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HomeMy WebLinkAboutSEPTEMBER 9, 2003 MINUTESCITY COUNCIL MAYOR MEYERA E OBERNDORF, At-Large I~ICE MAYOR LOUIS R JONES, Baystde -Dtstrtct 4 HARRY E DIEZ, EL, Kernpsvtlle -Dtstrtct 2 MARGARET L EURE, Centervdle -Dtstrtct 1 REBA S McCLANAN, Ro~e Hall - Dtgtrtct 3 RICHARD A MADDOX, Beach -Dtstrtct 6 JIM P~EF'E, Prmcess Anne -Dtstrtct 7 PETER W SCHMIDE At-Large RON A VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L WOOD, Lynnhaven -Dtstrtct 5 JAMES K SPORE, Ctty Manager LESLIE L LILLEY, Ctty Attorney RUTH HODGES SMITH, MMC, Ctty Clerk CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA 9 September 2003 ('ID' HALL BUILDING I 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE (757) 427-4303 FAX (75 7) 426-5669 E MAIL Ctycncl~vbgovcom 11 CITY COUNCIL BRIEFING Performing Arts Theatre Council Members Schmidt and Wood - Conference Room - 1:00 PM CITY MANAGER'S BRIEFINGS Ao Community Budget Meeting Proposal Cathenne Whitesell - D~rector, Department of Management Services VDOT Projects to be Administered by City- Dean Block - Director, Department of Pubhc Works III. REVIEW OF AGENDA ITEMS IV. CITY COUNCIL COMMENTS Vo VI. INFORMAL SESSION A CALL TO ORDER- Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION FORMAL SESSION - Conference Room- - Council Chamber - 3:30 PM 6:00 PM A. CALL TO ORDER- Mayor Meyera E. Obemdorf A INVOCATION: Reverend Merlin L. Miller, Pastor Landstown Community Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL AND FORMAL SESSIONS September 2, 2003 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARING 211 Agricultural Reserve Program (ARP) at 1865 Indian River Road CONSENT AGENDA J. ORDINANCES/RESOLUTION 31 Ordinance to AMEND and REORDAIN § 2-85 of the City Code re annual leave 32 Resolution to EXPRESS support re two (2) U.S. Department of Justice grant applications for equipment needed in response to the use of weapons of mass destruction. , Virginia Department of Transportation (VDOT) re roadway capital projects, design work, site acquisition and construction activities: ao Resolution for the C~ty to adm~mster ~mprovements to Princess Anne Road, Kempsville Road, Witchduck Road Extended Phase II, Indian River Road Phase VII and Elbow Road Extended Phase II bo Ordinance to APPROPRIATE $35,485,142 to the following roadway capital projects: 0) Elbow Road Extended Phase II $5,307,085 (fi) Indian River Road Phase VII $9,349,000 (fii) Kempsville Road $467,057 0v) Princess Anne Road $19,648,000 (v) Witchduck Road Phase I $467,057 (vi) Witchduck Road Phase II $714,000 ~4 Ordinance to AUTHORIZE the acquisition of Agricultural Land Preservation (ARP) easement and the ISSUANCE by the C~ty of 1ts contract obligations re maximum pnnclpal amount of $255,346 in behalf of John G. Jr. and Edward F. Cromwell . Ordinance to AUTHORIZE acquisition of property in fee s~mple a and temporary construction easement from the Marshall Trust for the Maxey Manor pump station site at Phillips Avenue and Laskln Road by agreement. (DISTRICT 5 - LYNNHAVEN) o Ordinance to ACCEPT and APPROPRIATE $28,041 from the Federal Emergency Management Agency (FEMA) to the Fire Department's FY 2003-04 operating budget to support All - Hazards Emergency Operations and increase federal reserves accordingly. ~5 Ordinance to APPROPRIATE $52,339 from Oyster Heritage Trust and $15,000 from Wetlands / Dunes Restoration funds to the Department of Planmng re constructing oyster reefs, in the Lynnhaven River Watershed. K. PLANNING o the VARIANCES re §4.4(b)of the Subdivision Ordinance that all newly created lots meet all reqmrements of the City Zomng Ordinance (CZO) 511 Application of JOHN M. STEWARD, JR., 4464 Lee Avenue (DISTRICT 4- BAYS]DE) 512 Apphcation of H.A.V., INC. re the west s~de of Shoveller Avenue, north of Mill Dam Road. (DISTRICT 5 - LYNNHAVEN) Recommendation APPROVAL o Application of VIRGINIA BEACH FREEWILL BAPTIST CHURCH for a Condittonal Use Permtt for a child care center at 210 South W~tchduck Road. (DISTRICT 2 - KEMPSVILLE) Recommendation APPROVAL . Application of AVALON HILLS BIBLE CHURCH for a Condtttonal Use Permit re church expansion at 5728 Indian River Road. (DISTRICT 1 - CENTERVILLE) Recommendation APPROVAL Applications of KENNETH A. HALL FAMILY LTD. PARTNERSHIP at 3757 Bonney Road: (DISTRICT 3 - ROSE HALL) ao Change ofZontng Dtstrtct Classtficatton from I-1 Light Industrial District to B-2. Community Business District b. Condtttonal Use Permtt for motor vehicle sales and service Recommendation APPROVAL . Applications of CH & B ASSOCIATES, LLP for Changes ofZomng Dtstrtct Classtficatton from PD-H 1 Planned Development Housing: (DISTRICT 2 - KEMPSVILLE) to Conditional A-12 Apartment District and Conditional P-1 Preservation District with PD-H2 Overlays on the southeast comer of South Independence Boulevard and South Plaza Trail. bo and R-7.5 Residential District to Conditional B-2 Community Business D~stnct on the northwest comer of South Plaza Trail and Pnncess Anne Road to Con&tional 0-2 Office District on the southwest comer of South Independence Boulevard and South Plaza Trail Recommendation APPROVAL o Application of KEMPSHIRE ENTERPRISES, L.L.C. for a Modtficatton to the Timberlake PD-H1 Land Use Plan for property located on the southeast comer of South Independence Boulevard and SilverleafDnve. (DISTRICT 2 - KEMPSVILLE) . Recommendation APPROVAL Application of CHESTER EHRENZELLAR for a Change ofZontng Dtstrtct Classtficaaon from PD-H1 Planned Unit Development District to R-5D Residential Duplex District at 1961 Mill Creek Drive. (DISTRICT 7 - PRINCESS ANNE) Recommendation APPROVAL . Apphcatlon of BERKSHIRE-HUDSON CAPITAL XI, LLC for a Change of Zontng District Classification from 0-2 Office and R-5D Residential Duplex District to Cond~tmnal B-2 Community Business District on the northeast comer of Salem Road and South Independence Boulevard. (DISTRICT 1 - CENTERVILLE) Recommendation APPROVAL 9. Ordinances to AMEND of the City Zoning Ordinance (CZO): a. § 905 re sign regulations in the B-3A Pembroke Central Business Core D~strict bo § 401 re farm stands as accessory uses in the AG-1 and AG-2 Agricultural Zoning D~stncts. Recommendation APPROVAL L APPOINTMENTS AGRICULTURE ADVISORY COMMISSION MINORITY BUSINESS COUNCIL PARKS AND RECREATION COMMISSION TIDEWATER REGIONAL GROUP HOME COMMISSION WETLANDS BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT Agenda 09/09/03 blb www.vbgov.com If you are physically disabled or visually impaired and need assistance at this mcctxng, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) OUR MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 9 September 2003 Mayor Meyera E Oberndorf called to order the City Counctl Briefing re PERFORMING ARTS THEATRE, tn the Ctty Counctl Conference Room, City Hall, on Tuesday, September 9, 2003, at 1 O0 P M Counctl Members Present Harry E Dtezel, Vice Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Councd Members Absent Margaret L. Eure Ron A Vdlanueva [Entered 1 20 P M] [Faintly Vacatton] -2- CITY COUNCIL BRIEFING PERFORMING ARTS THEATRE 1:00 P.M. ITEM # 51640 Counctl Members Wood and Schmtdt, Liaisons to the Performing Arts Theatre, referenced thetr correspondence to Ctty Counctl, dated September 5, 2003, and the five (5) key dectstons relattve the Performtng Arts Theatre Councilman Wood, through a sertes of meettngs wtth the School Board representatives, the Ctty Manager, Martha "Marcy" &ms, Dtrector of Pubhc Ltbrartes, and staff, five (5) key development decisions were derived Use of the Public Private Education Facilities and Infrastructure Act (PPEA) Determination of the Theatre location within Town Center Inclusion of the Virginia Beach City Public Schools Performing Arts Academy Agreement on available funding package Finalization of the public participation component with the appointment of members to the Performing Arts Theatre Advisory Committee Counctl Members Schmtdt and Wood support the staff commtttee analysts that recommends the rejectton of the unsohctted PPEA proposal (s) submitted by the Armada/Hoffler Development Company If meaningful ctttzen and stakeholder involvement tn the proJect ts destred, thts approach wtll etther ctrcumvent that element or add to the ttme hne suggested tn theproposat if stakeholder involvement ts reahsttcally tncluded Relattve the Theatre locatton, Counctlman Schmtdt advised the most flextble locatton for the theatre ts Block 6, Town Center The acqutsttton of the Gahotos portton of Block 6 was for pubhc purposes and has only hmtted prtvate development potenttal Counctlman Wood referenced the tncluston of the Performtng Arts Academy Counctl Members Schmtdt and Wood's concluston on the questton of whether or not tt ts destrable or even posstble to strtve for the equahzatton of the finest Performtng Arts Academy tn the Commonwealth at Town Center ts that the questton ts premature A dectston does not need to be made now The recommended approach wouM be to request the sohctted PPEA proposals be structured to provide for the base theatre and an alternate that would ~nclude the Performtng Arts Academy When the proposals are recetved, the proposed concepts and esttmated costs can be evaluated to provide a much more informed dectston Councilman Schmtdt stated that to proceed responstbly, tt ts prudent to prehmtnartly outhne a potenttal fundtng package that tncludes a mtx of sources to accomphsh any reasonable chrectton the Ctty Council would eventually dectde upon September 9, 2003 -3- CITY COUNCIL BRIEFING PERFORMING ARTS THEATRE ITEM # 51640 (Continued) As City Council has previously discussed, various funding sources can be mixed to provide adequate dollars to accomplish the theatre project. These sources include the previously budgeted $3 5-MILLION in General Fund monies, potential naming rights, a major community fund raising campaign, a facility.[be (seat charge) and the additional capacity created by the historically low interest rates. Today the bond sale will be compiled and there will be a better picture of debt capacity under current revenue rates. By utilizing a solicited PPEA methodology, the financial advantages of the competitive market can be utilized, creative solutions maximized, perhaps incorporate private revenue generating options suggested by the private sector and achieve a not-to-exceed-price for the project. Councilman Wood advised it is important to involve the public and stakeholders in this project. Council Members Wood and Schmidt suggest proceeding immediately with the appointments to fill the positions in the Performing Arts Theatre Advisory Committee which City Council created in February. The Committee can work with staff on the project plan and evaluation of PPEA proposals to bring forward the best possible project. Council Members Schmidt and Wood suggested the Advisory Committee move forward with the development o fa fund raising plan once the process for acceptance of solicited PPEA proposals is complete. Councilman Schmidt summarized the recommendations: Rejection of the unsolicited PPEA proposal Use of a solicited PPEA process Tentative selection of Block 6 as the Theatre site Deferral of the Academy decision and request proposals to offer alternatives for such a facility Appointment of members to the Theatre Advisory Committee B Y CONSENSUS, the majority of City Council supported all five (5) recommendations. Mayor Oberndorf concurred, with reservations relative the Performing Arts Academy and the School's participation so long as she has the right to say "No" to this portion if the Schools do not participate. Council Lady McClanan prefers the Performing Arts Academy (School portion) not be included. Council Lady Eure concurred with reservations relative funding. September 9, 2003 -4- CITY MANA GER'S BRIEFING COMMUNITY MEETING BUDGET PROPOSAL 1:50 P.M. ITEM # 51641 The Ctty Manager, advised thts Brtefing responds to Ctty Councd 's request relattvepresentmg the Operatton Budget tn a dtfferent manner to provtde better communtcatton to the pubhc and interested organtzattons before the proposed budget was dehvered to Ctty Counctl Cahteryn Whttesell, Director of Management Servtces, referenced Proposed Resource Management Plan (RMP) Timeline September 8 Capital Improvement Plan Process begtns October 3 Operatmg Budget Process Begtns October 16, 20, or 23 Communtty Budget Meettng (The 20th tS VML and not apphcable) October 28 Capital Improvement Process Brtefing to Ctty Counctl October 30 Pubhc Heartng November 18 Five Year Forecast Brtefing to Vtrgtma Beach Ctty Counctl and School Board March 30 Proposed Resource Management Plan presented to Ctty Councd Aprtl WORKSHOPS May 11 Resource Management Plan Adoptton by Ctty Counctl How We Currently Get Public Input Pubhc Heartngs at the end of the budget Process Councd Pubhc Heartngs on spectfic toptcs Department meettngs wtth communtty on spectfic toptcs Boards, Commtsstons and Task Forces Watttng Ltsts for Servtces Letters to the Edttor regarding servtces Staff presentations at Communtty Group Meetmgs September 9, 2003 -5- CITY MANA GER'S BRIEFING COMMUNITY MEETING BUDGET PROPOSAL ITEM It 51641 (Continued) What's being Proposed Community Budget Meeting Town Meettng Communtty Conversatton Format Early Public Hearing Ctttzen Input early tn the process Adds to the tnput recetved at the Community budget meting Input from those not parttctpattng tn the Commumty Budget Meettng Commumty Budget Meettng 110 ctttzens Respondents to Cmzen Survey Open mvttatton to the General Pubhc October lith, 2ffn, 23ra Facthtated small groups 4 or 5 most important issues for FY 05 Resource Management Plan 4 or 5 ways to fund these Issues Parttctpatton by Counctl Members Use local personahty as Master of Ceremontes Ms Whttesell referenced the Dectston Potnts Do we want to do this How do we select the ctttzens On what date would you hke to hold the meettng October 16 October 20 October 23 Are the proposed questtons the ones you want to use 4 or 5 most important issues for FY 05 RMP 4 or 5 ways to fund these tssues Relattve