in the Bayside District of the City of Virginia Beach, containing approximately 23,200 square feet which is more particularly described as "Parcel 2" in Exhibit "A" attached hereto and incorporated herein by this reference. Said parcel along with the other parcel described in Exhibit "A" is hereinafter referred to collectively as the "Property"; and GPIN: i46~-88-8153 (Parcel i) i46~-88-6085 (Parcel 2) Prepared By: R. Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 28i Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 WHEREAS, the party of the third part as contract purchaser of the Property 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 PD-H2 Planned Unit Development District with an underlying A-12 Zoning District; and WHEREAS, the Grantee's policy is to provide only for the orderly development 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 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 PD-H2 and A-12 Zoning Districts 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 anal 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, PREPARED BY: Q ~ ~YI:ES. i$®~JRDON. Gj~ A~~tRN ~ LtVY, ~.C. assigns, grantee, and other successors in title or interest, voluntarily and ~~ithout any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid fro 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: i. When the Property is developed, it shall be as a residential condominium, substantially in accordance with the Preliminary Site Plan designated "WHITAKERS PLACE N. Witchduck Road, VIRGINIA BEACH, VA", dated 12/oi/io, prepared by Pinnacle Group 2 PREPARED BY: S~'ICtS, ~®URDON, d~ Ad~PRN ~ LPVY. P.C. Engineering, Inc., which has been exhibited to the Virginia Beach City Council anal 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 (i) entrance from Witchduck Road as depicted on the Concept Plan. As a condition of Site Plan approval by Grantee, Grantor shall grant, convey and record a Declaration to and for the benefit of Grantee, binding upon the Condominium Association and Future Owners of the subject property, permitting the Grantee to close the depicted entrance from Witchduck Road, if a new residential street connection is provided across the adjoining parcel on the south side of the subject Properly with access to Witchduck Road. The new residential street may be public or private. If the new residential street is private, there must be a perpetual ingress/egress easement granted to the Condominium Association and owners of the subject Property who shall not be required to incur any costs associated with the construction of the new residential street or with the closure and removal of the then existing entrance to the subject Property. The then existing entrance shall be replaced with a cul-de-sac or hammer-head (for vehicles to turnaround) without cost to the Condominium Association and owners of the subject Property. The Condominium Association on behalf of the owners of the subject Property shall be authorized and required to execute a Shared Maintenance Agreement with respect to the above referenced new residential street, within the perpetual ingress/egress easement, which provides that the owners of the subject Property shall be responsible for no more than forty percent (40%) of the future repair, maintenance and repaving of the street within the easement. 3. The total number of dwelling units permitted to be constructed on the Property shall not exceed twenty-three (23). Each dwelling unit shall contain a minimum of i35o square feet of living area, and a one (i) car garage. 4. The architectural design of the residential buildings will be substantially as depicted on the six (6) Elevations designated "ELEVATION ONE", "ELEVATION TWO", "ELEVATION THREE", "ELEVATION FOUR", "Thatcher" and "Chatuea", have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning ("Elevations"). The exterior building materials shall be a combination of architectural shingles, raised seam metal roof accents, faux cedar vinyl, beaded vinyl, vinyl and brick skirts. 5. The dimensional requirements applicable to Whitaker Place shall be as follows: 3 • Minimum Distance from Dwelling to Edge of Curb on Interior Streets: Front Garage i8 feet Side of Dwelling 8.3 feet • Minimum Setback from Adjacent Properties Front 3o feet Sides io feet Rear 20 feet • Minimum Distance between Residential Buildings io feet • A "Gazebo" shall be permitted as an accessory structure within the 3o foot front yard setback, as depicted on the Concept Plan 6. When the Property is developed, the Grantor shall record a Declaration PREPARED BY: Q.: SYICES. B®URDON. ~ A~ERN ~ LEVY, E.C. submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. ~. The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are opens spaces which shall be utilized as such. Open spaces shall be rezoned to P-i Preservation District prior to Site Plan approval and shall be maintained and used by the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District") 8. 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 4 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, i95o, 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: (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, 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; (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 maybe 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. PREPARED BY: Q ~ SYK£S, ~OURDON. d~ Al ~£RN & LEVY. P.C. 5 WITNESS the following signature and seal: Grantor: I ~ 1 ~i~~i~~~~~'~ ~' ~~~,~ ` ~ 1 ~~'`~ ~. _ (SEAL) Monica Johns Simons STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 3~St day of December, 2010, by Monica Johnson Simons, Grantor. °~ ,fir .._..~ ~ " Notary Public __~~,_ My Commission Expires: August 3i, 2oi4 Notary Registration No.: 192628 PREPARED BY: Q ~ SY'ICES. ~Oi1RID®N, d~ A~~E~2N ~ LEVY. P.C. 6 WITNESS the following signature and seal: Grantor: ~~~ ~ v Jao~~ 'n Bullock Glaspie STATE OF NEW JERSEY,. CITY/COUNTY OF t ` ~. ,,,,~,e~--~ , to-wit: (SEAL) The foregoing instrument was acknowledged before me this ~- day of ~' ~, ~ ~ ~ , 2oii, by Jacqueline Bullock Glaspie, Grantor. ,~, y ,f ' jf ~ f' f x Notary Public My Commission Expires: ~~ (11 S Notary Registration No.: CHRIS"fC7PNl=R F. MARtIN~ NOiARV PUBLIC S1AiE OF NEWJERSEV MY COh11JISSION ENPIBES JULY 31, ~~#$ PREPARED BY: Q.: SYI:1rS. ~®URDON, d~ A~IERN a~ LPVI'. P.C. 7 WITNESS the following signature and seal: Grantor: Downs Properties, Inc., a Virginia corporation 'F By: ~= - ~ ,1 J 'U ~ ~...- ,.~.~°~~ (SEAL) Donald W. Downs, President PREPARED BY: SYIC£S, ~®UI2D®N, d~ A~I£RN ~ L£VY, P.C. STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 4th day of January, 2oii, by Donald W. Downs, President of Downs Properties, Inc., a Virginia corporation, Grantor. i f /~f / ~\ ~ ~./ Notary'Public My Commission Expires: August 3i, 2oi4 Notary Registration No.: .192628 8 WITNESS the following signature and seal: Grantor: Whitaker Place, L.L.C., a Virginia limited liability company f ~ By: ,` (SEAL) Robert ort n, Managing Member PREPARED BY: S~"ICES. ~®URDDN, d~ ~dI£RN & L~VI'. P.C. STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 31St day of December, 2010, by Robert W. Horton, Managing Member of Whitaker Place, L.L.C., a Virginia limited liability company, Grantor. ~,~ ~~~~~r ~- otary Public ~''~~~~~...~„t~ Y. My Commission Expires: August 3i, 2014 ~~ R. ~ •~ Nota Re istration No.: 1 2628 ~~: D' g 9 c 9 EXHIBIT "A" LEGAL DESCRIPTION PREPARED BY: d~ [$111:RN & L~~Y, P.C. Parcel is All that certain lot, piece or parcel of land, situated in the county of Princess Anne, State of Virginia, bounded and described as follows, to-wit: Beginning at an iron pin in the Western side or Bayside Road N. 554.6 feet from a twin gum which marks the Southeastern corner of the Isaac Stevens Farm, and from such point of beginning, running Westwardly and parallel to the Southern line of said Isaac Stevens Farm, 495 feet, more or less, to an iron pin; thence N. 233/a E. 20.2 feet to a point which marks the Northwest corner of said farm; thence Easterly along the Northern line or said farm 507 feet, more or less, to the Western side of said Bay Side road, and thence Southwardly along a cured line, which marks the Western side of said Bay Side Road 277.3 feet, more or less, to the point of beginning It being the same property which was allotted in partition to Ernest Stevens, Pecolia Morton, Rosa Gilliam (now Smith), Priscilla Givens and Lydia Stevens by Deed April i8th, 192, recorded in Deed Book i45, at Page go and by Deed of Correction, dated on the 1st day of June i92~, and recorded in said Clerk's Office in Deed Book i45, at Page 576, and a two-fifths (2/5ths) interest in said property, that of Ernest Stevens and Pecolia Morton being sold to J. H. Hale, on the 2nd day of January,192g, and recorded in said Clerk's Office in Deed Book i54, at Page 365. Less and Except that property conveyed to Nancy Bonney on the lst day of June, i92~, Deed to which being recorded in the aforesaid Clerk's Office in Deed Book i45, at Page 580; and Less and Except that property conveyed to the City of Virginia Beach, Virginia by Deed dated September ~, 1979, and recorded in the afore referenced Clerk's Office in Deed Book 1952, at Page 29i. GPIN: i46~-88-8153 Parcel 2: ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, lying, situate and being in the City of Virginia Beach, Virginia designated as "No. 4, Helen Simmons, 0.56 acres, more or less", a certain plat entitled "Survey made for Helen Simmons, Mamie Simmons, Nancy Gordon and Sarah Miller", being a portion "Isaac Stevens Farm West Side Bay Side Road near Chinese Corner", dated August 12, 1942, of record in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book i4, at Page 42. GPIN: 146-88-6085 \\Sykesw2k\users\AM\Conditional Rezoning\Whitaker Place\Proffer_Clean 3-28-ii.Rev.doc 10 v ~. J ~i ~ ~ ~^ ~..~ W~ ~I i r~ ~'v~. ,~' 4 ~ ~Q` Li ~ ~ ,r , ~.. ~ ; > f ~.z ca , ~ ~ - ~ _ ~ ~.~ .;~ ~ ;~~ ~.,. r ~ ~\ ~ ~••i ,s ~ , ; ~.,~ why ~,, Mt Z - ~ I ,~ d. J v I Z ~~ ~ ~~ ~ f~ ~ 1~ ,~~~ FBI ? ,, ~. ~ .;.. ,~, ~. • ,~ 00 ~~ ::~~. \ `,` ~ ~' ~~' a ~, ~:~.. ~;~, .Mc a ~ ,~ f f,; ,: ~-J N ~ ~ g~ ~ i1 ~I ~ r J ~ ~~, i ; _ WWM I i ~. ~ it ~ ,, c~ ~ _ ~ ~ o `ti, `~,l N 4 a r Q ro 0 w a /Q V w 0p Q O ~ ail V ._ 0 N 0 w O V e~~ N H ~ j 04 N ~. Q :~ a ~o U ,`O 30' ~' 4 y N ~.