parttctpatton wtth 110 ctttzens, thts ts a manageable number and about as large a group as can be accommodated at the vartous high schools These ctttzen meettngs have always been well attended If parttctpants tn the ctttzen survey have tndtcated an mterest re attendtng , mvttattons would be tssued to them If only a certain number of these ctttzens could attend, then the remainder to reach the total of110 ctttzens would be comptled from the rematnder of the communtty The advantage of Community Conversations ts the "one on one" chalogue exchange, not just wtth the City Counctl Member and ctttzens, but between the ctttzens wtth each other tn trytng to determtne a level of prtortty September 9, 2003 -6- CITY M/INA GER'S BRIEFING COMMUNITY MEETING BUDGET PR OPOS/IL ITEM # 51641 (Continued) Councdman Maddox referenced the utthzatton of e-mad concermng the Operattng Budget It ts not so easy for citizens to leave their homes at mght to attend Pubhc Hearings Mrs Whttesell has discussed with COMITrelattve provt&ng a Web based Pubhc Heartngformat The ctttzen survey ts a very good example of all tncome levels and demographtcs of the commumty at large Counctl Lady McClanan complimented the Commumty Conversattons concept, but that they are hmtted as to the number of younger people and various ethmc groups The older and rettred ctttzens are more hkely to have ttme to share thetr optntons Mrs Whttesell advtsed all members have tnput capabtltttes, all thoughts and &scusston points are captured by a recorder at each table A report to Ctty Counctl ts furmshed at the culmtnatton of the Conversations The first Commumty Conversatton entatled tnvttattons to ctttzens (tdenttfied by each Ctty Counctl Member) for a total of 110 The second Commumty Conversatton was an tnvttatton to all the Boards and Commtsstons The thtrd Communtty Conversatton was a combtnatton of the Ctty Councd Members exten&ng tnvttattons and an ad tn the newspaper Thts entatled a 50/50 spht Councd Lady Eure would also hke a link to the Internet, postng these two (2) questtons 4 or 5 most important issues for FY 05 Resource Management Plan (RMP) 4 or 5 ways to fund these issues For educational purposes, basic tnformatton relative funding could be provided for three major projects (Conventton Center, 19th Street Corrtdor, Town Center) Mrs Whttesell beheves a combtnatton City Page advtstng of the Webstte locatton and a form which the citizens could complete re their optntons and forward to the Ctty Counctl Lady Eure advtsed the notatton could be added 'f you do not have Internet access, tt ts avatlable at the Pubhc Ltbrartes" Mayor Oberndorf expressed apprectatton and advtsed the tnternet capabthttes would be an asset to the ctttzenry and thetr representative Ctvtc leagues Mayor Oberndorf advtsed the Ctty ts united and dectstons are best addressed on the good of the whole populatton, not just on spectfic populattons Because of the Vtrgtma Municipal League Conference, October 20, 2003, will not be considered as a Communtty Conversatton meettng Ms. Whttesell wdl advise confirmation of Schools for these Commumty Conversattons Relattve Counctlman Reeve's concern re e-streamtng the Communtty Conversattons, these sesstons could be videotaped, but will contact video services to determine ire-streaming ts possible Council Lady Wilson advtsed the Ctty contracts for e-streamtng Mrs. Whttesell wtll determtne thts cost BY CONSENSUS, Commumty Conversattons and a hnk to the Internet wtll be uttltzed Ms Whttesell advised summarized tnformatton will be provided to the attendees concerntng the Resource Management Plan Letters wtll be forwardtng acknowledgtng thetr attendance September 9, 2003 -7- CITY MANAGER'S BRIEFING VDOT PROJECTS TO BE ADMINISTERED BY THE CITY 2:20 P.M. ITEM # 51642 The City Manager advtsed the Ctty has requested, and VDOT has approved, the admtmstratton by the City of the destgn, stte acqutsttton and constructton of the referenced projects Elbow Road Extended Phase II, Indian River Road Phase VII, Kempsville Road, Princess Anne Road, Witchduck Road Phase I, and Witchduck Road Phase II. Thts tntttattve wtll allow the Ctty to dtrectly and more effecttvely coordtnate, manage and provtde resolution of proJects issues to resume destgn acttvtty It ts anttctpated that nottces to proceed wtth destgn for the five proJects wtll be tssued tn the Fall of 2003 Subsequent State budget shortfalls tn transportatton funchng caused VDOT to cancel various contracts for engtneertng servtces and tnstead endeavor to perform engmeertng destgn functtons "m-house ", thereby taxtng extsttng avatlable resources Mr Block Dtrector of Pubhc Works, advtsed the City ts requesting approval of the ProJect Agreement and Approprtatton Ordtnance Resolutton for the City to admtmster tmprovements to Prtncess Anne Road, Kempsvtlle Road, Wttchduck Road Extended Phase II, In&an Rtver Road Phase VII and Elbow Road Extended Phase II Ordinance to APPROPRIATE $35, 485,142 to the followmg road way capttal proJects (1) Elbow Road Extended Phase II $ 5,307, 085 (2) In&an River Road Phase VII $ 9, 349, 000 (3) Kempsvtlle Road $ 467,057 (4) Prtncess Anne Road $19,648,000 (5) Wttchduck Road Phase I $ 467,057 (6) Wttchduck Road Phase II $ 714, 000 All of the projects are currently tn the Capttal lmprovement Program This ts not the first time the City has admtntstrated VDOTprojects t e Independence Boulevard tn the Haygood area Thts is part of an effort to ulttmately manage all projects locally Htstory of thts Request March 21 Aprd 10 August 1 August 26 September 9 Ctty Counctl advtsed of tntent to admtntster five (5) projects Vtrgtnta Department of Transportatton (VDOT) agrees VDOT/Ctty complete terms of ProJect Admtntstratton Agreement, tdenttfied avatlable fundtng Pubhc Heartng held (No speakers) Agenda for Ctty Counctl constderatton Executton of ProJect Agreement Approprtatton of State Funds September 9, 2003 -8- CITY MANA GER'S BRIEFING VDOT PROJECTS TO BE ADMINISTERED B Y THE CITY ITEM ii 51642 (Continued) Mr Block detatled the Project overview' Princess Anne Road/Kempsville Road Intersection Improvements CIP 20048 Reahgnment of extsttng at-grade tntersectton wtth stx lanes Ctttzen Informatton meettng hem January 2002 City Council adoption of Ctttzen Advisory Commtttee's preferred ahgnment tn Aprt12002 Destgn approxtmately 25% complete Continuing CA C tnvolvement Majorproject acttvtties funded tn current VDOT&x-year lmprovement Plan Destgn, Acqutsttton and Constructton Witchduck Road Phase I CIP 2-931 &x-lane divided roadway from Prtncess Anne Road to 1-264, approxtmately 0 7 mtles Major project acttvtties funded tn current I/DOT &x~ Year Improvement Plan. Design and Partial Acqmsttton Witchduck Road Phase H ClP 2-025 &x-lane chvtded roadway from 1-264 to I/trgmta Beach Boulevard, approxtmately 0 7 mtles Major project acttvtttes funded tn current I/DOT &x- Year Improvement Plan Design and Parttal Acqutsttton Elbow Road Extended - Phase H CIP -152 Four-lane dtvtded roadway from In&an Rtver Road to Dam Neck Road (at Amphttheater), approxtmately 3 0 mtles Major project acttvtttes funded tn current VDOT &x- Year Improvement Plan Destgn and Acqutsttton September 9, 2003 -9- CITY MANAGER'S BRIEFING VDOT PROJECTS TO BE ADMINISTERED B Y THE CITY ITEM ii 51642 (Continued) Indian River Road Phase VII CIP 2-256 Four-lane dtvtded roadway from Lynnhaven Parkway to Elbow Road Extended project, approximately 2 2 mtles Major project acttvtttes funded tn current VDOT &x- Year Improvement Plan Design and Acqutsttton Funding Summary Total Estimated ProJect Costs $ 140 8-MILLION Requested approprtatton of State $ 35 5-MILLION Balance of State Approprtattons for Years 2-6 $ 34 5-MILLION Reqmred Future Fundmg Beyond Current 6year Plan $ 70 8-MILLION Benefits Directly and more effecttvely coor&nate, manage and provtde resolutton of proJect tssues tn a ttmely manner Greater flexibthty Possible acceleratton of project schedules and potenttal savmgs Control our own destiny Mr Block advtsed ad&ttonal City staff has not been requested Ctty Staff has conducted ttme stu&es Relattve a VDOT admtntstered project, the Ctty expends approxtmately as much ttme on thtese projects Mr Block did not belteve the additional time for the project manager would be that much greater Mayor Oberndorf referenced relattve the State clostng the toll road, now named 1-264 There are substanttal funds tn an accumulated account VDOT ts supposedly savtng these funds for the tmprovement of this road September 9, 2003 -10- CITY MANA GER'S BRIEFING VDOT PROJECTS TO BE ADMINISTERED B Y THE CITY ITEM # 51642 (Continued) Robert Matthtas, Assistant to the City Manager, advised there ts approximately $I 1 5-MILLION tn the toll account for resurfactng I-264, when necessary The road does not need resurfactng at thepresent ttme The funds are still there, however, these funds are not earning tnterest as they are tn the General Fund These funds were earning tnterest when establtshed as a Toll Fund project Counctl Lady McClanan DISCLOSED and ABSTAINED pursuant to the State and Local Government Conflict of Interest Act regarding City Council's discussion and vote on the proposed Amendment to the FY 2004 Capttal Budget that would transfer admtntstratton of and fundtngfor, five roadway projects, tncludtng the Princess Anne/Kempsvtlle Intersection Project, from the Vtrgtnta Department of Transportatton to the Ctty Council Lady McClanan and her husband have an ownershtp tnterest tn Kempsvtlle Professtonal Center, Inc , and that corporatton owns property that ts located at 425 South Wttchduck Road, near the tntersectton of Kempsvtlle Road and Prtncess Anne Road Counctl Lady McClanan's letter of August 26, 2003, ts hereby made a part of the record September 9, 2003 -11- AGENDA RE VIE ~Y SESSION 2:55 P.M. ITEM # 51643 Ordtnance to AMEND and REORDAIN § 2-85 of the Ctty Code re annual leave Counctl Lady McClanan expressed concern and advised she wtll vote NAY on this ttem The Ctty Manager advtsed current City Code provtstons authortze a maxtmum accumulatton of four hundred (400) hours of annual leave at any year end for full time employees, without regard to the employee's hourly workweek or rate of annual leave accumulatton and use Four hundred (400) hours of annual leave accumulation equals ten (1 O) weeks of paid leave for a forty (40) our workweek employee, but only approximately seven (7) weeks of paid leave for a fifty-six (56) hour workweek employee Thts ordtnance bastcally effects the Ftre Department employees and would allow fifty-stx (56) hour workweek employees to accumulate the equtvalent of ten (1 O) weeks of annual leave Regtna Htlhard, Human Resources, advtsed there ts a schedule tn the Fatr Labor Standards Act (FLSA), whtch allows dtfferent earnings based upon hours worked per week. The Ctty ts tn strtct comphance wtth the FLSA ITEM # 51644 J.3. Virginia Department of Transportation (VDOT) re roadway capttal projects, destgn work, site acqmsttton and construction activities Resolution for the City to administer improvements to Princess Anne Road, Kempsvdle Road, Wttchduck Road Extended Phase II, In&an River Road Phase VII and Elbow Road Extended Phase II b Ordinance to APPROPRIATE $35,485,142 to the following roadway capttal projects (I) Elbow Road Extended Phase II (2) In&an Rtver Road Phase VII (3) Kempsvdle Road (4) Princess Anne Road (5) Wttchduck Road Phase I (6) Wttchduck Road Phase II $ 5,307,085 $ 9,349,000 $ 467,057 $19,648,000 $ 467,057 $ 714,000 Counctl Lady McClanan DISCLOSED and will ABSTAIN Pursuant to the State and Local Government Confltct of lnterest Act regarding Ctty Counctl's chscusston and vote on the proposed Amendment to the FY 2004 Capttal Budget that would transfer admtntstratton of, and fundtngfor, five roadwayprojects, tncludtng the Princess Anne/Kempsvtlle Intersection project, from the Vtrgtnta Department of Transportation to the Ctty Counctl Lady McClanan and her husband have an ownershtp mterest tn Kempsvtlle Professional Center, Inc , and that corporatton owns property that ts located at 425 South Wttchduck Road, near the tntersectton of Kempsvtlle Road and Princess Anne Road Council Lady McClanan 's letter of August 26, 2003, ts hereby made a part of the record September 9, 2003 - 12- AGENDA RE VIE W SESSION ITEM # 51645 ,14 Or&nance to AUTHORIZE the acqutsttton of Agricultural LandPreservation (ARP) easement and the ISSUANCE by the Ctty of tts contract obhgattons re maximum prmctpal amount of $255, 346 tn behalf of ,1ohn G ,Ir and Edward F. Cromwell Counctl Lady McClanan wtH vote NAY on thts ttem ITEM # 51646 BY CONSENSUS, the following shah compose the CONSENTAGENDA: ,11 J2 ,14 Ordtnance to AMEND and REORDAIN § 2-85 of the Cay Code re annual leave Resolutton to EXPRESS support re two (2) U.S. Department of Justice grant apphcattons for eqmpment needed tn response to the use of weapons of mass destruction Virginia Department of Transportation (VDOT) re roadway capttal projects, destgn work, stte acqmsttton and construction acttvtttes Resolutton for the City to admtntster tmprovements to Prtncess Anne Road, Kempsvtlle Road, Wttchduck Road Extended Phase II, Inchan Rtver Road Phase VII and Elbow Road Extended Phase II Ordtnance to APPROPRIATE $35,485,142 to the followtng roadway capttal projects (1) Elbow Road Extended Phase II (2) In&an Rtver Road Phase VII (3) Kempsvtlle Road (4) Prtncess Anne Road (5) Wttchduck Road Phase I (6) Wttchduck Road Phase II $ 5,307,085 $ 9,349,000 $ 467,057 $19,648,000 $ 467,057 $ 714,000 Or&nance to AUTHORIZE the acqutsttton of Agricultural Land Preservation (ARP) easement and the ISSUANCE by the Ctty of tts contract obhgattons re maxtmum prmctpal amount of $255,346 tn behalf o f John G Jr and Edward F Cromwell September 9, 2003 -13- AGENDA RE VIEW SESSION ITEM # 51646 (Continued) ,I5 .I6 .17 Or&nance to AUTHORIZE acqutsttton of property tn fee stmple and a temporary construction easement from the Marshall Trust for the Maxey Manor pump statton stte at Phtlhps Avenue and Lasktn Road by agreement (DISTRICT 5 - L YNNHA VEN) Or&nance to ACCEPT and APPROPRIATE $28,041 from the Federal Emergency Management Agency (FEMA) to the Ftre Department's FY 2003-04 operattng budget to support All - Hazards Emergency Operations and tncrease federal reserves accordtngly Or&nance to APPROPRIATE $52,339 from Oyster Herttage Trust and $15,000 from Wetlands /Dunes Restoration funds to the Department of Planntng re constructtng oyster reefs, tn the Lynnhaven River Watershed Counctl Lady McClanan wdl vote NAY on Item .1 1 Councd Lady McClanan wtll ABSTAIN on Item 3a/b Counctl Lady McClanan wtll vote NAY on Item J. 4 September 9, 2003 -14- AGENDA RE VIEW SESSION ITEM # 5164 7 K1 VARIANCE re 3~4 4(b)of the Subdtvtston Ordtnance that aH newly created lots meet aH the requtrements of the Ctty Zoning Ordinance (CZO) Apphcatton of JOHN M. STEWARD, JR., 4464 Lee Avenue to &vide the parcel tn such a way as to put the extsttng stngle-famtly and garage apartment on separate parcels (DISTRICT 4 - BA YSIDE) Vtce Mayor Jones advtsed contacts from concerned ctttzens The vote of the Planmng Commtsston was 7-4 Thts ttem shah be chscussed durtng the Formal Sesston ITEM # 51648 K5 Apphcattons of CH & B ASSOCIATES, LLP for Changes o_f Zomng District Classification from PD-H 1 Planned Development Houstng (DISTRICT 2 - KEMPSVILLE), to Conditional A-12 Apartment Dtstrtct and Condtttonal P-1 Preservatton Dtstrtct wtth PD-H2 Overlaps on the southeast corner of South Independence Boulevard and South Plaza Tratl and R-7.5 Residential Dtstrict to Condtttonal B-2 Communt_ty Bustness Dtstrtct on the northwest corner of South Plaza Trad and Prtncess Anne Road to Con&ttonal 0-2 Office Dtstrtct on the southwest corner of South Independence Boulevard and South Plaza Tratl Counctlman Dtezel referenced the posttton of some of the Ctvtc Leagues Councd Lady Eure referenced the correspondence from James Lamb, contatned wtthtn the Ctty Councd Agenda and tnqutred tf there has been a response to hts tnqutrtes Stephen I~'htte, Planmng, advtsed Carolyn A. K Smtth, Land Use Planner, contacted Mr. Lamb and responded All his issues have been resolved Thts ttem wtH be chscussed durtng the Formal Sesston September 9, 2003 - 15- AGENDA RE VIEW SESSION ITEM # 51649 BERKSHIRE-HUDSON CAPITAL XI, LLC for a Change of Zontng Dtstrtct Classtficatton from 0-2 Office and R-SD Restdenttal Duplex Dtstrtct to Condtttonal B-2 Communtty Bustness Dtstrtct on the northeast corner of Salem Road and South Independence Boulevard (msrmcr - Councd Lady Eure chstrtbuted information relative standard conchttons that are usually recommended to address issues of fencing, stgnage, balloons and streamers As this apphcatton ts a proffered change of zontng, however, stnce thts ts a proffered Condtttonal Zomng, these condtttons cannot be added wtthout returntng the apphcatton to the Planntng Commtsston Councd Lady Eure has contacted Attorney Nutter, and ts anttctpattng the apphcant wtll agree to the conchttons under stte plan revtew Satd tnformatton ts hereby made a part of the record Vtce Mayor Jones wtll DISCLOSE andABSTAINpursuant to Sectton 2 2-3115(E), Code of Vtrgtnta, re Ctty Counctl's chscusston and vote of the appltcatton submttted by Berkshtre-Hudson Capttal XI, LLC (Berkshtre-Hudson) for property located at the northeast corner of Salem Road and Independence Boulevard The nature of hts personal tnterest ts that he has an ownership tnterest tn Holloman-Brown Funeral Home, Inc, which exceeds three percent of tts total equtty Holloman-Brown has entered tnto a contract with Berkshire-Hudson to sell a 4 964 acre parcel of property located at the intersection of Independence Boulevard and Salem Road Berkshire-Hudson has apphed for a change tn zomng which, tf approved, would allow constructton of a drug store on thts property Because the contract for the sale of the property ts conttngent upon thts change tn zontng, tt ts reasonably foreseeable that ttolloman-Brown could reahze a benefit or detrtment as a result of thts transaction Vice Mayor Jones letter of September 9, 2003, ts hereby made a part of the record Asststant Ctty Attorney Kay Wdson advised the fence ts addressed tn the proffered agreement Karen Lasley, Zomng Admimstrator, advtsed the stgns shown on the proffered elevattons would not be allowed as they exceed the stgn ltmttattons of the Ctty Zontng Ordtnance Balloon and streamer restrtcttons are contatned wtthtn the Ctty Zontng Ordtnance ITEM #51650 K 9a Ordtnance to AMEND the Ctty Zoning Ordtnance (CZO) re ~ 905 re sign regulations tn the B-3A Pembroke Central Bustness Core Dtstrtct Counctl Lady McClanan wtll vote NAY on thts ttem September 9, 2003 -16- AGENDA RE VIE W SESSION ITEM #51651 K9b Or&nance to AMEND the Ctty Zontng Ordtnance (CZO) re $ $ 401 re farm stands as accessory uses tn the A G-1 and AG-2 Agrtcultural Zontng Dtstrtcts Counctl Lady McClanan expressed concern relattve replactng the requtrement that at least fifty percent (50%) by value of the produce sold be grown by the operator of the farm stand These are really open att grocery stores Councdman Reeve advtsed this amendment to the City Zontng Ordtnance (CZO) was revtewed by the Agrtcultural Advtsory Commtsston and they advised the focus of the conversatton seemed to center on the destgn Thts ttem wtll be DEFERRED INDEFINITELY to allow Councdman Reeve to confer wtth Jack Whttney, Dtrector of Agrtculture, and the Agrtcultural Advtsory Commtsston ITEM #51652 Councilman Schmidt wished to ADD to the Agenda SCHEDULING RECONSIDERATION FORT WORTH DEVELOPMENT, INC. CUP Condo on Shore Drive at D~nwtd&e Road/ Dupont Circle (Approved by City Councd 08/12/2003) Counctlman Schmtdt tnqutred tf thts ttem could be dtscussed tn today's CLOSED SESSION, prtor to the Formal Sesston The Ctty Attorney advtsed tf chscusston entatls acqutsttton or dtsposttton of that proper.W, or tf there ts a pendtng legal tssue destrtng advtce of Counsel, thts ttem can be ADDED to the Closed Sesston ITEM #51653 BY CONSENSUS, the followtng shall compose the CONSENT AGENDA: K1 VARIANCE re $4 4(b)of the Subdtvtston Or&nance that all newly created lots meet all the requtrements of the Ctty Zonmg Ordtnance (CZO) b Apphcatton of H.A.V., INC. re the west stde of Shoveller Avenue, north of Mtll Dam Road (DISTRICT 5 - L YNNHA VEN September 9, 2003 -17- AGENDA RE VIEW SESSION K2 K3 K4 K6 K7 K9. ITEM #51653 (Continued) Apphcatton of VIRGINIA BEACH FREEWILL BAPTIST CHURCH for a Con&ttonal Use Permit for a child care center at 210 South Wttchduck Road (DISTRICT 2 - KEMPSVILLE) Apphcatton of A VALON HILLS BIBLE CHURCH for a Condtttonal Use Permtt re church expanston at 5728 In&an Rtver Road (DISTRICT 1 - CENTER VILLE) Apphcattons of KENNETH A. HALL FAMILY LTD. PARTNERSHIP at 3757 Bonney Road (DISTRICT 3 - ROSE HALL) Change of Zontng Dtstrtct Classtficatton from I-1 Ltght Industrtal Dtstrtct to B-2 Communtt¥ Bustness Dtstrtct b Condtttonal Use Permttfor motor vehicle sales and service bo Apphcatton of KEMPSHIRE ENTERPRISES, L.L. C. re the Ttmberlake PD-H1 Land Use Plan for property located on the southeast corner of South Independence Boulevard and Stlverleaf Drtve (DISTRICT 2 - KEMPSVILLE Apphcatton of CHESTER EHRENZELLAR for a Change o_f Zomng Dtstrtct Classtficatton .from PD-H1 Planned Untt Development Dtstrtct to R-5D Restdenttal Duplex Dtstrtct at 1961 Mtll Creek Drtve (DISTRICT 7- PRINCESS ANNE) Ordtnances to AMEND of the City Zontng Ordtnance (CZO) 905 re sign regulations tn the B-3A Pembroke Central Bustness Core Dtstrtct 401 re farm stands as accessory uses tn the AG-1 and G-2 Agrtcultural Zontng Dtstrtcts Councd Lady McClanan wtll vote NAY on Item K 9 a Item K 9 b will be DEFERRED INDEFINITEL Y, B Y CONSENT September 9, 2003 -18- CITY COUNCIL COMMENTS 3:25 P.M. ITEM # 51654 Due to confltcts, the tour of City View Mountain tentattvely scheduled for October 21, 2003, had to be cancelled Counctl Lady Eure requested City Councd Members check their schedules and advise of a preference of etther October 7 or October 14, 2003 ( tf tt ts a clear day) ITEM # 51655 Councd Lady Wilson and Counctl Lady McClanan, Liaisons to the Boards and Commtsstons Revtew/Study referenced the Citizens Committee on Boards and Commissions recommendatton 1 Each Board or Commtsston shall have one destgnated Ctty Counctl "contact" Council Lady Wdson requested a work session be scheduled to destgnate the Contact Person The City Clerk shall provtde a hst of all of the Boards and Commtsstons wtth the names oJ Ltatson spectfied and "None Assigned" noted for those Boards and Commtsstons who do not have Contacts Thts hst will be dtstrtbuted to the Mayor and Ctty Counctl to note thetr preference ITEM # 51656 Mayor Oberndorf advtsed Counctl Members Dtezel, Eure and Wdson are attenchng the Trauma Center Task Force meettngs relattve the destgnatton of Sentara Vtrgtnta Beach General Hospttal from a Trauma Level II Center to Level III Counctl Lady Wtlson referenced the Trauma Center Task Force meettng on September 8, 2003 Counctl Lady Wtlson advtsed Sentara Vtrgtnta Beach General ts endeavortng to retnstate thetr Trauma Level II destgnatton The majortty of the emergency me&cai cases are betng routed to Sentara Vtrgtnta Beach General Approxtmately mneteen (19) cases tn the last ntne (9) weeks have had to be referred to the Sentara Norfolk General Trauma Level I Center. A new orthope&c surgeon will soon be asstgned to Sentara Vtrgtnta Beach Sentara Vtrgtnta Beach General must reapply to the State for Level H Trauma Center status As per suggestton of Dr Edward Brtckell, a letter of tntent wtll be drafted Mayor Oberndorf advtsed a legtslattve agenda request should be formulated requesttng the General Assembly assure any major health care corporatton provide adequate nottce tn wrtttng, as well as verbally, re Trauma Center designations Mayor Oberndorf advised she received no response from her correspondence to Sentara Prtor to the merger wtth Sentara Corporatton, the ctttzens of Vtrgtnta Beach owned Vtrgtnta Beach General Hospttal Counctlman Dtezel advtsed currently Sentara Vtrgtnta Beach General ts provwhng Level II Trauma Center servtces now (approxtmately etghty-four percent (84%) when the Orthopedtc phystctans are avatlable Counctlman Dtezel requested the Ctty Counctl wrtte a letter expresstng apprectatton for thetr support September 9, 2003 - 19- CITY COUNCIL COMMENTS ITEM # 51656 (Continued) Councdman Reeve tnqutred tf Emergency Me&cai Servtces ts aware Sentara Vtrgtma Beach General Hospttal can provtde Level II Trauma Center servtces Counctl Lady Wtlson advtsed Chtef Bruce W Edwards, Emergency Me&cai Servtces, was tn attendance a the meettng The hospttal ts contacted and the dectston ts made at that moment relattve transportatton of the pattent to Sentara Vtrgtnta Beach General or Sentara Norfolk General Hospttal Counctl Lady Wtlson advtsed Sentara referenced a Commumty Health Assessment, whtch would be researched by an tndependent agency. Sentara was requested toprovtde details relative concept and fun&ng Council Lady Eure advtsed Sentara Virginia Beach General made a verbal commitment relative their intent not to delete services Council Lady Eure advised the Sentara Health Care Board of Dtrectors now has fourteen (14) members selected by partty, however, tn October 2004, thts wtll no longer be equal memberships of Norfolk and gtrgtnta Beach ctttzens Partty does not extst after October 2004 The majortty of the Board Members now are Ytrgtnia Beach ctttzens Mayor Oberndorf suggested Ctty Counctl request a member be appotnted to represent them on Sentara's Board to assure the servtces offered to the ctttzens are not depleted ITEM # 51657 Counctl Lady Eure referenced betng lobbted to wrtte letters of support for other me&cal firms such as Bon Secours Counctl Lady Eure had written correspondence relative Sentara and was concerned the letters were on Ctty of Vtrgtnta Beach letterhead and wrttten as a ctty offictal Thts carrtes responstbthty and Counctl Lady Eure beheved these letters should be quahfied as one's personal optmon Mayor Oberndorf advtsed she has no problem correspon&ng relattve an eye surgery center, or a Bon Secours ambulatory surgtcal center near the Cathohc Htgh School She belteves thts ts healthy competttton Mayor Oberndorf suggested that tf City Counctl feels tt ts tnapproprtate for tn&vtdual Counctl Members to wrtte letters of support then a Resolutton nottng that declaratton would be tn order for a future agenda Counctl Members Maddox and Reeve have wrttten letters of support for the Cancer Center at Prtncess Anne Commons re Sentara September 9, 2003 - 20 - ITEM # 51658 Mayor Meyera E. Oberndorf called to order the INFORMAL SESSIONof the VIRGINIA BEACH CITY COUNCIL tn the Ctty Councd Conference Room, Ctty Hall Budding, on Tuesday, September 9, 2003, at 3 58PM Councd Members Present. Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf dtm Reeve, Rosemary Wtlson, Peter W Schmtdt and James L Wood Councd Members Absent Ron A Villanueva [Famdy Vacatton] September 9, 2003 -21 - ITEM # 51659 Mayor Meyera E Oberndorf entertatned a motton to permtt Ctty Counctl to conduct tts CLOSED SESSION, pursuant to Section 2 1-344(A), Code of Vtrgmta, as amended, for the followmg purpose PERSONNEL MATTERS Dtscusston, constderatton or tntervtews of prospecttve can&dates for employment, assignment, appointment, promotion, performance, demotion, salaries, &sctphntng, or restgnatton of spectfic pubhc officers, appotntees, or employees pursuant to Sectton 2 2-3711 (A) (1) To Wit Appointments Boards and Commissions Agrtcultural Advisory Commtsston Hampton Roads Economtc Development Alhance Mmortty Bustness Counctl Parks and Recreatton Commtsston Performtng Arts Theatre Advtsory Commtttee Ttdewater Regtonal Group Home Commtsston Towing Advisory Board Wetlands Board PUBLICL Y-HELD PROPERTY Dtscusston or consideration of the acqutsttton of real propertyfor a pubhcpurpose, or of the &sposttton ofpubhcly-held real property, where &scusston tn an open meettng would adversely affect the bargatning posttton or negotiatmg strategy of the pubhc body pursuant to Sectton 2 2-3711(A)(3) Acqutsttton/Dtsposttton of Property - Beach Dtstrtct - Centervtlle Dtstrtct - Baystde Dtstrtct LEGAL MATTERS Consultatton wtth legal counsel or brtefings by staff members, consultants, or attorneys pertatntng to actual or probable httgatton, or other specific legal matters requesttng the provision of legal advice by counsel pursuant to Section 2 1-344(A)(7) Vtrgtnta Beach Hol&ng Corporatton, Kana Corporatton Fala Corporation and Kana Corporation v the United States of America Upon motton by Councdman Wood, seconded by Counctl Lady Eure, Ctty Counctl voted toproceed tnto CLOSED SESSION. Voting 10-0 Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R. Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Rosemary Wtlson, Peter W Schmtdt and James L Wood Council Members Voting Nay None Council Members Absent Ron A Vtllanueva (Break: 3:58 P.M. - 4:05 P.M.) (4:05 P.M. - 5:35 P.M. ) (Dinner: 5:35 - 6:00 P.M.) September 9, 2003 - 22 - FORMAL SESSION VIRGINIA BEA CH CITY COUNCIL September 9, 2003 6:00 P.M. Mayor Meyera E Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL tn the Council Chamber, City Hall Budding, on Tuesday, September 9, 2003, at 6 O0 P M Counctl Members Present Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A. Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Absent Ron A Villanueva [Faintly Vacatton] INVOCATION Reverend Merhn L Mtller, Pastor Landstown Commumty Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA September 9, 2003 Item V-E. - 23 - CER TIFICA TION OF CLOSED SESSION ITEM # 51660 Upon motton by Counctlman Schmtdt, seconded by Counctlman Reeve, Cay Counctl CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only pubhc bustness matters lawfully exempt from Open Meeting requirements by Vtrgtnta law were dtscussed tn Closed Sesston to whtch this certification resolution apphes, AND, Only such pubhc bustness matters as were tdenttfied tn the motton convemng the Closed Sesston were heard, dtscussed or constdered by Vtrgtnta Beach Ctty Counctl Vottng 10-0 Council Members l/ottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jim Reeve, Peter }F Schmtdt, Rosemary }Ftlson and James L }Food Councd Members Voting Nay None Councd Members Absent Ron A Vtllanueva September 9, 2003 RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Vlrglma Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded m ITEM # 51659, page 21, and m accordance w~th the provls~ons of The Virginia Freedom of Information Act, and, WHEREAS: Sect:on 2 2-3 711 (A) of the Code of V~rglnla requires a certification by the govermng body that such Closed Sessmn was conducted ~n conformity w~th V~rg~ma law. NOW, THEREFORE, BE IT RESOLVED: That the Vlrg~ma Beach C~ty Councd hereby certffies that, to the best of each member's knowledge, (a) only public bus~ness matters lawfully exempted from Open Meeting reqmrements by V~rg~ma law were discussed ~n Closed Session to which th~s certification resolution apphes; and, (b) only such pubhc bus~ness matters as were ~dentffied ~n the motion convemng th~s Closed Session were heard, d~scussed or considered by V~rg~ma Beach C~ty Council P~h Hodges ~rm~t~, MMC C~ty Clerk September 9, 2003 - 24 - Item V-F. 1. MINUTES ITEM # 51661 Upon motton by Counctlman Schmtdt, seconded by Counctlman Maddox, Ctty Counctl APPROVED the Minutes of the INFORMAL and FORMAL SESSIONS of September 9, 2003. Vottng 9-0 Council Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vice Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Jtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Voting Nay None Counctl Members Abstatntng Mayor Meyera E Oberndorf Counctl Members Absent Ron A Vtllanueva Mayor Oberndorf ABSTAINED as she not tn attendance during the City Council Sesston of September 2, 2003 Mayor Oberndorf was representtng the US Conference of Mayors on Mtsston to Afrtca 2003 (delegatton of ntne (9) Mayors) Mayor Oberndorf was leadtng thts delegatton to Swaztland September 9, 2003 - 25 - Item V-G. ADOPT AGENDA FOR FORMAL SESSION ITEM # 51662 BY CONSENSUS, Ctty Counctl ADOPTED: AGENDA FOR THE FORMAL SESSION September 9, 2003 - 26- Item V-H. 1. PUBLIC HEARING ITEM # 51663 Mayor Oberndorf DECLARED ,4 PUBLIC HEARING: Agricultural Reserve Program (ARP) at 1865 Indian River Road There betng no speakers, Mayor Oberndorf CLOSED THE PUBLIC COMMENT. September 9, 2003 -27- Item V-J. ORDINANCES/RES OL UTIONS ITEM # 51664 Upon motton by Vtce Mayor Jones, seconded by Counctlman Wood, Ctty Councd APPROVED IN ONE MOTION Or&nances/Resoluttons 4 and 5 of the CONSENT AGENDA. Vottng 10-0 (By ConsenO Council Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, dtm Reeve, Peter W Schmtdt, Rosemary Wilson and James L Wood Council Members Voting Nay None Counctl Members Absent Ron A Vdlanueva Councd Lady McClanan wtll vote NAY on Item d 4 (Cromwell ARP) September 9, 2003 - 28 - Item V-J. 1. ORDINANCES/RES OL UTIONS ITEM # 51665 Barbara Messner, Post Office Box 514, Phone 422-1902, spoke tn OPPOSITION Upon motton by Vtce Mayor Jones, seconded by Councdman Wood, Ctty Counctl ADOPTED Or&nance to AMEND and REORDAIN § 2-85 of the Ctty Code re annual leave Vottng' 9-1 Councd Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Rtchard A Maddox, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay Reba S McClanan Council Members Absent None September 9, 2003 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 AN ORDINANCE TO AMEND ~ND REORDAIN THE VIRGINIA BEACH CITY CODE PERTAINING TO ANNUAL LEAVE; TAKING NOT REQUIRED; LIMITATION ON ACCUMULATION SECTION AMENDED' ~2-85 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 2-85 of the City Code is hereby amended and reordained to read as follows: Sec. 2-85. Same--Taking not required; limitations on accumulation. (a) No employee shall be required to take annual leave. No employee shall be paid for unused annual leave except upon termination of employment. Upon termination, employees shall be paid straight time for accrued annual leave; and payment shall be processed as expeditiously as possible. No employee shall be allowed to carry more than four hundred (400) hours of accumulated annual leave from one calendar year to the next if the employee works a forty (40) hour workweek, or five hundred sixty (560) hours of accumulated annual leave from one calendar year to the next if the employee works a fifty-six hour workweek of accumulated annual leave =~u~L one calendar year to the next, nor shall any employee who terminates employment with the city receive pay for more than four hundred (400) hours of accumulated annual leave if the employee works a forty (40) hour workweek, or five 28 29 30 31 32 33 34 35 36 hundred sixty (560) hours of accumulated annual leave if the employee works a fifty-six hour workweek. (b) Part-time employees hired on or after July 1, 1996, shall not be allowed to carry more than forty-eight (48) hours of accumulated personal leave from one calendar year to the next, nor shall part-time employees receive any monetary payout upon termination of employment for their accumulated personal leave. 37 38 Adopted by the Council of the City of Virginia Beach, Virginia, on the 9th day of September, 2003. CA-8823 ordin/noncode/Sec 2-85. ord.wpd March 31, 2003 R-4 - 29- Item V-J.2. ORDINANCES/RES OL UTIONS ITEM # 51666 Barbara Messner, Post Office Box 514, Phone 422-1902, spoke tn OPPOSITION Upon motion by Vice Mayor Jones, seconded by Councdman Schmtdt, City Councd ADOPTED Resolution to EXPRESS support re two (2) U.S. Department of Justice grant apphcattons for eqmpment needed tn response to the use of weapons of mass destruction Vottng. 10-0 Councd Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba $ McClanan, Richard A Maddox, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Rosemary Wdson and James L Wood Councd Members Vottng Nay None Counctl Members Absent Ron A Vdlanueva September 9, 2003 A RESOLUTION TO EXPRESS SUPPORT FOR TWO U.S. DEPARTMENT OF JUSTICE GRANT APPLICATIONS FOR EQUIPMENT NEEDED FOR RESPONSE TO THE USE OF WEAPONS OF MASS DESTRUCTION 5 WHEREAS, the City of Virginia Beach has applied for two 6 equipment grants from the U.S. Department of Justice, related to 7 local response to the use of weapons of mass destruction. 8 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 9 VIRGINIA BEACH, Virginia: 10 1. That James K. Spore, City Manager, is hereby authorized 11 to execute for and in behalf of the City of Virginia Beach, a 12 public entity established under the laws of the State of Virginia, 13 this application and to file it in the appropriate State Office 14 for the purpose of obtaining certain Federal financial assistance 15 under the OJP, National Domestic Preparedness Office Grant 16 Program(s), administered by the Commonwealth of Virginia. 17 2. That the Virginia Beach City Council, a public entity 18 established under the laws of the Commonwealth of Virginia, hereby 19 authorizes its agent to provide to the Commonwealth and to the 20 Office of Justice Programs (OJP) for all matters pertaining to 21 such Federal financial assistance any and all information 22 pertaining to these Grants as may be requested. 24 Adopted by the Council of the City of Virginia Beach, Virginia 25 on the 9 day of Sept. , 2003. CA-9002 Ordin/Noncode/DOJequipres. wpd R-1 August 27, 2003 APPROVED AS TO CONTENT' ~~J~- S~e~v~ Management APPROVED AS TO LEGAL SUFFICIENCY' City Attorney's office - 30- Item V-J. 3. a/b ORDINANCES/RES OL UTIONS ITEM # 5166 7 Barbara Messner, Post Office Box 514, Phone 422-1902, spoke tn OPPOSITION Upon motton by Vtce Mayor Jones, seconded by Counctl Lady Wtlson, Ctty Counctl ADOPTED Virginia Department of Transportation (VDOT) re roadway capital proJects, destgn work, site acqutsttton and constructton acttvtttes Resolutton for the City to admtntster tmprovements to Prtncess Anne Road, Kempsvtlle Road, Wttchduck Road Extended Phase H, In&an Rtver Road Phase VII and Elbow Road Extended Phase H b Or&nance to APPROPRIATE $35,485,142 to thefollowtng roadway capttal projects (1) Elbow Road Extended Phase II (2) In&an Rtver Road Phase VII (3) Kempsvtlle Road (4) Prmcess Anne Road (5) Wttchduck Road Phase I (6) Wttchduck Road Phase II $ 5,307,085 $ 9,349,000 $ 467,057 $19,648,000 $ 467,057 $ 714,000 Vottng 9-0 Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Rtchard A Maddox, Mayor Meyera E Oberndorf Jim Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Council Members Vottng Nay None Counctl Members Abstatntng Reba S McClanan Council Members Absent Ron A Vtllanueva Council Lady McClanan DISCLOSED and ABSTAINED Pursuant to the State and Local Government Confltct of lnterest Act regar&ng Ctty Counctl's &scusston and vote on the proposed amendment to the FY 2004 Capttal Budget that would transfer admtntstratton of and fun&ngfor, five roadway projects, tnclu&ng the Prtncess Anne/Kempsvtlle Intersection ProJect, from the Vtrgtnta Department of Transportatton to the Ctty Counctl Lady McClanan and her husband have an ownership mterest tn Kempsvtlle Professtonal Center, Inc , and that corporatton owns property that ts located at 425 South Wttchduck Road, near the tntersectton of Kempsvtlle Road and Prmcess Anne Road Counctl Lady McClanan 's letter of August 26, 2003, ts hereby made a part of the record September 9, 2003 City of Virginia [ each REBA S McCLANAN COUNCIL LADY - DISTRICT 3 - ROSE HALL PHONE (757) 340-8835 FAX (757) 426-5669 August 26, 2003 Mrs. Ruth Hodges Smith, MMC City Clerk Municipal Center V~rglma Beach, Virginia 23456 Dear Mrs. Smith: Re: Disclosure Pursuant to the State and Local Government Conflict of Interests Act Pursuant to the State and Local Government Conflict of Interests Act, I make the following declaration: o I am executing this written disclosure regarding City Council's discussion and vote on the proposed amendment to the FY 2004 Capital Budget that would transfer administration of, and funding for, five roadway projects, including the Pnncess Anne/Kempsvflle Intersection ProJect, from the Vlrglma Department of Transportation to the City. . The nature of my personal interest is that my husband and I have an ownership interest in Kemspvflle Professional Center, Inc., and that corporation owns property that is located at 425 South Wltchduck Road (GPIN 1466 79 5400 0000), near the intersection of Kempsvllle Road and Princess Anne Road. o Although the City Attorney has advised me that I may participate in this transaction upon disclosure of my interest, I instead have chosen to abstain from participating in, and voting on, this transaction. 