~ Fio~ 7, Y CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: BREATHWAITE PLACE, LLC, Change of Zoning District Classification, Conditional A-18 Apartment to PDH-2 (A-18), southeast corner of intersection Newtown Road & Rock Creek Lane (GPIN 1468424560; 1468424432; 1468424315; 1468423287; 1468424132; 1468426125). Density 10 units/acre Comprehensive Plan -Suburban Area. KEMPSVILLE DISTRICT. MEETING DATE: May 24, 2011 ^ Background: The applicant proposes to rezone the existing Conditional A-18 Apartment District properties to Conditional A-18 Apartment to PD-H2 Planned Unit Development and develop the site with 38 single-family dwellings. The site is currently approved for the development of 45 townhomes at 12 units to the acre. The proposed density of the single-family subdivision will be 10 units to the acre. The submitted conceptual site layout and landscape site plan depicts a subdivision of 38 single-family homes, landscaped and open space areas, and interior road. Access is via a single entrance from Newtown Road. The proposed open space areas exceed the 15 percent open space requirement. Along the front of the site, adjacent to Newtown Road, a minimum 35-foot landscaped buffer is proposed as well as an area devoted to the stormwater management facility. The stormwater management facility provides a visual amenity along Newtown Road as well as for the residents of the subdivision. The proposed dwellings are of a coastal cottage design. ^ Considerations: The site does not meet the required five-acre minimum lot area for the Planned Unit Development District (PD-H2). However the City Zoning Ordinance states "any petition for which the parcel involved or structure on the parcel does not meet minimum area or dimensional restrictions shall be processed nevertheless, but shall not be approved by council unless it finds that either special circumstances pertinent to the site or special conditions attached to the petition pursuant to subsection (h) above satisfactorily offset the negative effects inherent in the area or dimensional deficiency". Staff finds that this request satisfactorily offsets any negative impact in the immediate area. The current zoning of the parcel does not permit detached single-family dwellings. By-right, the applicant could build 45 townhome-style units. By using the PD-H2 District, it allows for more flexibility in the site design and building type. The applicant proposes 38 detached single-family dwellings. The applicant has reduced the density on the site from the permitted 12 units to the acre to 10 units to the acre. The proposed Breathwaite Place, LLC Page2of4 homes will be approximately 2,000 square feet in area with a garage and an on- site parking pad for two vehicles. Staff finds the single family condominium use consistent with the land-use characteristics of an area mixed with multifamily, townhome and single-family neighborhoods. The proposed reduction in density is more desirable than what was approved under the prior conditional rezoning, and will strike a better balance with the neighboring single family homes to the east. Staff therefore finds the request acceptable with the submitted proffers and plans. There was no opposition to the request. ^ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval of this request to the City Council with the following proffers: The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h) (1 )). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the Property is developed, it shall be as a residential condominium, substantially in accordance with the "Conceptual Site Layout & Landscape Plan of Breathwaite Place Virginia Beach, Virginia", dated 11/29/10, 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"). PROFFER 2: When the Property is developed, it will be landscaped substantially as depicted and described on the Concept Plan, with vehicular Ingress and Egress limited to one (1) entrance from Newtown Road as depicted on the Concept Plan. PROFFER 3: The total number of dwelling units permitted to be constructed on the Property shall not exceed thirty-eight (38). Each dwelling unit shall contain a minimum of 2080 square feet of living area, and a one (1) car garage or a two (2) car garage. PROFFER 4: The architectural design and exterior building materials of the residential buildings Breathwaite Place, LLC Page3of4 will be substantially as depicted and described on the Building Elevations - BREATHWAITE PLACE, prepared by Progressive Designs and dated 11/29/10, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Elevations"). PROFFER 5: The dimensional requirements applicable to Breathwaite Place shall be as follows: • Minimum Setback from Newtown Road - 39.54 feet • Minimum Setback from Rock Creek Lane - 26.07 feet • Minimum rear yard and side yard setback from adjacent property - 15 feet • Minimum Distance from Dwelling to Edge of Curb on Interior Streets: Front /Garage - 18 feet Side of Dwelling - 8.18 feet Rear of Dwelling - 7.62 • Minimum Distance between Residential Buildings -10 feet PROFFER 6: When the Property is developed, the Grantor shall record a Declaration submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. PROFFER 7: The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are open spaces which shall be utilized as such. Open spaces shall be rezoned P-1 Preservation District prior to Site Plan approval and shall be maintained and used by the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District"). PROFFER 8: The Covenants, Restrictions and Conditions set forth herein replace and supersede the "Proffered Covenants, Restrictions and Conditions dated July 31, 2009 recorded in the Office of the Clerk of Circuit Court of the City of Virginia Beach, Virginia as Instrument #201006020005334400. PROFFER 9: 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. STAFF COMMENTS: The proffers are acceptable as they insure the site will be developed in accordance with the submitted preliminary site and elevation plans. The submitted preliminary site plan depicts a coordinated development of the site in Breathwaite Place, LLC Page 4 of 4 terms of design, landscaping, parking layout, and traffic control and circulation within the site. The submitted preliminary elevation plans depict proposed dwellings that are complementary to existing dwellings in the area The City Attorney's Office has reviewed the proffer agreement dated December 29, 2010, and found it to be legally sufficient and in acceptable legal form. ^ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting DepartmentlAgency: Planning Department City Manager: ~ , C~~- [RYOSVILLE ~iai~r~-~ Breath~~aite Place, LL(` ~•-~ . \ NEWfOY~I I_RY~ ~ A ~~ / / ~` ~ ~~~ ~~ ~, sz ~ , ~ ~~ az A18 ~`~.~~ ~~ w ~~ r..... ~ ,ib - ~ .+C i . . ~ ,~ R7.5 `~ ~~~ ~ ~ ~~. B2 A18+ P~~ ' ~ ~ ~% 61 B1' ~ F?7.5 3~ R7.5 ~ ; ", i! R7.5 "~°^~^~^"~~-°^~""°.. v~a~... iro.. Conditional Zoning Chanye~ lrom 4-18 to Cona~r-mal A-1R (PD H.'1 frw. Fi~mmtw m MA4.I 1M~hIa April 13, 2011 Public Hea APPLICANT BREATHWAITE PLACE, L.L.C PROPERTY OWNEF CURTIS BREATHWAITE, MILDREI E. B. DEANS, INEZ JAMES, SYLVI, A. NANCE, BETTY J. GADSO~ LINDA VERNON, PATRICIA E WILLIAMS, DWAYNE E. MUMFOR[ LILLIAN M. HELM A/K/A LILLIAN h MELVIN, JUDY RAINEY, KARE MUMFORD, AARON L. RAINEY AN BEVERLY B. RAINE STAFF PLANNER: Faith Christ REQUEST: Conditional Change of Zoning (Conditional A-18 Apartment to PD-H2 Planned Unit Development underlying 18 Apartment) ADDRESS I DESCRIPTION: Southeast corner Newtown Rd and Rock Creek La. GPIN: 14684245600000; 14684244320000; 14684243150000; 14684232870000; 14684241320000; part of 14684261250000 ELECTION DISTRICT: SITE SIZE: AICUZ: KEMPSVILLE 3.80 acres Less than 65 d6 DNL SUMMARY OF REQU The applicant proposes to rezone the existing Conditional A-18 Apartment District properties to Conditional A-18 Apartment to PD-H2 Planned Unit Development and develop the site 38 single-family dwellings. The site is currently approved for the development of 45 townhomes at 12 units to the acre. The proposed density of the single-family subdivision will be 10 units to the acre. s The submitted conceptual site layout and landscape site plan depicts a subdivision of 38 single-family homes, landscaped and open space areas, and interior road. Access is via a single entrance from Newtown Road. Landscaped buffer areas are proposed along the sides and rear of the site. The proposed open space areas exceed the 15 percent open space requirement. Benches covered by pergolas are scattered throughout the site in the open space area. Along the front of the site, adjacent to Newtown Road, a minimum 35-foot landscaped buffer is proposed as well as an area devoted to the stormwater management facility. The stormwater management facility provides a visual amenity along Newtown Road as well as for the residents of the subdivision. The proposed dwellings are of a coastal cottage design. LAND USE AND PLAN INFORMATION EXISTING LAND USE: Four single-family dwellings are currently located on the five lots and portion of one lot that make up the site. The site is zoned R-7.5 Residential. SURROUNDING LAND North: Single-family dwellings / R-7.5 Residential USE AND ZONING: • Rock Creek Lane • Across Rock Creek Lane are office uses / B-2 Business South: Chinese Cultural Center / B-1 Business East: . Single-family dwellings / R-7.5 Residential West: Newtown Road • Across Newtown Road is vacant property / B-2 Business NATURAL RESOURCE AND There are no known significant natural resources or cultural features CULTURAL FEATURES: associated with these properties. COMPREHENSIVE PLAN: The Comprehensive Plan designates this site as being within the Suburban Area. The overriding objective of the Suburban Area policies is to protect the predominantly suburban character defined by the stable neighborhoods of our community. The goal of preserving neighborhood quality requires all new development proposals to either maintain or enhance the existing neighborhood through compatibility with surroundings anti effective buffering between adjoining residential and non-residential uses. All new uses are to be compatible in type, size, and intensity to the existing area. This site is adjacent to Suburban Focus Area 2 -Lake Edward. The primary objective is improving publi~~ safety, revitalizing homes, and increasing recreational and educational opportunities while maintaining compatible surround land uses. General Community Appearance Guidelines state the City encouragers creating human-scale environments for both public and private development by integrating quality design. The composition and context of community design elements such as pedestrian spaces, streetscape, and landscaping, as well as other design consideration playa critical role in defining quality community appearance. Breathwate Place, PLC Agenda Item 6 Page 2 CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) /CAPITAL IMPROVEMENT PROGRAM (CIP): Newtown Road from Diamond Springs Road to Sullivan Boulevard is a two-lane undivided collector/local street. The Master Transportation Plan proposes a facility with bikeway within a 100 foot right of way. Currently, this segment of roadway is functioning near capacity at a Loss Of Service (LOS) D. Newtown Road from Baker Road to Diamond Springs Road is a four-lane divided minor suburban arterial. The Master Transportation Plan proposes a divided facility with bikeway within a 150 foot right of way. Currently, this segment of roadway is functioning near capacity at a LOS D. Rock Creek Lane adjacent to this site is a two-lane undivided collector/local street. There are no roadway Capital Improvement Program projects slated for this area. TRAFFIC: Street Name present Volume present Capacity Generated Traffic Newtown Road 7,431 ADT 9,900 ADT Existing Land Use - (2-lane) 264 ADT Proposed Land Use 3- Newtown Road 28,195 ADT' 30,600 ADT' 364 ADT (28 AM Peak (4-lane) Hour Vehicles / 38 PM Peak Hour Vehicles Average Daily Trips s as defined by 45 townhomes a as defined b 38 sin le-famil dwellin s WATER: This site must connect to City water. There are several existing meters, one of which may be used to accommodate the proposed development. There is an eight-inch City water main along Rock Creek Lane, ancN a 12-inch City water main along Newtown Road. SEWER: This site is connected to City sanitary sewer. Pump Station #344, the receiving pump station for the site has capacity issues and may require a system modification. An engineering hydraulic analysis of Pump Station #344 will be required to ensure future flows can be accommodated. There is a 10-inch City sanitary sewer main along Rock Creek Lane and eight-inch City sanitary sewer gravity main along Newtown Road. There is a 48-inch Hampton Roads Sanitary District (HRSD) force main along Newtown Road. FIRE: The minimum width at the entrance to the development must be 14 feet for each lane. The minimum width of the roadways must be 20 feet. Fire lanes will be required along all curbing throughout the project. There will be no on-street parking allowed. Breathwate Place, LLC Agenda Item 6 Page 3 SCHOOLS: School Capacity Generation' Change 2 Enrollment Tri-Campus 1,382 1,461 7 2 Bayside Middle 977 1,070 5 2 Bayside High 1,842 1,708 5 2 "generation" represents the number of students that the development will add to the school z "change' represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be ositive additional students or ne alive fewer students . EVALUATION AND RECOMMENDATION The site does not meet the required five-acre minimum lot area for the Planned Unit Development District (PD-H2). However the City Zoning Ordinance states "any petition for which the parcel involved or structure on the parcel does not meet minimum area or dimensional restrictions shall be processed nevertheless, but shall not be approved by council unless it finds that either special circumstances pertinent to the site or special conditions attached to the petition pursuant to subsection (h) above satisfactorily offset the negative effects inherent in the area or dimensional deficiency". Staff finds that this request satisfactorily offsets any negative impact in the immediate area. The current zoning of the parcel does not permit detached single-family dwellings. By-right, the applicant could build 45 townhome-style units. By using the PD-H2 District, it allows for more flexibility in the site design and building type. The applicant proposes 38 detached single-family dwellings. The applicant has reduced the density on the site from the permitted 12 units to the acre to 10 units to the acre. The proposed homes will be approximately 2,000 square feet in area with a garage and an on-site parking pad for two vehicles. Open space is scattered throughout the site Staff finds the single family condominium use consistent with the land-use characteristics of an area mixed with multifamily, townhome and single-family neighborhoods. The proposed reduction in density is more desirable than what was approved under the prior conditional rezoning, and will strike a better balance with the neighboring single family homes to the east. Staff therefore finds the request acceptable with the submitted proffers and plans. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h) (1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. Breathwaite Place, LLC Agenda Item 6 Page 4 PROFFER 1: When the Property is developed, it shall be as a residential condominium, substantially in accordance with the "Conceptual Site Layout & Landscape Plan of Breathwaite Place Virginia Beach, Virginia", dated 11/29/10, 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"). PROFFER 2: When the Property is developed, it will be landscaped substantially as depicted and described on the Concept Plan, with vehicular Ingress and Egress limited to one (1) entrance from Newtown Road as depicted on the Concept Plan. PROFFER 3: The total number of dwelling units permitted to be constructed on the Property shall not exceed thirty-eight (38). Each dwelling unit shall contain a minimum of 2080 square feet of living area, and a one (1) car garage or a two (2) car garage. PROFFER 4: The architectural design and exterior building materials of the residential buildings will be substantially as depicted and described on the Building Elevations - BREATHWAITE PLACE, prepared by Progressive Designs and dated 11/29/10, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Elevations"). PROFFER 5: The dimensional requirements applicable to Breathwaite Place shall be as follows: • Minimum Setback from Newtown Road - 39.54 feet • Minimum Setback from Rock Creek Lane - 26.07 feet • Minimum rear yard and side yard setback from adjacent property -15 feet • Minimum Distance from Dwelling to Edge of Curb on Interior Streets: Front /Garage - 18 feet Side of Dwelling - 8.18 feet Rear of Dwelling - 7.62 •,+ - DOTGGS ~1~@~---~@@t • Minimum Distance between Residential Buildings - 10 feet PROFFER 6: When the Property is developed, the Grantor shall record a Declaration submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. PROFFER 7: The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are open spaces which shall be utilized as such. Open spaces shall be rezoned P-1 Preservation District prior to Site Plan approval and shall be maintained and used by Breathwaite Place,. LLC Agenda Item 6 Page 5 the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District"). PROFFER 8: The Covenants, Restrictions and Conditions set forth herein replace and supersede the "Proffered Covenants, Restrictions and Conditions dated July 31, 2009 recorded in the Office of the Clerk of Circuit Court of the City of Virginia Beach, Virginia as Instrument #201006020005334400. PROFFER 9: 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. STAFF COMMENTS: The proffers are acceptable as they insure the site will be developed in accordance with the submitted preliminary site and elevation plans. The submitted preliminary site plan depicts a coordinated development of the site in terms of design, landscaping, parking layout, and traffic control and circulation within the site. The submitted preliminary elevation plans depict proposed dwellings that are complementary to existing dwellings in the area The City Attorney's Office has reviewed the proffer agreement dated December 29, 2010, and found it to be legally sufficient and in acceptable legal form. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this change of zoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department ofPlanning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this change of zoning are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. Breathw~ite Place, LLC Agenda Item 6 Page 6 `. +~ ~ ~ ~ ., ~~ ~~~ ~'~ ~~ ~ fin. ~G~~~ ! y r `; _`~_~ ~ r ,,; `.~ ` _ 4'~_ Y ' ~~ t :~A Q 1~ ~ I. < __c1~ u ~ a 4, Ili PROPOSED SITE PLAN ~~ Breathwaite Pla ce, L LC ? j Agenda Ite m 6 ~; Pag e 8 ~ ~. ~ 3 ~_~ I I/2q/IO E~EVAT GNS PRO'/'CEJ 6": PROGRE55iVE DES G-N5 ~REATHWI~ I TE PL?~GE ~~~~ 1P.' B P,,'~ T ,~,~ii,-.'J ~U17 ~T~ L c..` ,i I ~i it ~3REATHWAITE ~'i-~4GE i del 4 j {~3 0 .! ~ !i I I/2~/10 E~EVAT 015 pROV DED B~' pRGGRf55iVE ;.ES G'~5 Ms`~,r~~s-~..~ I I/2q/10 ELEVAT,OVS °QO'J DrD BY: PR(~~~~c~cc,VF DPS~~NS BREATHWAITE PLAGE PROPOSED E B /ATION f ~ :e Place, LLC ~ ;+ genda Item 6 ~ ~~ Page 11 '' '' ~h ~L T u P i l/2q/ O ~__vA! G.5 F~ov o=:, ~~ Bi~E~'rTHWA I TE PLAGE °ROGR=55 ~/E DE5 G~5 v .i ~ .-FPM i ~ ~i s ''.1` ~, Y J `~`', ~^. ,` ~~. . ~' S4 s. 6 A ~ A A W ~3tl iy 4 Y4 ~: r 5 ~~ i;~ Y ~ • . z f _' S i -cy~~ S „3 ., A ) ~I 4; Yi ~~ :' x*ia L . ,. ~~;,, ,mot;~~ A ~ ~~ ~ ~R~ t~~. • ~: i *', ' ~~it ~ r ~ y ~` ~~~i i ~.; ,~ r ?S E~i~i ~~ `~ *}Y n ~~ 3~ li:~i ~~ w `", _ ,, al~f, ' , , ,~ ` , i_ ' , ~~. * _ r-_ ~ ~r o a E, ~. (pyp~y'~j~ '•y. ~~.~ [~f~ ~ . ~ .1 ` F. ~ ~ , c ~ ~ ^ ~~ --- S :1 W ' IICP ~ ~ Y G ~ Y it. ~ ~ ~ 1 ~ Z , i~ ~ i~ ~ LI ~ ~' ~ ~ s ~ ~ , ,- ~-- ~ ~ ' 1 - ~ 1 ~. ~ .. . .. , ~- !I~ [~~- { ~ , ~ ~ ~ ~' } ~ c ~ ~~~I , I ' ~ ~ ~ ~ per J I ~ ~ ICS 1 ^^^ CO i ~ 1~ '~ p! APPROVED PLAN '~ ~I Breathwaite Pla ce, LLC Agenda Item 6 ~~ P age 13 ;;' KEMPSVILLE nt:,h r-~ B1'E'~lt~l\1 ~titE'. Pl~ll't', L.I,~~ !~3 1 ~Qt t~ JC@1G' -- NEW~O ~. , g~, t •~ ~~ ~~ ~. - ~' ~ ,~. Afi~8 ~ ~ ~ !~~ t~ p4, , ,~, ~~ ~y /~ ~1v ~-,. ~~ ; ~i {5 ~ ~'~. ~~ ,~ _ a ~, / R7.5 ~ ~ ~~ '~ C~ '~ ~ ~ ` R7.5 ~, •ZoningwhlrCortdmonsProHers.Open Conditional Zoning Change from A-18 to Conditions! A-18 (PDH2) SPace Pronwiiorr or Pi/H•1 Overlays # DATE REQUEST ACTION 1 5/27/10 Zoning Change (R-7.5 Residential to Conditional A-18 A artment and Street Closure Granted 2 11/09/99 Zoning Change (R-7.5 to Conditional B-1) Granted 3, 6/27/06 Conditional Use Permit (church) Granted ~a :~ ~.~~-~` ~~F . ~{ ,,~ ~~ J ~"~ DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Breathwaite Place, L.L.C.: Francis H. Cohan, Managing Member; Robert W. Horton, Member 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ^ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated 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) Curtis Breathwaite, Mildred Elaine Breathwaite Deans, Inez James, Sylvia A. Nance, Betty Jean Gadson, Linda Vernon, Patricia M. Williams, Dwayne E. Mumford, Lillian M. Helm a/k/a Lillian M. Melvin, Judy M. Rainey, Karen D. Mumford and Aaron L. Rainey and Beverly B. Rainey, husband and wife. 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) X Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 8 See next page for footnotes Condfional Rezoning Application Page 11 of 12 Revised 9!1/2004 0 I~t ~~ G~ O N ~~ z O ~~ M~~ A O V DISCLOSURE STATEMENT Breathwaite Place, LLC .Agenda Item 6 Page 15 DISCLOSURE STATEMENT Fri V ~~ ~~ O N z O ~~ ~~ O V 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) Sykes, Bourdon, Ahern & Levy, P.C. MSA, P.C. 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 § 2.2-3101. 2 "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 entities. Factors that should be considered 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 entities; 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 Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject pro erty at least 30 days prior to the scheduled public hearing according to + tions in this package. Breathwa' .L.C. By- Francis H. Cohan, Managing Member Ap~liic8n , gn ure Print Name Aaron L. Rainey Beverly B. Rain y Property is Signature different than applicant) Print Name CondRional Rezoning Application Page 12 of 12 Revised 9/1/2004 Breathwaite Place, LLC Agenda Item 6 Page 16 ~-~ n ram„ ~. ~~ ~ .~ ~G~-~ ~- _ Property Owner's Signature (if different than ap icant} ~z Q z z A z 0 v Applicant's nature Property Owner' i natur (if d' ere hanapplicant) A licant's Signature Property r' Signature (i iffere t than applicant) Applicant's Signature Property Owner's Signature (if different than applicant) Applicant's Signature ~ ' , ~ ~' rty Own. Signature (If dl rent than dppllcant) Applicant's applicant) B a alte Plac .C. By: ~- ~ ~ Applicants Signature Applicant's Signature Prope Own 's Signature (if different th ' applicant) i Curtis Breath'waite Print Name not Name ~ ~ ~ ~ ~ p' Name Print Name y Inez James Print Name Print Name Betty Jean Gadson Print Name P int Name Patricia M. Williams Print Name ,~,.