3224 BURNT MILL ROAD, VIRGINIA BEACH, VA 23452-5207 Mrs. Ruth Hodges Smith -2- August 26, 2003 Re: Disclosure Pursuant to the State and Local Government Conflict of Interests Act Accordingly, I respectfully request that you record this declaration ~n the official records of City Council. I have enclosed an opimon letter from City Attorney Leslie L. Lilley, which addresses thru matter. Thank you for your assistance and cooperation in this matter. Sincerely, Reba S. McClanan Councflmember RSM/RRI Enclosure City of Virginia Beach LESLIE L LILLEY CITY ATTORNEY MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH VA 23456-9004 (757) 427-4531 FAX (757) 426-5687 TDD (757) 427-4305 In Reply Please Refer to OP-826 August 26, 2003 Councilmember Reba S. McClanan Virginia Beach City Council Municipal Center Virginia Beach, VA 23456 Re: Request for Conflict of Interests Act Opinion Dear Councilmember McClanan: I am writing in response to your request for an opinion as to whether you are precluded from participating in City Council's discussion of, and votes on, a proposed amendment to the FY 2004 Capital Budget that would transfer administration of, and funding for, five roadway projects from the Virginia Department of Transportation to the City. SUMMARY CONCLUSION Based on my review of the State and Local Government Conflict of Interests Act and the facts provided by you, I am of the opinion that you have a personal interest in the proposed transaction. Nevertheless, as a member of a group, the members of which are affected by the transaction, you may participate in the discussion of, and vote on, the transaction, upon disclosure of your interest pursuant to Virginia Code § 2.2-3115(G). I base the aforesaid conclusion on the following facts which you have presented. Please review and verify the accuracy of the facts set forth herein as you may onlyrely upon this opinion Councflmember Reba S. McClanan -2- August 26, 2003 to the extent that those facts are complete and accurate. FACTS PRESENTED The state has appropriated funds for five roadwayprojects in the City of Virginia Beach. One of the five projects is the Princess Anne Rd./Kempsville Rd. Intersection Improvements project ("Princess Anne/Kempsville Intersection Project"). The City has the option of taking over the administration and management of the five projects fi.om the Virginia Department of Transportation ("VDOT"). Under that proposal, VDOT would reimburse the City for the City's expenses incurred in implementing the projects, and City Council would be required to amend the FY 2004 Capital Budget by adding supplemental appropriations for the projects. If City Council votes against the proposed transfer, then the projects will go forward under VDOT's administration. If City Council votes in favor of the transfer, then administrative responsibility will transfer to the City, and the City would have substantially more input into the way in which the projects are implemented. You and your husband have an ownership interest in Kempsville Professional Center, Inc. that exceeds three percent of the corporation's total equity. Kempsville Professional Center, Inc. is the owner of commercial property ("Professional Center property") located at 425 South Witchduck Road, which is near the intersection of Kempsville Road and Princess Anne Road. The Princess Anne/Kempsville Intersection Project will impact several properties in the City, including the Professional Center property. The degree of impact to the Professional Center property is not yet known, but access likely will be affected. ISSUE PRESENTED May you participate in City Council's discussion of, and votes on, the proposed amendment to the FY 2004 Capital Budget that would transfer administration of, and funding for, five roadway projects fi.om the Virginia Department of Transportation to the City? DISCUSSION/CONCLUSION The State and Local Government Conflict of Interests Act is set forth in § 2.2-3100 et seq. of the Code of Virginia (1950), as amended. The primary focus of the Act is on the "personal interests" of an officer or employee of state or local government in the transactions of, and contracts with, the governmental or advisory agency of which he or she is a member. You have a "personal interest''~ in Kempsville Professional Center, Inc. The Act provides ~"'Personal interest' means a financial benefit or liability accruing to an officer or employee or a member of his immediate family. Such interest shall exist by reason of 0) ownership in a business if the Councllmember Reba S. McClanan -3- August 26, 2003 that you would have a personal interest in a transaction2 ifa business in which you have an interest is (1) the subject of the transaction or (2) it is reasonably foreseeable that the company would receive a direct or indirect benefit or detriment as a result of the transaction. Kempsville Professional Center, Inc. is not the subject of the transaction. However, because one of the projects subject to the transfer and appropriations-the Princess Anne/Kempsville Intersection Project-will affect access to the Professional Center property, it is reasonably foreseeable that Kempsville Professional Center, Inc. would receive an indirect benefit or detriment as a result of the transaction. Therefore, you have a personal interest in the transaction. Nevertheless, because other property owners will also be affected by the Princess Anne/Kempsville Intersection Project, you are a member of a group of three or more members (property owners affected by the Princess Anne/Kempsville Intersection ProjecO, and the Act permits you to participate in the transaction, upon disclosure of your interest? As a final note, the Conflict of Interests Act deals with the types of influences upon a public officer's judgement which are clearly improper. The law does not, however, protect against all appearances of improper influence. In that respect, the Act places the burden on the individual officer to evaluate whether the facts presented create an appearance of impropriety which is unacceptable or which could affect the confidence of the public in the officer's ability to be impartial. ownership interest exceeds three percent of the total equity of the business; (iQ annual income that exceeds, or may reasonably be antimpated to exceed, $10,000 from ownership in real or personal property or a business; (ill) salary, other compensation, fnnge benefits, or benefits from the use of property or any combination thereof, paid or provided by a business that exceeds, or may reasonably be anticipated to exceed, $10,000 annually; 0v) ownership of real or personal property xf the tnterest exceeds $10,000 in value and excluding ownership in a business, income, or salary, other compensation, fnnge benefits or benefits from the use of property; or (v) personal hablllty incurred or assumed on behalf of a business ~f the habfilty exceeds three percent of the asset value of the business." Va. Code § 2.2-3101. 2 "'Personal interest in a transaction' means a personal ~nterest of an officer or employee xn any matter considered by h~s agency. Such personal interest exists when an officer or employee or a member of h~s immediate fannly has a personal interest m property or a business or governmental agency, or represents or prowdes services to any individual or bus~ness and such property, business, or represented or served indlwdual or business (1) is the subject of the transaction or (n) may realize a reasonably foreseeable direct or md~rect benefit or detriment as a result of the action of the agency considering the transaction." Va. Code § 2.2-3101. 3 "Each officer and employee of any state and local governmental or advisory agency who has a personal interest in a transactton... [m]ay participate ~n the transaction if he is a member of a business, profession, occupation, or group of three or more personas the members of wtuch are affected by the transaction, and he comphes with the declaration reqmrements of § 2.2-3114 F or § 2.2-3115 G." Va. Code § 2.2-3112(A)(2). Councllm~rnb~ Rcba S. McClanan August 26, 2003 Please contact me should you desire any additional information. LLL/RRI Very truly yours, City Attorney RESOLUTION FOR THE CITY OF VIRGINIA BEACH TO ADMINISTER IMPROVEMENTS TO PRINCESS ANNE ROAD, KEMPSVILLE ROAD, WITCHDUCK ROAD, AND INDIAN RIVER ROAD PHASE VII WHEREAS, the C~ty of V~rgInla Beach ("City") has requested that the V~rglma Department of Transportation ("VDOT") grant to the City admlmstratlve responsibility for design, property acqmsltlon, and construction of the Princess Anne Road / Kempsvflle Road Intersection Improvements (CIP 2-048), Wltchduck Road Phase I (CIP 2-931), Wltchduck Road Phase II (CIP 2-025), Elbow Road Extended-Phase II (CIP 2-152), and Indian River Road Phase VII (CIP 2-256) highway Improvement (the "ProJects"), and 10 WHEREAS, VDOT has agreed that admlmstratlve responslbfl~ty for design, property acquls~t~on, 11 and construction of the Projects will be transferred to the City, and 12 WHEREAS, the Council has previously requested that VDOT program these ProJects; and 13 WHEREAS, the Council has considered all such matters 14 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 15 BEACH, VIRGINIA: 16 1 17 18 19 20 21 The City hereby agrees to accept from VDOT the admlmstratlve responslblhty for design, property acquisition, and construction of the ProJects The City Manager is hereby authorized to execute, on behalf of the City, the "AGREEMENT FOR THE DEVELOPMENT AND ADMINISTRATION OF PRINCESS ANNE ROAD, WITCHDUCK ROAD, INDIAN RIVER ROAD, AND ELBOW ROAD BY THE CITY OF VIRGINIA BEACH." 22 23 Adopted by the Council of the City of Vlrglma Beach, Virginia, on the September ,2003. CA-8984 F qData~TY~OrdlnqXlONCODE\VDOT5res wpd R-1 - August 20, 2003 day of APPROVED AS TO CONTENT: Department of Pubhc Works APPROVED AS TO LEGAL SUFFICIENCY. ~lty Attorney's ~ce 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AN ORDINANCE TO APPROPRIATE $35,485,142 FROM THE VIRGINIA DEPARTMENT OF TRANSPORTATION TO FIVE ROADWAY CAPITAL PROJECTS FOR DESIGN WORK, SITE ACQUISITION AND CONSTRUCTION ACTIVITIES WHEREAS, the City of Virginia Beach Public Works Department will be administering five Virginia Department of Transportation capital projects, pursuant to a Project Administration Agreement with VDOT, and VDOT will reimburse the City in the amount of $35,485,142 for design site acquisition, construction, and related costs. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That $35,485,142 is hereby appropriated, in the amounts and to the projects as set forth below: a. $5,307,085 to capital project 92-152, Elbow Road Extended - Phase II (VDOT); b. $9,349,000 to capital project %2-256, Indian River Road - Phase VII (VDOT); c. $19,648,000 to capital project #2-048, Princess Anne Road/Kempsville Road Intersection Improve- ments, (VDOT); d. $467,057 to capital project #2-931, Witchduck Road - Phase I (VDOT) (Partial); and e. $714,000 to capital project 92-025, Witchduck Road - Phase II (VDOT) (Partial). 26 27 28 29 30 2. That the funding source for these appropriations is $35,485,142 in anticipated reimbursements from the Virginia Department of Transportation. 3. That estimated revenue from the Commonwealth of Virginia are hereby increased accordingly in the capital budget. 31 32 Adopted by the Council of the City of Virginia Beach, Virginia on the 9 day of Septem6e~003. CA8983 Ordin/Noncode/VDOT5ord.wpd R4 August 21 2003 Approved as to Content: M~~~~Departmen%~ of Public Wor/ks Approved as to Legal Sufficiency: City Attorney~' Offi~e AGREEMENT FOR THE DEVELOPMENT AND ADMINISTRATION OF PRINCESS ANNE ROAD, WITCHDUCK ROAD, INDIAN RIVER ROAD, AND ELBOW ROAD BY THE CITY OF VIRGINIA BEACH THIS AGREEMENT, made and executed in triplicate as of this day of ,200__, between the COMMONWEALTH OF VIRGINIA, DEPARTMENT OF TRANSPORTATION, hereinafter called the "Department" and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, hereinafter called the "City". WlINESSEIIt: WHEREAS, The Commonwealth Transportation Board has adopted a Six Year Improvement Program, which includes an allocation of funds for Princess Anne Road intersection improvement at Kempsville Road and Witchduck Road, UPC Number: 51866; Witchduck Road from Princess Anne to 1-264, UPC Number: 55200; Witchduck Road from 1-264 to Virginia Beach Boulevard, UPC Number: 55202; Indian River Road from Lynnhaven Road to Elbow Road Extension, UPC Number: 15829; Elbow Road from Indian River Road to 0.5 mile west of Princess Anne Road, UPC Number: 15828; and referred to hereinafter as the "Project"; and WHEREAS, the Depamnent and the City desire to construct the Project as expeditiously as possible and the City has requested to administer the proJects through its completion in accordance with all applicable federal, state and local laws, regulations and requirements; NOW, THEREFORE, for and in consideration of the premises and mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. The City shall act as the agent of the Department in performing the preliminary engineering, fight-of-way and construction phases of the Project, specifically including the following: a. Perform or contract with a consultant to perform the preliminary engineering, design and plan development necessary to award a contract for the construction; and the administration, supervision and inspection of the construction of the Project through final acceptance, in accordance with Department procedures and policies including settlement of any claims and disputes arising from the ProJect. The consultant, if utilized, will be subject to a pre-award audit by the Department. b. Produce the necessary documentation to coordinate the project through the State Enviromental Review Process, prepare the appropriate enviromental document (except for UPC Number: 15829 and 15828) as estabhshed by the Federal Highway Administration policies and procedures and carry out the functions necessary to clear the project environmentally as outlined in Appendix A of this agreement. c. Submit each phase of the work as identified in the A & E Agreement to the Department for review and comment as the project develops; and to allow Department personnel to inspect all phases of the project at all times. Annually (by December 10) the City will update all Engineering, Right-of Way, Utility and Construction costs and submit it to the Local Assistance Program Manager utilizing VDOT's CES (Cost Estimating System) or as otherwise directed by the Department. Additionally, project estimates shall be updated at project milestones as identified in the A & E Agreement. d. Prepare plans for the Project, including such items as general notes, references to specifications and standards, typical sections, drainage plans, erosion and sediment control methods, profiles, cross sections, summaries, and the like. Plans may be prepared in accordance with City standards and format, provided the standards meet or exceed Department standards or are approved by the Department. Any such Department approvals shall consider circumstances of constrained right-of-way, aesthetic and adjacent community needs, urban design factors and such approvals to not be unreasonable withheld. e. Locate potential contaminated and/or hazardous waste sites during the survey or early plan development stage. The City will develop design alternatives to address the sites. Once contamination is determined to exist, whether obvious or established through testing, the City shall notify the appropriate regulatory agency. The City will, if necessary, conduct detailed studies such as site characterization to determine the length of time required for clean-up and potential financial liability for the City if it is decided to purchase the property. The first option, however, is to pursue remediation by the property owner(s) through the appropriate agencies. f. Advertise and conduct all necessary public meetings and hearings on the Project in accordance with all applicable requirements and coordinate the Project with property owners in the Project area. g. Obtain any necessary permits for the Project. h. Prepare fight-of-way plans for the Project and acquire title to all right-of-way needed for the Project ~n the name of the City by purchase or by eminent domain, if necessary. i. Abide by Titles 25 and 33.1 of the 1950 Code of Virginia, as amended, in the acquisition of rights-of- way for this Project and follow the pohcy and procedures outlined in Section 702.02 of the Department's Right of Way Manual, which are incorporated by reference. j. Provide relocation assistance to those whose property is acquired for the Project in conformance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. (49 CFR Part 24) k. Maintain all appraisals, negotiation reports, relocation assistance files, closing statements, eminent domain records and the like for a period of three (3) years after completion of the Project. 1. Coordinate and authorize utility relocations. m. Procure a contractor to construct the Project, in conformance with applicable provisions of the Virginia Public Procurement Act. The City agrees to supply a cost justification if the low b~d exceeds the engineer's estimate by 7%. The City agrees not to award such contract until the Commonwealth Transportation Board has accepted and approved the bid and the contractor, and tmtfl a standard Municipal-State agreement is executed. The City agrees to bear at least two percent (2%) of the cost of the Project. Department's Utility Relocation Policies and Procedures Manual, which is incorporated by reference, will govern the rate of participation for utility relocations and storm sewers. n. Submit all change orders to the Department's Resident Engineer. Submit any change orders to the construction contract which cumulatively exceed 10% of the construction cost to the Department's Resident Engineer for approval. o. Maintain accurate records of the Project and documentation of all expenses for which reimbursement will be requested, and make such records available for inspection and/or audit by the Department at any time. p. Submit to the Department's Local Assistance Program Manager on a monthly basis a certification of all project expenses incurred and prod dunng the preceding month for all preliminary engineering. Submit to the Department's Resident Engineer on a monthly basis a certification of all project expenses incurred and paid during the proceeding month for all fight-of-way and construction. The final billing shall be made on the basis of final actual costs, reconciling any difference with previously billed amounts. Interim and final billings shall be submitted on the Department's Form FD-AP-01. All preliminary engineering charges by the Department shall cease on the date the contract is awarded. q. Agree to bear 100% of all costs expended in the event the project is terminated during any phase of work. 2. The Department will coordinate with, cooperate with, and assist the City in implementing the Project, and specifically agrees to: a. Review each phase of the Project and any other submittal or request, and respond within ten (10) business days after receipt or another mutually agreed upon timeframe. b. Provide the necessary coordination with the Federal Highway Administration and other appropnate Federal and State agencies; provide assistance and guidance to the City relative to environmental documentation and coordination as is outlined in Appendix A of this agreement. c. Provide reimbursement of actual Project expenditures for the previous month or for the final billing, within thirty (30) days of receiving from the City an acceptable invoice of the expenses. d. Audit all Project costs and records as may be reqmred or appropriate. e. Provide funding for the Project pursuant to the Department's Six-Year Improvement Program.. 3. Nothing herein shall be construed as creating any personal liability on the part of any officer, employee, or agent of the parties, nor shall it be construed as giving any fights or benefits to anyone other than the parties hereto. 4. This Agreement shall be binding upon the parties hereto, and their respective successors and assigns. 5. Upon the execution of this Agreement by both parties, the City is . hereby authorized to commence with the Project. This ~reement may be modified with the mutual consent of the Department and the City. The Department and the City agree that, if the City decides to receive funding directly on a quarterly basis, as provided by 33.1-23.3 of the Code of Virglma as amended by Chapter of the 2003 Acts of Assembly, this 0agreement will be subject to revisions at the request of either party. IN WITNESSETH WHEREOF, the parties sign and cause this Agreement to be executed on this day of ,200 ATTEST: CITY OF VIRGINIA BEACH City Clerk City of Virginia Beach City Manager City of Virginia Beach APPROVED AS TO FORM: City Attomey. City of Virginia Beac'Eh In WITNESS WHEREOF, THE PARTIES SIGN AND CAUSE THIS agreement to be executed on this day of ,200 Commonwealth Transportation Commissioner Commonwealth of Virginia Department of Transportation Date Signature of Witness Date 10 APPENDIX A LOCALLY ADMINISTERED PROJECTS General Environmental Conditions for all Agreements o . . . o Locality Will: Meet with VDOT Environmental Division personnel (and other agency personnel at the Division's discretion) prior to selection of a consultant or the commitment of any resources to scope the project, discuss the environmental clearances necessary and the procedure for submitting these environmental clearances to the Environmental Division in order to allow the project to proceed to construction. Provide qualified staff to manage the environmental process Provide VDOT Environmental Division an opportunity to review and comment on qualifications of consultants to perform the environmental studies. Provide VDOT Environmental Division an opportunity to review and comment on the scope of work for the study. Schedule meetings with VDOT Environmental Division at appropriate milestones in the study as identified during scoping to review study progress and adequacy. Provide all requests to VDOT Environmental Division for technical and coordination assistance from Locality staff and not from the Locality's consultant. Provide written certification to VDOT Environmental Division prior to project advertisement that all environmental approvals have been acqmred. Follow the outline of Environmental procedures as identified in Appendix B. Be o VDOT Environmental Will: Identify a representative for environmental decisions. Review and comment to the Locality on the environmental scope of work, including the level of effort and man-hours allotted for the study, if the Locality uses the services of a consultant. Review and comment to the Locality on the qualifications of consultants responsible for conducting environmental work. APPENDIX B LOCALLY ADMINISTERED PROJECTS: Environmental Procedures for PE, RIGHT-OF-WAY, AND CONSTRUCTION I. Preliminary Engineering Performed by Local Government A. Locality Will: 1. Prepare and submit an electronic copy of the completed Eady Notification form (EQ- 429) to begin the State Environmental Review Process (SERP) and any other necessary information to the VDOT Local Assistance Division regarding the scope of the proposed project. 2. Implement the SERP commitments pertaining to the development of the project. 3. Prepare and submit an electronic copy of the National Environmental Policy Act (NEPA) concurrence form to VDOT Environmental Division. 4. Prepare the NEPA document: a) Provide VDOT Environmental Division with a proposed project-specific public involvement plan prior to public involvement activities. This plan will demonstrate compliance with all items identified in The VDOT Location and Design Public Involvement Policy and Procedures Manual as required by environmental regulation. The public hearing notice will include all appropriate references to environmental notifications such as NEPA document availability, Section 106 compliance, and compliance with the Agricultural and Forestal District Act. b) Provide VDOT Environmental Division with an electronic preliminary review draft of the environmental document: Categorical Exclusion (CE), Draft Environmental Assessment (DEA), Draft Environmental Impact Statement (DEIS), Final EA, or Final ElS. c) Provide VDOT Environmental Division with a copy of all technical study documents that support the environmental document. d) Provide VDOT Environmental Division with a copy of the public hearing transcript and responses to comments with the review copy of the environmental document. e) Provide VDOT Environmental Division with the appropriate number of copies of the approved environmental document as identified during project scoping. f) Implement the NEPA commitments identified in the environmental document pertaining to the development of the project. 5. Secure all necessary water quality permits in the Iocality's name. a) Implement all water quality permit conditions 6. Provide a letter of certification to VDOT Environmental Division when the project is submitted for Plans, Specifications, and Estimates (PS&E) approval that ensures that the project description has not changed since completion of the SERP and approval of the environmental document; or if any changes have occurred, prepare a re-evaluation of the environmental document for VDOT Environmental Division consideration. 7. Prepare any post-NEPA documentation required by changes that occur during the development of the project. B. VDOT will: 1. VDOT District Environmental Manager will perform the administrative portion of the SERP. 2. VDOT District Environmental Manager will provide the results of the SERP to the VDOT Local Assistance Division, who will forward the results to the Locality. 3. VDOT Environmental Division will recommend a level of NEPA documentation to the lead Federal agency after review. 4. VDOT Environmental Division will confirm the level of NEPA document with the lead federal agency and solicit participation of that agency in the study. This will entail notifying the federal agency of the project development milestones and inviting the federal agency to attend key meetings. 5. VDOT Environmental Division will provide assistance to the Locality in the preparation of a NEPA document. 6. VDOT Environmental Division will coordinate with the lead federal agency to publish the notice of intent in the case of Environmental Impact Statements (ELS). 7. VDOT Environmental Division will review the following items to ensure compliance with applicable federal and state requirements: a) Approve the projects compliance with the Department's public involvement procedures as outlined in The VDO T Location and Design Public Involvement Policy and Procedures Manual as it relates to the environmental process. b) Review the preliminary environmental document, provide comments to the Locality, and, if appropriate, coordinate with the Federal Highway Administration (FHWA). c) Indicate state acceptance of the environmental document by signing and adopting the document as a VDOT product. d) Recommend lead federal agency approval of the environmental document. II. Right of Way Acquired by Local Government and retained by them A. Locality Will: 1. Perform necessary hazardous materials work. III. Construction Administered by Local Govemment A. Locality Will: 1. Implement SERP construction commitments. 2. Secure all necessary water quality permits in localities name. 3. Implement all water quality permit conditions 4. Provide erosion and sediment controls and storm water management as per VDOT standards and specifications. 5. Implement the NEPA commitments pertaining to the construction of the project. 6. Include in the contract documents and enforce all special provisions and specifications. LOCATION MAP FOR PRINCESS ANNE RD./KEMPSVILLE RD. INTERSE~CTION IMPROVEMENTS CIP BOYE1-FE DGN M J S PREPARED BY P,,W ENG CADD DEPT' JULY 2003 RO. ClP BOYE'Iq'E DGN M ] S LOCATION MAP FOR WITCHDUCK RD. PHASE ! CIP 2-931 N.T.S. '~--~G~I_(' ;~ I/H"_~ ~ /L~ ? PREPARED BY P/W ENG CADD DEPT JULY 2003 RD. / ? LOCATION MAP FOR , CIP 2-025 !1 P~.FPAREt3 L~~ P,~ ELBOW LOCATION MAP FOR '~ ROAD EXTENDED-PHASE II ~-_~ CIP 2-152 ~ N.T.S. LOCATION MAP INDIAN RIVER ROAD CIP 2-256 FOR PHASE Vii N.T.S. CIP BOYE'Fi'E DGN M J S PREPARED BY P/W ENG CADD DEPT JULY 2003 - 31 - Item V-J. 4. ORDINANCES/RESOLUTIONS ITEM # 51668 Upon motton by Vtce Mayor Jones, seconded by Councdman Wood, Ctty Councd ADOPTED Ordtnance to AUTHORIZE the acqutstaon of Agricultural Land Preservation (ARP) easement and the ISSUANCE by the City of tts contract obhgattons re maximum principal amount of $255,346 tn behalf of John G Jr and Edward F Cromwell Vottng 9-1 (By ConsenO Councd Members Voting Aye Harry E Dtezel, Margaret L Eure, Vice Mayor Louts R Jones, Rtchard A Maddox, Mayor Meyera E. Oberndorf, Jtm Reeve, Peter W Schmtdt, Ron A Vdlanueva, Rosemary Wdson and James L Wood Counctl Members Vottng Nay Reba S McClanan Counctl Members Absent None September 9, 2003 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRICULTURAL LAND PRESERVATION EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $255,346 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council a request for approval of an Installment Purchase Agreement (the form and standard provisions of which have been previously approved by the City Council, a summary of the material terms of which is hereto attached, and a true copy of which is on file in the City Attorney's Office) for the acquisition of the Development Rights (as defined in the Installment Purchase Agreement) on certain property located in the City and more fully described in Exhibit B of the Installment Purchase Agreement for a purchase price of $255,346; and WHEREAS, the aforesaid Development Rights shall be acquired through the acquisition of a perpetual agricultural land preservation easement, as defined in, and in compliance with, the requirements of the Ordinance; and WHEREAS, the City Council has reviewed the proposed terms and conditions of the purchase as evidenced by the Installment Purchase Agreement; 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 47 48 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. The City Council hereby determines and finds that 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, and the City Manager or his designee is hereby authorized to approve, upon or before the execution and delivery of the Installment Purchase Agreement, the rate of interest to accrue on the unpaid principal balance of the purchase price set forth hereinabove as the greater of 3.75% per annum or the per annum rate which is equal to the yield on United States Treasury STRIPS purchased by the City to fund such unpaid principal balance; provided, however, that such rate of interest shall not exceed 6.75% unless the approval of the City Council by resolution duly adopted is first obtained. 