~, w~ia,; , ;v,anayn;y ;wan;uai Print Name Dwayne E. Mumford Print Name r;anU;a n. i,uuan, ;wanayniy ;weu;uei Print Name Lillian M. Helm a/k/a Lilliam M. Melvin Print Name Francis H. Gohan, Managing Member Print Name Karen Mumford Print Name Judy M. Rainey Print Name Conditional Rezoning Application Page 12 of 12 Revved 911/2004 DISCLOSURE STATEMENT 9ignetun •-~ ` s ~ t ~ ' i~i~t r Pmt ~ Breathwaite Place, LLC Agenda Item 6 Page 17 Item #6 Breathwaite Place, L.L..C. Conditional Change of Zoning Southeast corner of Newtown Road and Rock Creek Lane District 2 Kempsville April 13, 2011 CONSENT An application of Breathwaite Place, L.L.C. for a Conditional Change of Zoning (Conditional A-18 Apartment to PD-H2 Planned Unit Development underlying A-18 Apartment) on property located on the southeast corner of Newtown Road and Rock Creek Lane, District 2, Kempsville. GPIN: 1468-42-2456- 000; 1468-42-4432-0000; 1468-42-4315-0000; 1468-42-3287-0000; 1468-42-4132-0000; part of 1468- 42-612 5-0000. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h) (1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the Property is developed, it shall be as a residential condominium, substantially in accordance with the "Conceptual Site Layout & Landscape Plan of Breathwaite Place Virginia Beach, Virginia", dated 11/29/10, 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"). PROFFER 2: When the Property is developed, it will be landscaped substantially as depicted and described on the Concept Plan, with vehicular Ingress and Egress limited to one (1) entrance from Newtown Road as depicted on the Concept Plan. PROFFER 3: The total number of dwelling units permitted to be constructed on the Property shall not exceed thirty-eight (38). Each dwelling unit shall contain a minimum of 2080 square feet of living area, and a one (1) car garage or a two (2) car garage. PROFFER 4: The architectural design and exterior building materials of the residential buildings will be substantially as depicted and described on the Building Elevations - BREATHWAITE PLACE, prepared by Progressive Designs and dated 11/29/10, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Elevations"). PROFFER 5: The dimensional requirements applicable to Breathwaite Place shall be as follows: Item #6 Breathwaite Place,L..L.C. Page 2 •Minimum Setback from Newtown Road - 39.54 feet •Minimum Setback from Rock Creek Lane - 26.07 feet •Minimum rear yard and side yard setback from adjacent property -15 feet • Minimum Distance from Dwelling to Edge of Curb on Interior Streets: Front /Garage -18 feet Side of Dwelling - 8.18 feet Rear of Dwelling - 7.62 Minimum Distance between Residential Buildings -10 feet PROFFER 6: When the Property is developed, the Grantor shall record a Declaration submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. PROFFER 7: The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are open spaces which shall be utilized as such. Open spaces shall be rezoned P-1 Preservation District prior to Site Plan approval and shall be maintained and used by the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District"). PROFFER 8: The Covenants, Restrictions and Conditions set forth herein replace and supersede the "Proffered Covenants, Restrictions and Conditions dated July 31, 2009 recorded in the Office of the Clerk of Circuit Court of the City of Virginia Beach, Virginia as Instrument #201006020005334400. PROFFER 9: 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. STAFF COMMENTS: The proffers are acceptable as they insure the site will be developed in accordance with the submitted preliminary site and elevation plans. The submitted preliminary site plan depicts a coordinated development of the site in terms of design, landscaping, parking layout, and traffic control and circulation within the site. The submitted preliminary elevation plans depict proposed dwellings that are complementary to existing dwellings in the area The City Attorney's Office has reviewed the proffer agreement dated December 29, 2010, and found it to be legally sufficient and in acceptable legal form. Item #6 Breathwaite Place,L..L.C. Page 3 NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this change of zoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this change of zoning are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. AYE 9 NAY 0 ABS 1 ABSENT 1 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE HORSLEY ABSENT LIVAS AYE REDMOND AYE RIPLEY ABS RUSSO AYE STRANGE AYE THORNTON AYE By vote of 9-0, with the abstention so noted, the Board approved item 6 for consent. Eddie Bourdon appeared before the Board on behalf of the applicant. There was no opposition. ~ ~ } ` ~ ; ~ z U '~ ~ ~ '~ o / 9,P '~• ~S_ OF OUR , F, 0 S NPZ~ON O BFA CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7877 TO Mark D. Stiles DATE: May 11, 2011 DEPT: City Attorney FROM RE B. Kay Wils DEPT: City Attorney Conditional Zoning Application; Breathwaite Place, L.L.C. The above-referenced conditional zoning application is scheduled to be heard by the City Council on May 24, 2011. 1 have reviewed the subject proffer agreement, dated December 29, 2010 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 BREATHWAITE PLACE, L.L.C., a Virginia limited liability company CURTIS BREATHWAITE MILDRED ELAINE BREATHWAITE DEANS INEZ JAMES, SYLVIA B. NANCE, BETTY JEAN GADSON and LINDA VERNON PATRICIA E. WILLIAMS, DWAYNE E. MUMFORD, LILLIAN M. HELM a/k/a LILLIAN M. MELVIN, JUDY M. RAINEY and KAREN D. MUMFORD AARON L. RAINEY and BEVERLY B. RAINEY, husband and wife TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 29th day of December, 2010, by and between BREATHWAITE PLACE, L.L.C., a Virginia limited liability company, Grantor, party of the first part; CURTIS BREATHWAITE, Grantor, party of the second part; MILDRED ELAINE BREATHWAITE DEANS, Grantor, party of the third part; INEZ JAMES, SYLVIA B. NANCE, BETTY JEAN GADSON and LINDA VERNON, Grantors, parties of the fourth part; PATRICIA E. WILLIAMS, DWAYNE E. MUMFORD, LILLIAN M. HELM a/k/a LILLIAN M. MELVIN, JUDY M. RAINEY and KAREN D. MUMFORD, Grantors, parties of the fifth part; AARON L. RAINEY and BEVERLY B. RAINEY, husband and wife, parties of the sixth part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the seventh part. GPIN:1468-42-4560 1468-42-4432 1468-42-4315 1468-42-328 1468-42-4132 1468-42-6125 Prepared By: R. Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 28i Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 PREPARED BY: Q : SYKI:S, ~®URD~9N, 6~ t~1~1:RN ~ L1:VY. P.C. 1 WITNESSETH: PREPARED BY: d~ AI~tRN ~ LLVY. P.C. WHEREAS, the party of the second part is the owner of a certain parcel of property located in the Kempsville District of the City of Virginia Beach, Virginia, containing approximately 16,680 square feet designated as Parcel One in Exhibit "A" attached hereto and incorporated herein by this reference. Parcel One, along with the other pieces and parcels described herein and in Exhibit "A" are hereinafter collectively referred to as the "Property"; and WHEREAS, the party of the third part is the owner of a certain parcel of property located in the Kempsville District of the City of Virginia Beach, Virginia, containing approximately 0.522 acres designated as Parcel Two in Exhibit "A" attached hereto and incorporated herein by this reference. Parcel Two, along with the other pieces and parcels described herein and in Exhibit "A" are hereinafter collectively referred to as the "Property"; and WHEREAS, the parties of the fourth part are the owners of a certain parcel of property located in the Kempsville District of the City of Virginia Beach, Virginia, containing approximately 0.482 acres designated as Parcel Three in Exhibit "A" attached hereto and incorporated herein by this reference. Parcel Three, along with the other pieces and parcels described herein and in Exhibit "A" are hereinafter collectively referred to as the "Property"; and WHEREAS, the parties of the fifth part are the owners of a certain parcel of property located in the Kempsville District of the City of Virginia Beach, Virginia, containing approximately 0.642 acres designated as Parcel Four in Exhibit "A" attached hereto and incorporated herein by this reference. Parcel Four, along with the other pieces and parcels described herein and in Exhibit "A" are hereinafter collectively referred to as the "Property"; and WHEREAS, the parties of the fourth part and the parties of the fifth part, together are the owners of a certain parcel of property located in the Kempsville District of the City of Virginia Beach, Virginia, containing approximately i.6i5 acres designated as Parcel Five in Exhibit "A" attached hereto and incorporated herein by this reference. Parcel Five, along with the other pieces and parcels described herein and in Exhibit "A" are hereinafter collectively referred to as the "Property"; and WHEREAS, the parties of the sixth part are the owners of a certain parcel of property located in the Kempsville District of the City of Virginia Beach, Virginia, containing 2 approximately o.46 acres designated as Parcel Six in Exhibit "A" attached hereto and incorporated herein by this reference. Parcel Six, along with the other pieces and parcels described herein in Exhibit "A" are hereinafter collectively referred to as the "Property"; and WHEREAS, the party of the first part is the contract purchaser of the assembled property containing approximately 3.8 acres and 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 Conditional A-18 Apartment District to Conditional PDH-2 District with an underlying A-18 District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the party of the first part 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 WHEREAS, the party of the first part 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 PDH-2 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 party of the first part, for itself, its successors, personal PREPARED BY: Q~ SYKtS, $$®URt-(-N, ~~ ~t~FRN ~ LtVI'. I>.C. 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 fro c~uo 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: 3 i. When the Property is developed, it shall be as a residential condominium, substantially in accordance with the "Conceptual Site Layout & Landscape Plan Of Breathwaite Place Virginia Beach, Virginia, dated ii/29/io, 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, it will be landscaped substantially as depicted and described on the Concept Plan, with vehicular Ingress and Egress limited to one (i) entrance from Newtown Road as depicted on the Concept Plan. PREPARED BY: Q~ SYIC£S, ~®URD(~N, d~ AII£RN & LEVY. €'.C. 3. The total number of dwelling units permitted to be constructed on the Property shall not exceed thirty-eight (38). Each dwelling unit shall contain a minimum of 2080 square feet of enclosed area, with a one (i) car garage or a two (2) car garage. 4. The architectural design and exterior building materials of the residential buildings will be substantially as depicted and described on the building elevations designated BREATHWAITE PLACE, prepared by Progressive Designs and dated it/2g/io; "BREATHWAITE REAR ELEVATIONS UNITS #2g through #38" on Concept Plan; and "BREATHWAITE SIDE ELEVATION UNITS #l, #29 AND #38" on Concept Plan, which have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning (the "Elevations"). 5. The dimensional requirements applicable to Breathwaite Place shall be as follows: • Minimum setback from Newtown Road • Minimum setback from Rock Creek Lane • Minimum rear yard and side yard setback from adjacent property • Minimum distance from dwelling to edge of curb on interior streets: Front/Garage Side of Dwelling Rear of Dwelling • Minimum distance between residential buildings submitting the Property to the Condominium Act of the Commonwealth of Virginia. The Condominium Unit Owners' Association shall be responsible for maintaining all open spaces, 39.54 feet 26.0 feet i5 feet 18 feet 8.18 feet x.62 feet 1o feet 6. When the Property is developed, the Grantor shall record a Declaration 4 common areas, landscaping and other improvements on the Property as depicted on the Concept Plan. Membership, by all residential unit owners, in the Condominium Association shall be mandatory. ~. The areas depicted on the Concept Plan which will not be occupied by residential dwellings, patios (fenced or unfenced), drive aisles, and parking areas are opens spaces which shall be utilized as such. Open spaces shall be rezoned to P-i Preservation District prior to Site Plan approval and shall be maintained and used by the Condominium Association consistent with the intent and regulations set forth in Article 3 of the Zoning Ordinance ("Preservation District"). 8. The Covenants, Restrictions and Conditions set forth herein replace and supersede the "Proffered Covenants, Restrictions and Conditions dated July 3i, 2009 recorded in the Office of the Clerk of the Circuit Court of the City of Virginia Beach, Virginia as Instrument #2oioo6o2000533440• 9. Further conditions may be required by the Grantee during detailed Site Plan PREPARED BY: SPICES, li®URDON. d~ AIIERN ~ LEVI', P.C. 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: 5 (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, 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; (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 maybe 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. PREPARED BY: Q ~ SYICtS. B®URD~N. d~ ~~IERN ~ LEVY. P.C. 6 WITNESS the following signature and seal: Grantor: Breathwaite Place, L.L.C., a Virginia limited liability company 1~ .~,,. ~ B `-~ .'~ .~'~: (SEAL) y , . .t.. Francis H. ohan, Managing Member STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this ~® ~~ day of ~d'C~/r~L~I ; 200, by Francis H. Cohan, Managing Member of Breathwaite Place, L.L.C., a Virginia limited liability company, Grantor. Notary Public {~{{000090EyPOpd My Commission Expires: ~ `3 ~, ~ ~`~ ~ «°°°R`( 2 Notary Registration No.: ~~ ~aZ y `~ y,, ° °}a~T~ °•epd ~~a°~ P~B~.ICe ~° ;. REG # 361227 ~~, a S NIY COI~NIISSION ,B °° ® E?;PIKES ~° O~°°® Q5f31113~~ 4 J O®~~~ '•s d~Qd Q ~ ®~~ PREPARED BY: Q.: S~'~CtS. ~®Uft~~~1N. 6~ f4~1tRN ~ L£V1', ~.C. WITNESS the following signature and seal: Grantor: n Curtis Breathwaite STATE OF VIRGINIA C~d~~.~©Ll~ CITY OF , to-wrt: f~, ~r~ foregoing instrument was acknowledged before me this ~~~~ day of ~' , 2010, by Curtis Breathwaite, Grantor. .~lirl l~ Notary Fublic lUiy Commission Exgires:_~~,. ~l. ~®J ~' Notary Registration No.: v~ I LI ~ .•• ,~~~J`P THO~S••,o. .~. , ~,G• #~M ~tipN i Z ,• ~ ~t~3 •' S~: ,. ~. 8 WITNESS the following signature and seal: Grantor: Mildred Elaine Breathwaite Dean ~`~/~. STATE OF VIRGINIA ~ Sryu CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this a ~ day of 2010, by Mildred Elaine Breathwaite Deans, Grantor. ~~ N aay Bublic My Commission Expires: "F~tvi ~ ~ , ~~ Notary Registration No.: ~ a o1. C~1~ ~ Zi~fl~ My C~on+mMplw- btP~ir~rt.MoY'i, ZO11 9 WITNESS the following signature and seal: (SEAL) STATE OF VIRGINIA CITY OF VIRGINIA BEACII, to-wit: ~~ The foregoing instrument was acknowledged before me this ~~ ~ day of ~~:~~.~:~' , 2010, by Inez James, Grantor. i~ ~ , Notary Fublic 1VIy Commission Expires: ol~-w~.,~% ~ ~ ° ~~2 Notary Registration No.: J 4 ~ k~` ~' .~~"~1 N-~Cq"''~.. '~' : REG. #194788 •' n ' MY COMMiSSiON ' Q ~ • EXPIRES s,~jo'• 91301201. J~Q~~~ ~,. ~ `` '"'~'~n~ ~FALTH O..a~°'` 10 WITNESS the following signature and seal: .~~eo~ ~n~~,y~~~*~ . ! Grantor: , -> ~ ,z ~~ `~ ~ ~u ~:;~ ~..,~~ l \ 1. (SEAL) -~ ~..~ ~' ~ ' Sylvia B. Nance ,~ „rk~ . ~; °',_. SY~,~lY• F ~t ~~00"~.. ~~~ ~~`'~ ~ cces~ ,~*a'° STATE OF a~ e CITYf CO~"N'~`I~:fJF ` c ~ to-wit: ~~ ...... _ The foregoing instrument was acknowledged before rrYe this ~_ day of -~~, 2010, by Sylvia B. Nance, Grantor. ` ,`~.~ ,~~; `` otary Fublic / NIy Commission Expires: ~ `t ~% l Notary Registration N®.: /l.}' 11 WITNESS the following signature and seal: Grantor: 239 .'Jean Gadson - '~rq STATE OF ~ r ~ ~ ~ `'{ CITY/COUNTY OF ~~ ~ to-wit: -~-~ The foregoing instrument was ac , wled d before me this ~ day of U 'r" , 20~#, by Betty Jean Gad~On, r ntgr. n ~ ~, Notary Public NIy Commission E~ires: ~ ` i ~°' Notary Registration No.: 12 WITNESS the following signature and seal: Grantor: 2 .` G~-C~~. ~a ~~ i~ ~sEAL, Linda ~7ernon STATE OF ~ICl -. CITY/COUNTY OF ~ ~~ f , to-wit: The foregoing instrument . as acknowledged before me this ~~`,'-r day of ~~e~1~~a 2010, by Linda Ver on, Grantor. _. ...~-~ 1 ~..~ Notary I~ublic N1y Commission Expires: ~ ~ :6Z Notary Registration No.: ~~ ~ 7~ 1 ~ =~= ,~~PpV PV6•i DIERDRE E DAMS ~°r `'~: NO1CryPl~bllc_StdledF - • • E My Comm E~Ires.k~n 13, 2012 =r e:~ Commission # DD 748114 13 WITNESS the following signature and seal: Grantor: i' ~~ (SEAL) Patricia M. Wil ams STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: -~ T e foregoing instrument was acknowledged before me this ~ day of r r,.-~ . zQ~10, ty Yait'iCla iVl. vvliliattis, iirall~Ui°. ,. ,~ ~, ~` ~:/ Notary Public My Commission Expires:, - / Notary Registration IVo.:~ ? 5'~..3~'`~ ,,,RaP~,~ LULA MAE STOKES NOTARY PUBLIC ~~ ~~ COMMONWEALTH OF VIRGINIA *~" REG # 7253547 MY QaMMISSION EXPIRE6 46.31-3013 14 WITNESS the following signature and seal: Grantor: _~ ,, ~~ ,, .:~- ~,~ ~ ~ - ~wayne ..Mumford ~ r ° ~~ ~. STATE OF VIRGINIA CITY ®F VIRGINIA BEACH, to-wit: T~`..' ferego.ng :nstr'ui:i%i.0., vY~1j iti?t~11.7`v~'ledgc;il I'7Ci0e ITle 1111S flay Ot -. ~ ~ ,- y Wayne E. Mumf rd, Grantor. 2-D li R Notary ~Ll 11C IS i~i~ITNESS the following signature and seal: Grantor: M. (Kelm a/k/a Lillian M. Melvin STATE OF VIRGINIA CITY OF VIRGINIA BEACIi, to-wit: ., ~he foregoing instrument was acknowledged before me this day of ,~6i~i-, by Lillian M. Kelm a k/a I.ilhan M. Melvin, Grantor. r Notary Public 16 WITNESS the following signature and seal: ~~ -,,, eu~ '~, Grantor: '' - (SEAL) " Jud .Rainey i- STATE OF ~ 1~'G~ ` ~~ CITY/COUNTY O - .~ ~~~ ~'~ i;_ ~'~- , to-wit: r ~ ^ The fore oing instrument was acknowledged before me the /c~ay of ~ ~~ - ~ ~'- 1 ' 2010, by Judy M. Rainey, Grantor. /' ~-~. r---~-. ,~~ , IVfy Commission Expires:. ~ ~ - '`~ Notary Registration No.: 17 WITNESS the following signature and seal: Gra r: G~~'``~ ~~~ , ate(/, (SEAT.) Karen D.1Vlumford STATE OF VIRGINIA CITY OF VIRGINIA BEACIi, to-wit: The foregoing instrument was acknowledged before me this ~ day of :,; by Karen D. Mumford, Grantor. ~ ~~ tt Notary Fubl~c 1VVTy Commission Expires: Notary Registration No.: ~ .. ' ~~ ~f,.>, , >~;` ;~ ~ .~~ . r„- ~_ ~,.' C~? " ~.~ y4~i tb~}4h ; t~ ~ F.,~rmnt i~~~z..4Y~",;. ,~~ Ig WITNESS the following signatures and seals: Grantors: (SEAL) Aaron L. aine ~~t~ ,~ ~ e, ~;f ~',, ~ ~~ ~'`~ ~'t~/`~ (SEAL) 'T r ~' Beverly Bd. Rainey STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this ~ d day of P~(tl'~QY111~J~fl,,~ , 2oio, by Aaron L. Rainey and Beverly B. Rainey, husband and wife, Grantors. B ,~~ Notary Public My Commission Expires: ~-- ~1- 3 Notary Registration No.: i ~ ~~ Yk~ltlbR 0.~I~~p 9~275'c {d01Gl~'yF Q~i~i~l~ Cornrresnvuesslt9a ~:,~~-s,~~a°~ e• 3132® ~ ~ ~~ O..Cd61PfS6r?+14~72 KKyAd k?'.`: b4•°'~ ~'~ ~ a~•~j e~ ~q~gl,~M,N ~YI~R~XT. PREPARED BY: Q i ~~~~5. YS®U~~'~~~, ~~ A~~~~N $~ ~.£VY, ~>.C. 19 EXHIBIT "A" LEGAL DESCRIPTION PREPARED BY: Q : SYKES. ~®O~D~N. 6~ AtIERN ~ L£VY. P.C. Parcel One: All that certain lot, piece or parcel of land, together with the buildings and improvements thereon, and the appurtenances thereunto belonging, lying, situate and being in the Bayside Borough of the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot B, as shown on that certain plat entitled, "Subdivision of The Remainder of Property As Shown on that certain plat entitled `Property of Curtis Breathwaite Located Near Davis Corner" and recorded in Deed Book 444 at Page 4~3, Bayside Borough, Virginia Beach, Virginia for Curtis W. Breathwaite"', 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 231, at Page 2; to which reference is hereby made for a more particular description. GPIN: 1468-42-4560 Parcel Two: All that certain lot, piece or parcel of land, together with the buildings and improvements thereon, and the appurtenances thereunto belonging, lying, situate and being in the Bayside Borough of the City of Virginia Beach, Virginia, and being known, numbered and designated as "Bruce Breathwaite" 0.522 Acres, as shown on that certain plat entitled, "Resubdivision of Property of Anthony R. Braithwaite Estate WB 58 p 115 `Newsome Farm' Bayside Borough Virginia Beach, Virginia", 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 i73, at Page 32; to which reference is hereby made for a more particular description. GPIN: 1468-42-4432 Parcel Three: All that certain lot, piece or parcel of land, lying, situate and being in the Bayside District of the City of Virginia Beach, Virginia, being bounded and described as follows: Beginning at a 5 inch pipe in the northern side of Bayside Road to Davis Corner and running thence along the property of A. Breathwaite, North 63° 35" East 2ii.4 feet to a pin; thence South 18° 56" East ~i.8 feet to a pin; thence South 6~° West 195.1 feet to a 5 inch pin in the northern side of said road; thence 59.7 feet to the point of beginning, containing .32 acres more or less; and All that certain parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, and being more particularly described as "Parcel `Y' o.l~o Ac Parcel to be Conveyed to Peele" on that certain plat entitled "Resubdivision of ;Property of Anthony R. Breathwaite Estate, 20 `Newsome's Farm', Bayside Borough, Virginia Beach, Virginia, Scale 1"=50', dated September 3, 1983", which plat was made by Gallup Surveyors & Engineers, Ltd., and which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book i73, at Page 32. GPIN: 1468-42-4315 Parcel Four: All that certain lot, piece or parcel of land, located in the Bayside District of the City of Virginia Beach, Virginia, and being described as follows: Beginning at a point on the East side of Bayside Road at a pin in the dividing line between the property now or formerly belonging to Ruth Bailey and the property hereby conveyed; thence North 6~° oo' East 5 feet to a pin; thence North 6~° oo' East 195.1 feet to a pin; thence South 18° 56" East l02 feet to a pin; thence South 6g° 23' West 1~~.2 feet to a pin; thence in the same course 5 feet to a pin on the East side of Bayside Road; thence North 2g° 40' West along the East side of Bayside Road 94.9 feet to the point of beginning; a plat of which property is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed 360, at Page 4'71. GPIN: 1468-42-328 Parcel Five: ALL THAT certain parcel of land situate, lying and being in the City of Virginia Beach, Virginia, and being more particularly designated as "Remains of Anthony R. Breathwaite Estate" on that certain plat entitled "Resubdivision of Property of Anthony R. Breathwaite Estate, `Newsome's Farm', Bayside Borough, Virginia Beach, Virginia, Scale 1"=50', dated September 3, 1983", which said plat was made by Gallup Surveyors & Engineers, Ltd., and which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 173, at Page 32, reference to said platbeing hereby made for a more particular description and location of the aforementioned property. GPIN: 1468-42-4132 Parcel Six: PREPARED BY: ALL THAT certain parcel of land situate, lying and being in the City of Virginia Beach, Q : SI'utS, ~OURIDQ)N. Virginia, being a portion of Lot D as depicted on the Plat of Newsome Farm as recorded in the Gjjifl AIIERN ~ Lam, [~.C. Office of the Clerk of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 62, at Page 1, which parcel is more particularly described as follows: 21 Beginning at a pin found located at the southeast corner of "PARCEL 2" (GPIN 1468-42- 328~) as depicted by plat recorded in Map Book i73, at Page 32 which pin is also located at the southwest corner of Lot D (GPIN 1468-42-6125) as depicted on the Plat of Newsome Farm (M.B. 62, Pg i) and from said Point of Beginning running along the boundary line between the two aforementioned properties North 40° 20' 59" East, a distance of 127.4 feet to a point; thence turning and departing from said boundary line South 58° 22' 14" East, a distance of i65.o~ feet to a point on the western boundary of the Subdivision of Bayside Place as recorded in the afore referenced Clerk's Office as Instrument #2oo3i2i8o2iii18; thence along said boundary line South 42° 45' 25" West, a distance of 128.41 feet to a point; thence turning and departing said boundary line and running along the shared boundary line with "The Remaining Part of Lot io (GPIN 1468-42-4132) as depicted by Plat recorded in Map Book i73, at Page 32, North 58° 22' 14" West, a distance of 159.62 feet to the pin at the Point of Beginning and containing 20,455 square feet or o.4'7 acres. GPIN: 1468-42-6125 \\Sykesw2k\users\AM\Conditional Rezoning\Breathwaite Place\2oio\Proffer_Clean 3-28-ii.Rev.doc PREPARED BY: Q ~ SYKtS, ~®tJ12DON, 6~ ~111ERN ~ L1:Vl', P.C. 22 S ~NU~i ~~ ~ ~~ t" .,,,,. ff~ ic:, ~' .~ 'i: °~~' ~`~~;.. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance extending the date for satisfying conditions in the matter of the application of Breathwaite Place, L.L.C., for the closure of a portion of Newtown Road adjacent to 732-746 Newtown Road and 5573 Rock Creek Lane. DISTRICT 2 - KEMPSVILLE MEETING DATE: May 24, 2011 ^ Background: On May 25, 2010, City Council approved Breathwaite Place, L.L.C's. application (the "Applicant"), to close a portion of Newtown Road adjacent to 732 through 746 Newtown Road and 5573 Rock Creek Lane. The Applicant proposes to incorporate the closed portion of the right-of-way into a proposed single family condominium project on adjacent properties (subject of a Conditional Change of Zoning application). ^ Considerations: There were five conditions to the approval of the street closure: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of said policy are available in the Planning Department. 2. The Applicant shall re-subdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcel. The resubdivision plat must be submitted and approved for recordation prior to final street closure approval. 3. The Applicant shall provide easements for any City utilities located within the right-of- way closure area subject to the approval of the Department of Public Utilities and/or Department of Public Works and the City Attorney's Office, which easements shall include a right of reasonable ingress and egress. 4. The Applicant shall provide easements for any private utilities located within the right-of-way proposed for closure, subject to the approval of the appropriate private utility companies. Breathwaite Place, L.L.C. -Street Closure Extension Page 2 of 2 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 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 of the City Council vote to close the right-of-way this approval shall be considered null and void. On April 29, 2011, the Applicant requested an extension of time to satisfy conditions 2, 3 and 4. Staff concludes that the request for additional time is reasonable. ^ Recommendations: Allow an extension of 9 months for satisfaction of the conditions. ^ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map and Summary Ordinance Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: ~, "~"`` M1~' Breathwaite Piace, LI.'::' ` r, 3 n ~~ ~~'A72 ~ . .- A18 ~ ~ ~ A18" A1~ - i ~ 62 - , ~ i %,~ '`A12i ~ ~ ~ k ~ ~;~,;). A18 i / ~ B2 ~ { ~ ' s ~ ' i ~~ ` ~ ` ~u !~' `` t' _ _ %! ~i RCS, f~~~.5 ~~ Y ~ B 2 j B i ~ ~ . 1 Ftq ~, ~ ^ ~ ~~ , " /,i ,~ i ~. ' , , ~ ~ ~ . .. :::::.. . .. . .. c..I... Street C7osii~e 3 April 14, 2010 Public Hearing APPLICANT: BREATHWAITE PLACE, L.L.C. STAFF PLANNER: Faith Christie REQUEST: Discontinuance, closure and abandonment of a portion of Newtown Road, adjacent to 732 through 746 Newtown Road and 5573 Rock Creek Lane ADDRESS / DESCRIPTION: A portion of Newtown Road, running south from Rock Creek Lane, adjacent to 732 through 746 Newtown Road GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: Not yet assigned KEMPSVILLE 15,490 square feet Less than 65 d6 DNL SUMMARY OF REQUEST The applicant requests the discontinuance, closure, and abandonment of a portion of Newtown Road, adjacent to 732 through 746 Newtown Road and 5573 Rock Creek Lane. The applicant proposes to incorporate the closed portion of the right-of-way into a proposed multi-family project on adjacent properties (subject of a Conditional Change of Zoning application). LAND USE AND ZONING INFORMATION EXISTING LAND USE: A portion of Newtown Road remaining from a past roadway improvement project SURROUNDING LAND North: . Rock Creek Lane BREATHWAITE PLACE, L.L.C. -STREET CLOSURE Agenda Item 3 Page 1 ~' '' ~~~-~ USE AND ZONING: South: . Chinese Community Association / B-1 Business East: Single-family dwellings / R-7.5 Residential West: . Newtown Road NATURAL RESOURCE AND There are no natural resources or cultural features associated with the CULTURAL FEATURES: roadway. IMPACT ON CITY SERVICES WATER: There is an eight-inch City water main along Rock Creek Lane, and a 12-inch City water main along Newtown Road. Adequate easements subject to the approval of the Public Utilities department will be required. The developer is also advised that no encroachments, i.e. structures, will be permitted within the easements. SEWER: There is a 10-inch City sanitary sewer main along Rock Creek Lane and eight-inch City sanitary sewer gravity main along Newtown Road. Adequate easements subject to the approval of the Public Utilities department will be required. The developer is also advised that no encroachments, i.e. structures, will be permitted within the easements. PRIVATE UTILITES: There is a 48-inch Hampton Roads Sanitary District (HRSD) force main along Newtown Road. Adequate easements subject to the approval of HRSD will be required. The developer is also advised that no encroachments, i.e. structures, will be permitted within the easements. EVALUATION AND RECOMMENDATION The Viewers reviewed the request to discontinue, close and abandon a portion of Newtown Road, adjacent to 732 through 746 Newtown Road and 5573 Rock Creek Lane and found that it would not present any inconvenience to the public. This is a portion of Newtown Road remaining from a past roadway improvement project that serves only the five addresses listed on the request. The closed portion of the roadway will be incorporated into a multi-family development proposed on the properties adjacent to the roadway. The applicant has worked diligently with staff to accumulate adjacent properties and request the street closure to insure an integrated project. Staff therefore recommends approval of this request subject to the conditions below. BREATHWAITE PLACE, L.L.C. -STREET CLOSURE Agenda Item 3 Page 2 CONDITIONS 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of the policy are available in the Planning Department. 2. The applicant shall re-subdivide 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 provide easements for any City utilities within the right of way closure area subject to the approval of the Public Utilities department. 4. The applicant shall provide easements for any private utilities within the right-of-way proposed for closure area subject to the approval of the private utilities companies. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 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 of the City Council vote to close the right-of-way this approval shall be considered null and void. NOTE: Further conditions maybe 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. BREATHWAITE PLACE, L.L.C. -STREET CLOSURE Agenda Item 3 Page 3 z ~ ,~ "~ ,~ ~~;+~ ",, ~:.. ~'~~~~ ,~ ~~ ~ ~; ,. ~:; '.~ ~_ a~ "; ~a ~, ~` ~,; AERIAL OF SITE LOCATION BREATHWAITE PLACE, L.L.C. -STREET CLOSURE 3 4 1. rHls ExHIBIr ooES D I NOT CONSTIIUTEA 64?0 BOUNDARY OF LAND. 6363±19.26 2. THIS EKHIBIT WAS , ' RO CREATED WITHOUT THE 1`8 BENEFIT OF A TITLE 5.98 RT ~I > ~ (FOR (MB REPORT. ~ ~ 3. THE PURPOSE OF THIS ~ °_XHIBIT IS TO CLOSE A l O ~' ~ I ; ' 58 PORTION OF SHURNEY LANE Lb ~ ~ ~ 1 ~ ' .31'''' / /NEWTOWN ROAD AND 63 i0 ACCOMPAN`! THE DEED. + - ~ ~ ~~~ ~ ,:~ g 1 7~ C -. ~ ~ ^a k'i ~I O f T~~ r S1 ~ ~ ` -~ A2fi I ~ ~ 1 + ~~ v ~ . .. a ^ ~ . v . N ~~ h ~ ti 1 .,~ 1 °29 J, ~ ~ 9 9 ~ 1V~~ ~~t^ ~,9 ~ ` J ' m~ I ~ ~ its ~ .~ .• r~ ~ ~. . ~ 'S'ti'I' q ti~ "sptip ~t~`~2 ~ p~ ~ _ ~ ~Y.. ,~, , ~, I 614 00 ~ ,ti ~ ,! CURVE CABLE CURVE RADIUS LENGTH TANGENT C1 640.00 164.76 82.84 CHORD BEARING I DELTA 164.31 N 33'24'57° E 1a'a5'DO" C I t al ~~ NU E~jrQ K~N~ R=87~.aa' Y CLASSI' GO ,UAN ROADJ ~j3T PG a!8)!MB 131, PG ZJf++ (r') Yi .--' ,n, -i e' csll~. \1~ /3i1V 43 t ' ~, ~t~ 3 zz.sT ~FJCURTIS BREATHWAITE ~''~ v ~ t v s, (DB 444, PG 471) o_ a f) (MB 231, PG 2) ~' °' O f) GPIN 1468-42-45603' w f) 158.90' 0.05' RT PIN(75_Ot N 58'08'44" W 333.90' DEAN do MILDRED ELAINE BREATHWAITE (WB 74, PG 985) PARCEL X (MB 173, PG 32) GPIN 1468-42-443< N 57.08'01" W 3'.6.20' ~ JAMES INCZ & SYIVIA A. NANCE, ET AL PI~P,N(f)PARCE~200(M8150317~G1 ~ s--~ ~ CPIN 1468-42-4315 ~- 4.35' N 53'46'33" W 298 0/A 0.54' RT `~ DWAYNE E. MUMFORO, ET AL o (WB 86, PG 1669) PARCEL Z PIrJ(FQIN(f) GPINB1468-42-3287 I 60t00 Z ( `7~-7) DENOTES PORTION OF '~~ '!//~~/ ~/ ~~I SHURNEY LANE/ ~ I NEWTOWN ROAD y + ~ TO BE CLOSED 1 AREA 5,490 SF a, OR 0.355 AC BASEL /NE TAKEN FROM V. L7.0.7 PLANS F(W NEWTOWN ROAD PHASE --- - 1- B, SHEE~~ t7-20, DA lt-O 6 07-1985 ~ ~ j' ~ 1 -~~ 59t00 l' J 1! ~~~~;rli of L ~~ '~~ ~EITREY Z - `-~ e- - _ ~ ~ i Si:~:v - . // - ,!~// 58~ / EXFIIBIT A PLAT SHOWING PORTION OF SHURNEY LANE/NEWTOWN RpAD TO BE CLOSED ' ~;vV~ '~ ~ _ 14~q~• ~" _S ' ` - ' o, ~ 57 ~ 28 4}° ,$ ~ ~n ~, JAMES INEZ dt SYLVIA , ~+ /~'v ~ i ~ n A. NANCE, ET AL ~ ~ N (DB 2326 PG 1017) ,y ,. „~ , '~ < REMAINING PART Of TRACT 2 p ; s 10, (MB t 73, PG 32) 6g GPIN 1468-42- .132 I 27.7_ g , 59+ 31.53 L'NINESE CpNMUN/TY CUL 77/RAL 47.14' R 7 CL UB, /NC. (DB 7128, PC 308 PARCEL Ax d PARCEL X (MB 9~ PC ?9J (M6 45, PC 55J ~ FMB 195, PC 7Bf CP/N 1~6B-I?-2091 SHEE1 1 OF 1 MSA. P.C_:.. ENVIRONMENTAL SCIENCES •CECSpENCES ~, ;~~ Pl Ar;NING • SURVEYING •ENq~[RING •LANOSCAPE ARC!+ITECTUZE SU33 HOUSE URIYE. NRG!NIA BEACR, YA 2341 757-490-9264 (OFC) 757-490-11634 (FAl •w~.msoonlme.com PROD. NC.:09037 DRAWN: KCR DATE: 1-25-2010 SCALE: 1" 60' SURVEY OF AREA TO BE CLOSED BREATHWAITE PLACE, L.L.C. - ET CLOSURE Agenda Item 3 Page 5 ~.. ., ,R , ~llL fr ~~ ~~•~r~ att. W U ~~ ~~ ~~~ ~ 3~> ~~ y r ~ ~.d oe u B (~ ~ m L •~ d ~ c U m Z 5 e d rl/ ~y,' ~n 1r ~ ~ Q4 }~ „ M1 ~^ gR a4, ~~ i `? ~~ ~ j' u- :tn 'rtf '. '~w.~rL,+ YYYYY~ :+ N `` '1 0 0 n W F 0 ~SM ~ ~~n~ ~~d.a$ ~'`gg:!' ~2'~~ y r-y N 1'.Tiy i ~:d fffl 7 ~ ~; ~' ~r ~ ~~ ~.~ ~ ~ ~ :~ I ~~ ~_ L :: PROPOSED DEVELOPMENT ADJACENT TO AREA OF CLOSURE BREATHWAITE PLACE, L.L.C. -STREET CLOSURE Agenda Item 3 Page 6 ~~ _..- f ~,ja~'- r s C° ~~. y ~ Q E 3 ,,~ t y ~`y~,~~ ~~~ /-__ iYr - 1~~/~'1~11, ~. __ ~ 1 ?;= ,L, i Rrpathwaitp # DATE DESCRIPTION ACTION 1 11/09/99 Zonin Chan e R-7.5 to Conditional B-1 Granted 2 06/27/06 Conditional Use Permit Church Granted 3 01/25/05 Zonin Chan a R-10 to Conditional A-12 Granted 4 04/08/08 Zonin Chan a R-10 to Conditional A-12 Granted 5 06/14/05 Zonin Chan e R-10 & A-12 to Conditional A-12 Granted ZONIN T,"'. :~N1 BREATHWAITE PLACE, L.L.C. -STREET CLO: tY ~r /'11~. Gl IUd IICI l l J Page 7 ~~•~ ,•~- 'Zoning with Recorded Conditionsr3ol%rs Street Closure z 0 V a a. a O a V N w DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership. firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Breathwaite Place, L.L.C.: Francis H. Cohan, Managing Member; Robert W. Horton, Member 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) O Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. i PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated 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) i .Curtis Breathwaite, Mildred Elaine Breathwaite Deans, Inez James, Sylvia A. Nance, Betty Jean Gadson, Linda Vernon, Patricia E. Williams, Dwayne E. Mumford, Lillian M. Helm a/k/a Lillian M. Melvin, Judy M. Rainey and Karen Mumford 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ^ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & See next page for footnotes d Street Closure Ap Pagc DISCLOSURE ST, BREATHWAITE PLACE, L.L.C. -STREET CLOSURE Agenda Item 3 Page 8 r~ ~,A 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) Bourdon, Ahern & Levy, P.C. P.C. ' "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 § 2.2-3101. z "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 entities. Factors that should be considered 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 entities; 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 Conflict of Interests Act. Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public heagng according to the instructions in this package. .'L.C. 2. ii+u.~'i'YC~. ~.~y~ ~ Print Named --n.-T i~ Property Owner's Signature (if different than applicant) Print Name Street Closure Application Paget 3 of 13 Revised 911/2004 z 0 U ~.-~ a 0 a U H w H DISCLOSURE STATEMENT ~~ BREATHWAITE PLACE, L.L.C. - .ET CLOSURE Agenda Item 3 ; Page 9 ;.. `-~.,4:, I Z ~ ~. J w i ,. 'I U It y III U ~ j~ 0 II ~ ,. I U c~ J Y w ~ ~ O ~ V Q N ~ 0 V ~ ~ C m C L •L U m Z g ~~f Flo t~~= E O $n 0 ,Q J Y ~~ z O Q Q ppy ~ C~ i C NF ~ ~~ ~ & U'~<~~' ,=~i~ ~_~ .~ .m ~ R a$~ma>~ `~ w ,i s a >_ N ~ • m G ~ /~J C D~P^ C ~~ ~ ~ ° ~ V , ~ ~ ~ u o m 0. g ~ - ~`{1 c i c ~^ `rli~ .c05 m Y~< VI tat p~~e° ~ ~zJ ~ 9i Q~. KP~c ` . ~ ~^ 3 u~ °~3 i I _ ~ o F LL LL ~ ~ ~'~ ~ ~ ~ m m ap~~E J ~ N ~ E~S O U ~ ~~~5 ° " " ° W ~ ~g ~~ ~~vZ ~~~' ~ ~~~ ~ o w ~ w OQQ ~~ Q Z N N N O Jal Jal ~ £ ~ ~ N O d d xww : .~ ~ w a~~ f 0 0 ~e~ Q ~Q'mN~fV1(1 ~~9~ m a.~o~vmv.o vvavvaa o+ „ ~o ,p,opp ,c,oqq ~a~ppi ~o ,A,pp ~ ~ Q ~7QV7V~ ~1 N u~ ~ ~ a J1 ^ ~ _Z r ,``_ ~ ~ ~' .n ~ N H 0 FW- Z QO --- - ~ ~ _. - ~ s_, W~» ~ oJo >~d~ Q ~~~ ~ ~ >a z O Q w J W UI wQ K O 0 N Items 3 R; 4 Breathwaite Place, L.L.C. Discontinuance, closure and abandonment of a portion of Shurney Lane Change of Zoning District Classification 732-746 Newtown Road and 5573 Rack Creek Lane District 2 Kcmpsville April l4, 2010 CONSENT Jay Bernal: The matter is agenda items 3 and 4. This is an application of Breathwaite Place, L.L.C. for the discontinuance, closure and abandonment. of a portion of Shurney Lane (Newtown Road) adjacent to 732-746 Newtown Road, and 5573 Rock Creek Lane, and an application of Breathwaite Place, L,L.C for a Change of Toning District Classification from R-7.5 Residential District to Conditional A-l8 Apartment District on property located at 732-746 Newtown Road, and 5573 Rock Creek Lane, District 2, Kempsville. Eddie Bourdon: Thank you Mr. Bernas. Chairman Strange, for the record, my name is Eddie Bourdon, a Virginia Beach attorney representing the applicants, who are here, as well as the members of the families that own all this property. We greatly appreciate these items being placed on the consent agenda. I want to thank City staff, specifically Faith Christie and the folks in the Traffic department for all of their work. We have been working on this about nine months. All the conditions that are listed on item 3 are acceptable, and item 4 is proffered. Thank you. Say Bernas: Thank you. is there any opposition to these matters being placed on the consent agenda? Hearing none, the Chairman has asked Commissioner Redmond to please review this item. David Redmond: Thank you Mr. Bernal. The applicant, Breathwaite Place, L.L.C., requests a Conditional Change of Zoning of the existing properties, zoned R-7.5 Residential, to Conditional A-18 Apartment for the purpose of developing 45 townhorne-style dwellings. The proposed density of the property is 12 units to the acre, which is consistent with other multi-family developments in the area. This corridor has portions that have not always enjoyed the greatest fortune. In recent years, there has been a fair amount of investment in this corridor. This is a well designed project. It has a significant open space feature. Staff is unaware of any opposition to the project. Staff supports the project, and the Commission concurs by consent. Thank you, Jay Bernal: Thank you Commissioner Redmond. I will make a motion to approve agenda items 3&4. Joseph Strange: A motion made by Mr. Bernas. Do I have a second? Kathy Katsias: Second. Items 3 & 4 Breathwaite Place, L.L.C. Page 2 Joseph Strange: A second by Ms. Katsias. VVe are now ready to vote. Ronald Ripley: Mr. Chairman, I probably should abstain from items 3 & 4. I do own property across the street from this project as well. Joseph Strange: Okay. AYE 10 NAY 0 ABS 1 ABSENT 0 ANDERSC)N AYE BERNAS AYE FELTC?N AYE HENLEY AYE HGRSLEY AYE KATSIAS AYE LIVAS AXE REDMOND AYE RIPLEY ABS RUSSO A~'E STRANGE AYE Ed Weeden: By a vote of i 4-0, with the abstention so noted, the Board has approved items 3 & 4 for consent. 1 AN ORDINANCE EXTENDING THE DATE FOR 2 SATISFYING CONDITIONS IN THE MATTER OF 3 THE APPLICATION OF BREATHWAITE PLACE, 4 L.L.C., FOR THE CLOSURE OF A PORTION OF 5 NEWTOWN ROAD ADJACENT TO 732-746 6 NEWTOWN ROAD AND 5573 ROCK CREEK LANE 7 8 9 WHEREAS, on May 25, 2010, the Council of the City of Virginia Beach 10 acted upon the application of Breathwaite Place, L.L.C. (the "Applicant"), for the closure 11 of a portion of Newtown Road adjacent to 732-746 Newtown Road and Rock Creek 12 Lane, as shown on Exhibit "A"; and 13 14 WHEREAS, on May 25, 2010, the Council adopted an Ordinance to close 15 the aforesaid road, subject to certain conditions being met on or before May 24, 2011; 16 and 17 18 WHEREAS, on April 29, 2011, the Applicant requested an extension of 19 time to satisfy the conditions attached to the aforesaid street closure. 20 21 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of 22 Virginia Beach, Virginia: 23 24 That the date for meeting conditions of closure as stated in the Ordinance 25 adopted on May 25, 2010, upon application of Breathwaite Place, L.L.C., is extended to 26 February 23, 2012. 27 28 Adopted by the Council of the City of Virginia Beach, Virginia, on the 29 day of , 2011. 30 GPIN'S: 1468-42-4560-0000, 1468-42-4432-0000, 1468-42-4315-0000, 1468-42-3287- 0000 and 1468-42-4132-0000 CA11716 R-1 May 10, 2011 APPROVED AS TO LEGAL SUFFICIENCY: r ~ Lucia G. Whi ow, Associate City Attorney i APPROVED AS TO CONTENT: FXS-TTRTT "A" NOTES: 1. THIS EXHIBIT DOES 0 ~ t NOT CONSTITUTE A 64k0 BOUNDARY OF LAND. 63+19.26 2. THIS EXHIBIT WAS 65.9--6' RT I CREATED WITHOUT THE 1 ~~ BENEFIT OF A TITLE 1 REPORT. 3. THE PURPOSE OF THIS ~~ EXHIBIT IS TO CL05E A o S o1' PORTION OF NEWTOWN 63 OQ. Z n 1 ROAD AND TO ~ ~ ~ ACCOMPANY THE DEED. V © 1 ~ , ~~~1 w~a2 ~' ~ ~c s'F 9 c» ~ L~ ~ ~ s ~~ ~~62 00 O ~ i ~Gy~`, p ~9 ~w °ti ~0 y I tv ~~ t j` ~ c ,.~ p ~ O ~~ y, n . a v~„ ~ti 2 o ~ 9~ OPO ~. ~ I ~~u'9~F 61 00 CURVE TABLE CURVE RADIUS LENGTH TANGENT C1 640.00 164.76 82.84 CHORD BEARING DELTA 164.31 N 33'24'57" E 14'45'00" DENOTES PORTION OF NEWTOWN ROAD TO BE CLOSED AREA = 15 490 SF y Z O (R0~ L ASS aODMAN ROAD (MB 2416, PG 418)(MB~391P2 ~ )I I 1 C I C ~ I h a1 I J 601 00 y C1 0 ~ ~ ~ ~~ t! ~ o _ Ytl OR 0.356 AC 'v> I J` `° ~ J rn BASELINE TAKEN FROM ~ V.D. D. T. PLANS FOR NEWTOWN ROAD PHASE - JJ 1-B, SHEETS 1T-20, 5900 ~' DATED 5-07--1985 .~~~'TH OFD I s f,~~ i Lic. No. 2306 Z.-- 2'~ - ti ;~ ENO sURN~~ „~~'; 5 47. R=$71.44' PIN(F) ' `'- 132.93" PIN{Y1 N 73'00'43'=E ~ ~/~~FJCURTIS2BREATHWAITE N v Q cV (F) (DB 444, PG 471) o ~ ~ ~O `~"IIJ LOT B r- M ti (MB 231, PG 2) ~ j (~) GPCN 1468-42-452 93' I~ F) ~l~ 158.90' 0.05' RT P (75.00' N 58'08'44" W - 333.90' o, DEAN & MILDRED ELAINE BREATHWAITE ' ~ {WB 74, PG 965) ~' PARCEL X ~~ (MB 173, PG 32) GPIN 1468-42-4432 - - N 57'08'01" W 316.20' rno JAMES INEZ &SYLVIA A. NANCE, j ET AL Pit~P~N(F) PARCE~200(Mg 50017PG1 0 j n _ ~P1N 1468-42-4315 ~- 4.35 N 53'46'33"-Vy 2g8 74= OVA 0.54' RT ~ `o ~' DWAYNE E. MUMFORD, ET AL o ~ (WB 86, PG 1669} °_ PARCEL Z (F F) B PI~ PI~( 1468-42-3287 GPIN 28. 92' 1. _ 14_ 7.40• _. -"_-- w S 51'28'41" <r E ; in ;n JAMES INEZ &SYLVIA ' " r~ A. NANCE, ET AL • ~ 1° (DB 2326, PG 1017) `n ~* REMAINING PART OF TRACT '~ z 10, (MB 173, PG 32) -6 GPIN 1468-42-4132 240.11 ' 2s7.7s~ N/F +31.53 CHINESE COMMUNITY CUL TURAL 14' R T CLUB, /NC. (DB 2228, PG 3D8~ PARCEL Ax c.Pc PARCEL X (MB 94, PG 29) (MB 45, PG S5J (MB 195, PG 78~ 9 GPIN 1468-42-2093 REV 2 KCR 3-18-2010 ESQUIRE 3-18-2010 REV 1 KCR 2-22-2010 CITY COMMENTS 2-19-2010 SHEET 1 OF 2 EXHIBIT A PLAT SHOWING PORTION Oi- NEWTOWN ROAD TO BE CLOSED VIRGINIA BEACH MSA, P.C. ENVIRONMENTAL SCIENCES •GEOSCIENCES PLANNING • SURVEYING •ENGINEERING •LANDSCAPE ARCHITECTURE 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23462 757-490-9264 (OFC) 757-494-0634 (FAX) www.msaoniine.com PROJ. N0.:09037 DRAWN: KCR VIRGINfA ~ DATE: 2-23-2010 SCALE: 1" = 60' EXHIBIT "A" f NOTES 1. THIS EXHIBIT DOES NOT CONSTITUTE A ~ " BOUNDARY OF LAND. o z 2. THIS EXHIBIT WAS D- CREATED WITHOUT THE -~ , BENEFIT OF A TITLE REPORT. 3. THE PURPOSE OF THIS EXHIBIT IS TO CLOSE A PORTION OF NEWTOWN ROA AND TO ACCOMPANY THE DEED. m o.,.~ ~ ~ ~ ~~~~ ~ c~ ~~ ~~ ^~~~ 4 m° \a a J' A N~?C ~iP G'i ~ O ~..i .~,~9 ~~ sj, c> ~~G ~ 4 ~,A ''y ,o c9v, ~ !9 ~,~2 2~ 9~~ y~o .~ o~, o~ y ~o~~y~~ PLAN VIEW SHOWING TOPOGRAPHIC FEATURES ALONG PORTION OF NEWTOWN ROAD IO BE CLOSED STMh' DENOTES PORTION OF NEWTOWN ROAD TO BE CLOSED AREA = 15,490 SF OR 0.356 AC OF l,~ r ~ ~, Lic. No. 2306 Z\. - 2-3' ~ C `ti.~D SUR~~~ FiBFR oPr~cs IYITNESS F'OS~ ., ~ R" -- - 10" PVC _ /// !t, -___,_ TEL BOX CABLE BOX (~ {yCr LL ' CONC dt!QLK -~ --- _ _ _ 1--p~ vE..- G'PA ~t L _-- --~"' PP REV 2 KCR 3-18-2010 ESQUIRE 3-18-2010 REV 1 KCR 2-22-2010 CITY COMMENTS 2-19-2010 SHEET 2 OF 2 MSA. P_C. EXHIBIT A ENVIRONMENTAL SCIENCES •GEOSCIENCES PLANNING • SURVEYING •ENGINEERING PLAT SHOWING •IANDSCAPE ARCHITECTURE PORTION OF 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23462 NEWTOWN ROAD 757-490-9264 {OFC) 757-490-0634 (FAX) TO BE CLOSED www.msaonline.com `~ ~~ r~L Z'IPEG o'SCO { i ~ /-~ ~ ~' ~~ ~~~`' 1 D^ FRAA4E o SNEG D 1-STY BRK `~ & FR GARAGE ~ ~ SCO 1-STY 8R/CK ---~-- ,¢742 ~i a~~~ SCO~_~ >-STY BR/C .:::.-` ~ ~~A .:. ~ SS~H C/~ T'/ PEG_ ~- IEL PEO PROJ. N0.:09037 DRAWN: KCR VIRGINIA BEACH VIRGINIA DATE: 2-23-2010 SCALE: 1" = 60' L. APPOINTMENTS HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION MINORITY BUSINESS COUNCIL TOWING ADVISORY BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT ~~****~~ If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 Agenda 05/24/2011 gw www.vbaov.com NATIONAL NIGHT OUT OCTOBER 4, 2011 CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 05/10/2011 B PAGE: 1 E D S L E D H E W AGENDA L D S I E J S U I ITEM # SUBJECT MOTION VOTE I A T E D N O S H L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D I CITY MANAGER'S BRIEFING A. NOISE ORDINANCE REVISIONS Christopher Boynton, Deputy City Attorney IUIIUIV/ CERTIFICATION OF CLOSED CERTIFIED 11-0 Y Y Y Y Y Y Y Y Y Y Y VNI-E SESSION F MINUTES -April 26, 2011 APPROVED 11-0 Y Y Y Y Y Y Y Y Y Y Y G/H/I-1 PUBLIC HEARINGS: LEASES OF CITY-OWNED PROPERTY No Speakers - Farmer's Mazket a. Gilly's Creamery b. S & H Produce c. Skipper Farms d. Holland Produce 2 SOUTH LAKE HOLLY WATERSHED No Speakers IMPROVEMENTS -Section III Acquisition by Agreement or Condemnation 3 NOISE ORDINANCE AMENDMENTS 2 Speakers J-1 Ordinances/Resolutions re: FY 2011-12 ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y RESOURCE MANAGEMENT PLAN a. FY 2011-12 Operating Budget/CIP: 1) APPROPRIATE FY 2011- 2012, $1,742,646,267 for Operations/$176,543,050 for Internal Service/$453,625,416 in Interfuod Transfers 2) ESTABLISH tax levy of 89¢ per ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y $100 assessed value on real estate for FY 2012 3) ESTABLISH levy of $3.70 per $100 ADOPTED AS 10-1 Y Y N Y Y Y Y Y Y Y Y of assessed value on personal REVISED property/machinery and tools for Calendaz Year 2012 4) AUTHORIZE Annual Funding ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y Plan to HUD CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 05/10/2011 g PAGE: 2 E D S L E D H E W AGENDA L D S I E J S U I ITEM # SUBJECT MOTION VOTE I A T E D N O S H L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D 5) DECLARE $8,000,000 within ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y Sandbrid a TIF as sur lus ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y 6) AMEND ERU fee Rate: 2011 @ $0.316 2012 @ $0.366 2013 $0.416 7) ESTABLISH TIP/consolidate ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y Major Projects/I'ourism Growth and Investment Funds for FY 2011-12 8) AMEND Section 4-1.1 re permit ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y rocessin fees 9) ESTABLISH Solid Waste ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y Management fee at $10 per month, SUBSTITUTE effective January 12, 2012 ORDINANCE 10) ADOPT Neighborhood Dredging ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y Program ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y I1) APPOINT committee to implement the Business License Incentive Program ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y 12) AMEND Section 2-208.1, to ESTABLISH reasonable charges for Reissuance of Paperwork and Checks ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y 13) AMEND, Section 2- 214.1, to ESTABLISH chazge for Reissuance of Surplus Vehicle Title 14) ADOPT Policy for Management ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y of General Obligation Debt 15) AUTHORIZE FY-2012/FY-2017 ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y CIP/APPROPRIATE $302,165,900 for FY 2012 Capital Bud et 16) AUTHORIZE issuance of GO ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y Public Improvement Bonds of 65,500,000 ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y 17) AUTHORIZE issuance of Storm Water Utility System Revenue Bonds of $16,300,000 CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 05/10/2011 B PAGE: 3 E D S L E D H E W AGENDA L D S I E J S U I ITEM # SUBJECT MOTION VOTE I A T E D N O S H L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D ADOPTED 10-1 Y Y N Y Y Y Y Y Y Y Y 18) AUTHORIZE issuance of Water/ Sewer System Revenue of $27,000,000 2 Ordinances to AMEND the City Code: ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y CONSENT a. Section 16-43 /Chapter 8 of Comp Plan re "Housing /Neighborhood Plan" b. ADD Sections 16-41.1/16-41.2 re Chapter 16 for commerciaUrecreational vehicles 3 Resolution of City Council re ISSUANCE ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y of $6,500,000 Multifamily Housing CONSENT Revenue Bonds by Development Authority 4 Ordinance to AUTHORIZE Amendment ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Nos. 2/3 Encroachment Partnering CONSENT Agreement with USN in vicinity NAS Oceana 5 Ordinance to AUTHORIZE a 3 yeaz Lease ADOPTED 11-0 Y Y Y Y Y Y Y Y Y Y Y with Gilly's Creamery, LLC, at Fazmers BY CONSENT Mazket 6 Ordinance to AUTHORIZE acquisition of ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y easements for South Lake Holly Watershed CONSENT by agreement or condemnation/AUTHORIZE areasonable offer to owners or ersons of interest 7 Ordinances to AUTHORIZE ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y encroachments into portions of City-owned CONSENT property: a. roof overhangs/roof pazapet/hazd awnings/light fixtures/ Fire connection for Viking Motel Corporation at 27`", 27 %,18'~ Streets/Atlantic Ave at 2700 Atlantic Avenue b. 2 piers/construct /maintain a boat lift for Glen A./M. Nicole Williams at Lake Rudee,726 Kenned Avenue 8 Ordinances to APPROPRIATE: ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y CONSENT a. $15,000 from US Homeland Security to the Fire Emergency Mauagemeut Exercise b. $112,000 from Inmate Services of Sheriffs Office/ADD 2.4 FTE's to create a Special Investigative Unit CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 05/10/201 I B PAGE: 4 E D S L E D H E W AGENDA L D S I E J S U I ITEM # SUBJECT MOTION VOTE I A T E D N O S H L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D 9 Ordinances to TRANSFER: ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y CONSENT a. $6,381,613 from School Board's FY 2010-11 Operating Fund: $5,194,613 from Instruction to Technology $ 871,860 from Administration/ Attendance/I-Iealth to Technology $ 280,500 from Transportation to Operations/Maintenance $ 35,010 from Instruction to Operations/Maintenance b. $64,429 from School Board's FY 2010-11 Operating Fund to Technology: $18,025 from Instruction $44,000 from Administration/ Attendance/Health $ 2,404 from Operations and Maintenance c. $2,835,518 from School Board's FY 2010-11 Operating Fund to Technology re special education: $2,560,518 from Instruction $ 100,000 from Administration/ Attendance/Health $ 175,000 from Trans ortation K-1 WILDLIFE RESPONSE, INC. CUP re APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y wildlife rehabilitation center at 3592 CONDITIONED Indian River Road. DISTRICT 7 - PRINCESSANNE 2 GREAT NECK BAPTIST CHURCH APPROVED 11-0 Y Y Y Y Y Y Y Y Y Y Y CUP re a preschool with a "Before/After- BY CONSENT School" program" at 1020 General Jackson Drive. DISTRICT 5 - LYNNHAVEN 3 DARSHAK PATEL (KAVERI, APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y LLC)/MABEL BROCK fora CONDITIONED Modification of a CUP re gas BY CONSENT station/convenience store (approved January 21, 1985)/ADD Greyhound passenger transportation terminal on-site at 971 Virginia Beach Boulevard. DISTRICT 6 - BEACH 4 GREYHOUND LINES, INC. CUP re DEFERRED TO 11-0 Y Y Y Y Y Y Y Y Y Y Y passenger transportation terminal at 971 AUGUST 9, Virginia Beach Boulevard. DISTRICT 6 - 2011, BY BEACH CONSENT CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 05/10/2011 g PAGE. 5 E D S L E D H E W AGENDA L D S I E J S U I ITEM # SUBJECT MOTION VOTE I A T E D N O S H L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D 5 7-ELEVEN, INC./COURTHOUSE APPROVED AS 11-0 Y Y Y Y Y Y Y Y Y Y Y MARKETPLACE OUTPARCELS, PROFFERED/ LLC at 2448 Nimmo Parkway re a retail CONDITIONED center. DISTRICT 7 -PRINCESS ANNE BY CONSENT a. Modification of CCOZ re Wawa site b. CUP re convenience store/strip retail center/ asoline um s 6 Ordinances to AMEND CZO: ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y CONSENT a. Portions of Sections 104/20/205 re commerciaVrecreational vehicles b. Section 108 re posting of signs relating to certain rezoning, etc/ applications c. Sections 239.0/ 90/1810 re Com Plan 7 Resolution to REFER to Planning Comm ADOPTED BY 11-0 Y Y Y Y Y Y Y Y Y Y Y an Ord to AMEND Sections 502/602 of CONSENT CZO re setback requirements for accessory structures L APPOINTMENTS: RESCHEDULED B Y C O N S E N S U S HUMAN RIGHTS COMMISSION MINORITY BUSINESS COUNCIL TOWING ADVISORY BOARD WORKFORCE HOUSING ADVISORY Appointed: BOARD Unexpired term thru 09/30/2013 Jolilda Saunders M UNFINISHED BUSINESS Mayor read a Statement accepting the resignation of Council Member Bellitto and advising the vacancy will be advertised and filled b a ointment on .I ul 12, 2011 N/O ADJOURNMENT 8:13 PM PUBLIC COMMENT No S Bakers NATIONAL NIGHT OUT OCTOBER 4, 2C'11