2. The City Council hereby further determines that funding is available for the acquisition of the Development Rights pursuant to the Installment Purchase Agreement on the terms and conditions set forth therein. 3. The City Council hereby expressly approves the Installment Purchase Agreement and, subject to the determination of the City Attorney that there are no defects 49 50 51 52 53 54 55 56 57 58 59 6O 61 62 63 64 65 66 67 in title to the property or other restrictions or encumbrances thereon which may, in the opinion of the City Attorney, adversely affect the City's interests, authorizes the City 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. 68 69 Adopted by the Council of the City of Virginia Beach, Virginia, on this 9 day of September , 2003. 70 71 Adoption requires an affirmative vote of a majority of all members of the City Council. CA8981 arppurchase/cromwelltrust/cromwelltrustord.wpd R-1 August 15, 2003 APPROVED AS TO CONTENT' APPROVED AS TO LEGAL SUFFICIENCY: ~ Law Department APPROVED AS TO AVAILABILITY OF FUNDS' AGRICULTURAL RESERVE PROGRAM INSTALLMENT PURCHASE AGREEMENT NO. 2003-60 SUMMARY OF MATERIAL TERMS SELLER: John G. Cromwell, Jr. and Edward F. Cromwell, Trustees of the John G. Cromwell, Sr. Trust PROPERTY LOCATION: 1865 Indian River Road PURCHASE PRICE: $255,346 EASEMENT AREA: 21.103 acres more or less DEVELOPMENT POTENTIAL: 3 single-famdy dwelling sxtes (3 acquired) DURATION: Perpetual INTEREST RATE: Equal to yield on U.S. Treasury STRIPS acquired by City to fund purchase price, but not less than 3.75% (actual rate to be determined when STRIPS are purchased prior to execution of IPA). Rate may not exceed 6.75% without approval of C~ty Council. TERMS: Interest only twice per year for 25 years, with payment ofprincipal due 25 years from IPA date RESTRICTIONS ON TRANSFER: IPA ownership may not be transferred (except for Estate Settlement Transfer) for one (1) year following execution and delivery of IPA. John G. Cromwell rustee Jr. Land of Promise Wlld#f. Item V-J.$. - 32- ORDINANCES/RES OL UTION ITEM # 51669 Barbara Messner, Post Office Box 514, Phone 422-1902, spoke tn OPPOSITION Upon motion by Vtce Mayor Jones, seconded by Councd Lady Wdson, Ctty Councd ADOPTED Or&nance to AUTHORIZE acqutsttton of property tn fee stmple and a temporary construction easement from the Marshall Trust for the Maxey Manor pump station stte at Phdhps Avenue and Lasktn Road by agreement (DISTRICT 5- L YNNHA VEN) Vottng 10-0 Councd Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wdson and James L Wood Councd Members Vottng Nay None Councd Members Absent Ron A Vdlanueva September 9, 2003 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 AN ORDINANCE TO AUTHORIZE ACQUISITION OF PROPERTY IN FEE SIMPLE AND A TEMPORARY CONSTRUCTION EASEMENT FOR THE MAXEY MANOR PUMP STATION SITE, EITHER BY AGREEMENT OR CONDEMNATION, FOR THE FOLLOWING SANITARY SEWER PROJECT, PUMP STATION #388 6-084 Maxey Manor Sanitary Sewer Improvements-51% Program WHEREAS, ~n the opimon of the Council of the C~ty of Vlrgima Beach, V~rg~nia, a public necessity exists for the construction of th~s ~mportant samtary sewer project to provide needed ~mprovements to the C~ty's samtary sewer system and for other pubhc purposes including the preservation of the safety, health, comfort, and convenience, and for the general welfare of the people in the City of Virgima Beach; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: Section 1. That the C~ty Council finds there ~s a public necessity for this sanitary sewer project, and authorizes the acqmsltlOn by agreement or condemnation, pursuant to Sections 15.2-1901, et seq., Code of Virg~ma of 1950, as amended, of all that certain real property ~n fee simple and all that certain temporary construction easement (collectively the "Property") as may be necessary to construct the project and as ~s shown on the plans for the project, and as ~s more specifically described on the acqms~tlon plat for the project, which ~s attached hereto and is recorded m the Office of the Clerk of the Circuit Court of V~rginia Beach as Instrument Number 200306170093452, (collectively the "Plans"), and the Plans are on file in the Engineenng Division, Department of Public Utihties, City of Vlrgima Beach, Virginia. Such acqulsit~on will be made only after compliance w~th Administrative Directive 3.14 for "Pubhc Input for Pubhc Infrastructure Projects Undertaken ~n the City." Section 2. That the City Manager is hereby authorized to make or cause to be made on behalf of the C~ty of V~rgima Beach, to the extent that funds are available, a reasonable offer to the owners or persons having an interest ~n the Property. If refused, the C~ty Attorney is hereby authorized to institute and prosecute proceedings to condemn the Property. Page 1 of 2 34 35 36 37 38 39 APPROVED AS TO CONTENTS 42 t/~/~ 43 SIGNATURE 44 45 46 47 48 49 5O 51 Adopted by the Council of the City of V~rginia Beach, Virginia, on the __ September ,2003 DEPARTMENT CA-8947 F :/D ataYATY/Ord~n/NONCODE/ca8947, ord. doc August 28, 2003 9 day of APPROVED AS TO LEGAL SUFFICIENCY AND FORM CItY A TORNEY Page 2 of 2 i - 33 - Item V-J. 6. ORDINANCES/RESOL UTION ITEM # 51670 Upon motton by Vtce Mayor Jones, seconded by Councdman Wood, City Council ADOPTED: Ordinance to ACCEPT and APPROPRIATE $28,041 from the Federal Emergency Management Agency (FEMA) to the Fire Department's FY2003- 04 operaang budget to support All - Hazards Emergency Operations and mcrease federal reserves accordmgly Vottng 10-0 (By ConsenO Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jim Reeve, Peter W Schmtdt, Rosemary Wdson and James L Wood Councd Members Vottng Nay None Councd Members Absent Ron A Vdlanueva September 9, 2003 AN ORDINANCE TO ACCEPT AND APPROPRIATE $28,041 FROM THE FEDERAL EMERGENCY MANAGEMENT AGENCY TO THE FIRE DEPARTMENT'S FY 2003-04 OPERATING BUDGET TO SUPPORT ALL-HAZARDS EMERGENCY OPERATIONS PLANNING 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 Virginia: 8 That $28,041 in grant funds is hereby accepted from the 9 Federal Emergency Management Agency and appropriated to the Fire 10 Department's FY 2003-04 Operating Budget to support all-hazards 11 emergency operations planning, with federal revenue increased 12 accordingly. 13 Adopted by the Council of the City of Virginia Beach, Virginia 14 on the 9 day of Sept. , 2003. CA-9003 Ordin/Noncode / FEMAgrant ord. wpd R-1 August 27, 2003 APPROVED AS TO CONTENT: ~anagement S~~ APPROVED AS TO LEGAL SUFFICIENCY: City Attor~f~y' s Office Item V-J. 7. - 34- ORDINANCES/RES OL UTION ITEM # 516 71 Barbara Messner, Post Office Box 514, Phone 422-1902, spoke tn OPPOSITION Upon motton by Vtce Mayor Jones, seconded by Counctlman Reeve, Ctty Counctl ADOPTED: Ordtnance to APPROPRIATE $52,339 from Oyster Herttage Trust and $15,000 from Wetlands /Dunes Restoration funds to the Department of Planntng re constructtng oyster reefs, tn the Lynnhaven River Watershed Voting 10-0 Counctl Members Voting Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Council Members Absent Ron A Vtllanueva September 9, 2003 10 AN ORDINANCE TO APPROPRIATE $52,339 FROM THE OYSTER HERITAGE TRUST FUND AND $15,000 FROM THE WETLANDS/DUNES RESTORATION FUND TO THE DEPARTMENT OF PLANNING'S FY 2003-04 OPERATING BUDGET TO CONSTRUCT OYSTER REEFS IN THE LYNNHAVEN RIVER WATERSHED NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE 11 CITY OF VIRGINIA BEACH, VIRGINIA: 12 1. That $52,339 of estimated revenue from 13 donations to the Oyster Heritage Trust Fund is hereby 14 appropriated to the Department of Planning FY 2003-04 15 Operating Budget. 16 2. That $15,000 of estimated revenue from civil 17 penalties in the Wetlands / Dunes Restoration Fund is hereby 18 appropriated to the Department of Planning FY 2003-04 19 Operating Budget. 20 3. That estimated revenue from donations and civil 21 penalties in the FY 2004 Operating Budget is hereby increased 22 by $67,339. 23 Adopted by the Council of the City of Virginia Beach, 24 Virginia, on the 9th day of September , 2003. CA-8991 Ordin/Noncode/oysterord.wpd R-2 - August 27, 2003 APPROVED AS TO CONTENT: Management Services APROVED AS TO LEGAL SUFFICIENCY: 'v'~-ity Atto~{ey' s - 35- Item V-K. PLANNING ITEM # $1672 1. a. JOHN M. STE WARD SUBDIVISION VARIANCE 1. b. H.A. V. INC. SUBDIVISION VARIANCE 2. VIRGINIA BEACH FREEWILL BAPTIST CHURCH CONDITIONAL USE PERMIT 3. AVALON HILLS BIBLE CHURCH CONDITIONAL USE PERMIT 4. KENNETH A. HALL FAMIL Y LTD PARTNERSHIP CHANGE OF ZONING CONDITIONAL USE PERMIT 5. afo/c CH & B ASSOCIATES, LLP CONDITIONAL CHANGE OF ZONING (Conditional A-12 and P-I) CONDITIONAL CHANGE OF ZONING (Conditional B-2) CONDITIONAL CHANGE OF ZONING (Conditional 0-2) 6. KEMPSHIRE ENTERPRISES, L.L.C. MODIFICATION TO PD-H1 LAND USE PLAN 7. CHESTER EHRENZELLER CHANGE OF ZONING 8. BERKSHIRE-HUDSON CAPITAL XI, LLC CONDITIONAL CHANGE OF ZONING 9. afo. CITY ZONING ORDINANCE 3~ 905 re sign regulations tn the B-3A Pembroke Central Bustness Core Dtstrtct 3~ 401 re farm stands as accessory uses tn the AG-1 and AG-2 Agrtcultural Zontng Dtstrtcts September 9, 2003 - 36- Item V-K. PLANNING ITEM # 51673 Upon motton by Vtce Mayor Jones, seconded by Counctlman Wood, City Counctl APPROVED IN ONE MOTION items lb, 2, 3, 4, 6, 7, 9a, 9b (DEFERRED) of the PLANNING BY CONSENT AGENDA Item K 9 b (Farm Stands) was DEFERRED INDEFINITEL Y, BY CONSENT. Voting 10-0 Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Rosemary Wilson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent Ron A Vtllanueva Counctl Lady McClanan voted a VERBAL NAY on Item K 9 a (CZO re stgn regulattons) September 9, 2003 -37- Item V-K. 1.a. PLANNING ITEM # 51674 The following registered tn SUPPORT: Attorney R E (Ed&e) Bourdon, Phone 499-8971, represented the apphcant, advtsed the apphcant ts rettred wtth a medical dtsabthty Mr Bourdon dtstrtbuted forty (40) letters of support from restdents of the area and tnformatton on stmtlar variances (two (2) homes on one (1) lo0 granted over the past twelve (12) years Satd tnformatton ts hereby made apart of the record The appltcant destres to dtvtde the parcel tn such a way as to put the extsttng single-family and the garage apartment on separate parcels A small addttton wtll be butlt on the house tn the rear John M Steward, Jr, 4464 Lee Avenue, Phone 460-1867, apphcant Martha Mclntosh, 4485 Lee Avenue, Phone 464-9288, adjacent resident Bruce Johnson, Chatrman- Chesapeake Beach Ctvtc League, Property Preservation Zontng Commtttee, 4654 Lookout Road, Phone 460-5447 Upon motion by Vtce Mayor Jones, seconded by Counctl Lady Wtlson, City Counctl APPROVED the apphcatton of JOHN M. STEWARD, JR.,for a Vartance to create a flag lot re ~4 4(b)of the Subchvtston Ordmance that all newly created lots meet all the requtrements of the Ctty Zoning Ordmance (CZO) Appeal to Dectstons of Admtmstrattve Officers tn regard to certain elements of the Subdtvtston Ordinance, Subdtvtston for John M Steward, Jr Property ts located at 4464 Lee Avenue (GPIN 1570702992) DISTRICT 4 - BA YSIDE The followtng condttton shall be requtred' 1 Structures on the lots are not to exceed two (2) stortes Vottng 10-0 Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Voting Nay None Counctl Members Absent Ron A Vtllanueva September 9, 2003 Item V-K. 1.b. - 38- PLANNING ITEM # 51675 Upon motton by Vtce Mayor Jones, seconded by Counctlman Wood, Ctty Counctl APPROVED the apphcatton of H. A. V., INC, for a Variance (to create two (2) lots) re ~4 4(b)of the Subdtvtston Ordmance that all newly created lots meet all the requtrements of the Ctty Zoning Ordinance (CZO) Appeal to Dectstons of Admtmstrattve Officers tn regard to certain elements of the Sub&vtston Ordinance, Sub&wston for John M Steward, Jr Property ts located at 4464 Lee Avenue (GPIN 1570702992) DISTRICT 4- BAYSIDE The followtng condtttons shah be requtred 1 A shared tngress/egressfor the stngleprtvate drive at Shoveller Avenue, to be uttltzed by both Lot A and Lot B, shah be deptcted on the final plat 2 The property shall be subchvtded only as deptcted on the submttted subchvtston plat Voting 10-0 (By Consen0 Counctl Members Vottng Aye. Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyers E Oberndorf Jim Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent Ron A Vtllanueva September 9, 2003 Item V-K. 2. - 39- PLANNING ITEM # 516 76 Upon moaon by Vtce Mayor Jones, seconded by Councdman Wood, Ctty Councd ADOPTED an Ordinance upon apphcatton of VIRGINIA BEACH FREEWILL BAPTIST CHURCH for a Condtttonal Use Permtt for a child care center: ORDINANCE UPON APPLICATION OF VIRGINIA BEACH FREEWILL BAPTIST CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHILD CARE CENTER R090331124 BE IT HEREBY ORDAINED B Y THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Apphcaaon of Vtrgmta Beach Freewdl Bapast Church for a Condtttonal Use Permtt for a chiM care center on property located at 210 South Wttchduck Road (GPIN 1467729262) DISTRICT 2 - KEMPSVILLE The followmg conchttons shall be requtred The chddcare and educatton center ts hmtted to an enrollment of 46 chddren This Or&nance shall be effecave tn accordance wtth Secaon 107 (f) of the Zomng Or&nance Adopted by the Councd of the Ctty of Vtrgtnta Beach, Vtrgtma, on the Nmth of September, Two Thousand Three Vottng 10-0 (By Consent) Councd Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wdson and James L Wood Councd Members Vottng Nay None Councd Members Absent Ron A Vdlanueva September 9, 2003 Item V-K. 3. PLANNING - 40 - ITEM # 51677 Upon motton by Vtce Mayor Jones, seconded by Councdman Wood, Ctty Councd ADOPTED Ordtnance upon apphcatton o fA VALONHILLS BIBLE CHURCH for a Con&ttonal Use Permit re church expanston ORDINANCE UPON APPLICATION OF AVALON HILLS BIBLE CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHURCH (EXPANSION) R090331125 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Or&nance upon Apphcatton of Avalon Hdls Bible Church for a Conchttonal Use Permit for a church (expanston) on property located at 5 728 In&an Rtver Road (GPINS 1456815314, 1456813402) DISTRICT 1 -CENTERVILLE The foHowtng condtttons shall be requtred The stte shah be developed tn substanttal conformance wtth the site plan entttled "AVALON HILLS BIBLE CHURCH, PRELIMINARY SITE PLAN," prepared by The Spectra Group, dated May 27, 2003, which has been exhtbtted to the Ctty Counctl and ts on file tn the Planning Department The proposed two (2) addtttons shall be constructed tn substantial conformance wtth the elevation entttled "FACILITY EXPANSION, "prepared by Andre Marquez Architects, dated July 2003, whtch has been exhtbtted to the Ctty Counctl and ts on file tn the Planmng Department The faqades of the two (2) addtttons shall match those of the extsttng structure tn terms of color and matertals, wtth the exceptton of the use of standing seam metal panels for the roof The metal roof may be utdtzed provided the color blends wtth the extsttng structure The Planmng Director shall make a final determtnatton of comphance of the destgn wtth this conchtton Category I landscaptng shall be tnstalled along the length of the eastern foundation (70 feeO Thts Ordinance shall be effecttve tn accordance with Sectton 107 (f) of the Zontng Ordtnance. Adopted by the Counctl of the Ctty of Virginia Beach, Vtrgtnta, on the Ntnth of September, Two Thousand Three September 9, 2003 - 41 - Item V-K. 3. PLANNING ITEM # 516 77 (Continued) Vottng 10-0 (By Consent) Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R ,Jones, Reba S McClanan, Richard A Maddox, Mayor Meyera E Oberndorf, dim Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Councd Members Absent Ron A Vdlanueva September 9, 2003 - 42 - Item V-K. 4. PLANNING ITEM ii 51678 Upon motion by Vtce Mayor Jones, seconded by Councilman Wood, City Counctl ADOPTED Or&nances upon apphcatton of KENNETH A. HALL FAMILY LTD. PARTNERSHIP for a Change of Zoning and Condtttonal Use Permit ORDINANCE UPON APPLICATION OF KENNETH A HALL FAMILY LTD PARTNERSHIP FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM I-1 LIGHT INDUSTRIAL DISTRICT TO B-2 Z09031154 BE IT HErB Y ORDAINED B Y THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Or&nance upon Apphcatton of Kenneth A Hall Famtly Ltd Partnershtp for a Change of Zontng Dtstrtct Classtficatton from I-1 Ltght Industrtal Dtstrtct to B-2 Commumty Bustness Dtstrtct on property located at 3757 Bonney Road (GPIN 1487432711, 1487432716, 1487434715, 1487434901, 1487434612, 1487434620, 1487434526) The Comprehenstve Plan recommends' use of this site for a vartety of employment uses tncludtng offices, approprtately located tndustrtal use, and support servtces DISTRICT 3 - ROSE HALL AND, ORDINANCE UPON APPLICA TION OF KENNETH A HALL FAMILY LTD PARTNERSHIP FOR A CONDITIONAL USE PERMIT FOR MOTOR VEHICLE SALES AND SER VICE R090331126 BE IT HEREBY ORDAINED B Y THE COUNCIL OF THE CITY OF VIRGINIA BEA CH, VIRGINIA Or&nance upon Apphcatton of Kenneth A Hall Famtly Ltd Partnershtp for a Con&ttonal Use Permtt for motor vehtcle sales and servtce at 3757 Bonney Road (GPIN 148 7434901, -4 715, -4612, -4620, -4526, - 19 75, -2800, - 7783, 1487531618, -0584, -0479, -2515) DISTRICT 3 - ROSE HALL The followtng con&tton shall be reqmred Thts Conchttonal Use Permtt supersedes the Condtttonal Use Permtts prevwusly approved for porttons of thts stte on August 11, 1986, October 13, 1986 and December 10, 2002 The development of the stte shall substantially conform ruth the stte plan entttled "Hall Properttes, Bonney Road, Vtrgmta Beach" dated May 30, 2003 exhtbtted to City Councd and on file tn the Planning Department The 3 7, 000 square foot butldtng shall be developed tn substanttal conformance wtth the rendertng entttled "Hall Ntssan, Front Elevatton- Bonney Road" and "Hall Nissan, Right &de Elevatton- Butternut Lane" dated May 30, 2003 as exhtbtted to Ctty Council and on file tn the Planmng Department September 9, 2003 - 43 - Item V-K. 4. PLANNING ITEM # 51678 (Continued) 10 11 A 50-foot reservatton shall be required along the southern property hne adjacent to 1-264 as necessary for tmprovements related to the Rosemont Road and 1-264 tnterchange All other butlchngs shown on the master plan shall be developed tn substanttal conformance wtth the archttectural style, colors and matertals used for the 37,000 square foot Hall Ntssan dealershtp butldtng referenced tn Condttton 2 above All tnternal lot hnes wtthtn the 14 6-acre site governed by thts Condttional Use Permtt shall be vacated by plat prtor to final stte plan approval of the first phase of constructton No outstde storage ofjunk or salvage vehtcles shall be permttted If vehtcles tn thts condttton requtre storage, then such vehtcles shall be stored wtthtn the butldtng All auto repatrs must take place tnstde the bml&ng No outstde storage of equtpment, parts or matertals shall be permitted All overhead doors located on the side of the afiertnarket buddtng factng 1-264 must rematn closed except for movtng vehtcles tnto and out of the butldtng for servtce Chain hnk fenctng shall not be allowed Any extsttng chain hnk fenctng on the stte shall be removed from the stte as each phase ts developed Any new fenctng tnstailed around the pertmeter of any parktng lot shall meet Category VI screemng requtrements (a sohd fence with Category I landscape plantings) There shall be no pennants, streamers, banners, balloons or searchhghts dtsplayed on the stte at any ttme Vehtcles shall not be parked so as to obstruct any entrance along Bonney Road, Chestnut Avenue, Butternut Lane and/or Spruce Street These Ordinances shall be effective tn accordance with Sectton 107 09 of the Zomng Ordtnance Adopted by the Council of the City of Vtrgtnta Beach, Vtrgtnta, on the Nmth of September, Two Thousand Three September 9, 2003 - 44 - Item V-K. 4. PLANNING ITEM # 516 78 (Continued) Vottng 10-0 (By Consent) Councd Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vice Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf Jtm Reeve, Peter }V Schmtdt, Rosemary Wtlson and James L Wood Council Members Voting Nay None Counctl Members Absent Ron A Vtllanueva September 9, 2003 - 4.5 - Item V-K. 5. PLANNING ITEM # 51679 Attorney R d Nutter, 222 Central Park Avenue, Phone 687- 7500, represented the apphcant Upon moaon by Councdman D~ezel, seconded by Councd Lady Wdson, C~ty Councd ADOPTED Ordtnances upon apphcaaons of CH & B ASSOCIATES, LLP for Condmonal Changes of Zomng D~strwt Classtficaaon ORDINANCE UPON APPLICATION OF CH & B ASSOCIATES, L L P FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM PD-H ] TO CONDITIONAL A- 12 Z0903 ! 155 BE IT HEREBY ORDAINED B Y THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Or&nance upon Apphcaaon of CH & B Assoctates, L L P for a Change of Zomng Dtstnct Classtficaaon from PD-H 1 Planned Development Houstng to Condtttonal A- 12 Apartment Dtstnct and Con&twnal P- 1 Preservaaon D~strwt wtth PD-H2 Overlays on the southeast corner of South Independence Boulevard and South Plaza Trad (GPIN 1476727504) The Comprehenstve Plan recommends use of thts stte as a Planned Commumty, constsang of a range of restdenttal, employment, commerctal, tnstttuaonal, cultural, educaaonal, open space and pubhc uses DISTRICT 2 - KEMPSVILLE The followtng condmon shall be required An Agreement encompasstngproffers shall be recorded wtth the Clerk of C~rcu~t Court ORDINANCE UPON APPLICATION OF CH & B ASSOCIATES, L L P FOR A CHANGE OF ZONING DISTRICT CLASSIFICATIONFROM PD-H ! AND R-7 5 RESIDENTIAL DISTRICT TO CONDITIONAL B-2 Z09031156 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Apphcatton of CH & B Associates, L L P for a Change of Zomng Dtstrict Classtficatton from PD-H 1 Planned Development Houstng Dtstrtct and R- 7 5 Restdenttal Dtstrwt to Con&ttonal B-2 Commumty Bustness Dtstrtct on the northwest corner of South Plaza Trad and Pnncess Anne Road (GPIN1476612829) The Comprehenstve Plan recommends use of th~s s~te as a Planned Commumty, conststtng of a range of restdenttal, employment, commerctal, tnsatuaonal, cultural, educattonal, open space and pubhc uses DISTRICT 2 - KEMPSVILLE The following condition shall be required An Agreement encompassmgproffers shall be recorded wtth the Clerk of Ctrcutt Court September 9, 2003 Item V-K. 5. - 46- PLANNING ITEM # 51679 (Continued) ORDINANCE UPON APPLICA TION OF CH & B ASSOCIATES, L L P FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM PD-H 1 TO CONDITIONAL 0-2 Z09031157 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Or&nance upon Apphcatton of CH & B Associates, L L P for a Change o_f Zonmg Dtstrtct Classtficatton from PD-H 1 Planned Development Houstng to Con&ttonal 0-2 Office Dtstrtct on the southwest corner of South Independence Boulevard and South Plaza Tratl (GPIN 1476731616) The Comprehenstve Plan recommends use of thts site as a Planned Commumty, conststmg of a range of restdenttal, employment, commerctal, tnstttuttonal, cultural, educational, open space and pubhc uses DISTRICT 2 - KEMPSVILLE The followtng condttton shall be requtred 1 An Agreement encompasstng proffers shall be recorded wtth the Clerk of Ctrcutt Court These Ordmances shall be effecttve tn accordance wtth Section 107 0') of the Zomng Ordmance Adopted by the Councd of the City of V~rgtnta Beach, Vtrgtnta, on the Ntnth of September, Two Thousand Three Vottng 10-0 Counctl Members Vottng Aye' Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jim Reeve, Peter W Schmtdt, Rosemary Wilson and James L Wood Counctl Members Voting Nay None Councd Members Absent Ron A Vtllanueva September 9, 2003 ,o~ OUR City o£ Virginia Beach In Reply Refer To Our File No. DF-5631 DATE: August 27, 2003 TO: Leslie L. Lilley DEPT: City Attorney . .---~ FROM: B. Kay Wilson ~.~,o DEPT: City Attorney Conditional Zoning Application CH&B Associates, L.L.P. (PD-H1 to A-12 With PD-H2 Overlay) The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 9, 2003. I have reviewed the subject proffer agreement, dated July 24, 2003, 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 Enclosure AGREEMENT THIS AGREEMENT, made this 24th day of July, 2003 by and between CH&B ASSOCIATES, L.L.P. a Virginia limited liability parmership, (hereinafter referred to as "Grantor"); and the CITY OF VIRGINIA BEACH, a municipal corporataon of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virgima, by petition addressed to the Grantee, so as to change the classification from PD-H1 (Condominiums, Single Family, Multi-Family and Office), to A-12 with a PD-H2 Overlay (79.64 acres) and P-1 with a PD-H2 Overlay (14.55 acres) on certain property owned by Grantor which contains a total of 94.19 acres, more or less, located in the Kempsville Election District of the City of Virginia Beach, Varginia, which property is more particularly described in the attached Exhibit A (hereinafter the "Property"); and WHEREAS, the Grantee' s policy as to provide only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other land development legislation; and WHEREAS, the Grantors acknowledge that the competing and sometimes incompatable uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to recognize the effects of the change and the need for various types of uses, certain reasonable conchtions govermng the use of the Property for the protection of the community that are not generally applicable to land similarly zoned A-12 and P-1 with a PD-H2 Overlay are needed to cope with the situation to whach the Grantors' rezoning application gives rise; and WHEREAS, the Grantors have voluntarily proffered in writing an advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the GPIN- 1476-72-7504 Prepared By: Troutman Sanders L.L.P. 222 Central Park Avenue, State 2000 Vtrgima Beach, VA 23462 Zomng Map, in addition to the regulations provided for in the existing A-12 and P-1 zoning district with a PD-H2 Overlay by the existing City's Zoning Ordinance (CZO), 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 new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are 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 subject Property at the time of recordation of such instrument; provided, further, that said instrument ~s consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent; and WHEREAS, certain covenants and restrictions governing the Property were adopted by the City Council of the City of Virginia Beach on June 23, 1998, as part of the Amendment to the Land Use Plan for the Brenneman Farm Planned Unit Development; and WHEREAS, the Amendment to the Land Use Plan for the Brenneman Farm Planned Unit Development (the "Brenneman Farm Amendment") adopted on June 23, 1998 contained restrictions governing the development of the Brenneman Farm property on both the west and east sides of South Plaza Trail; and WHEREAS, Grantor desires to change the conditions affecting the Property as adopted by the Brenneman Farm Amendment, without affecting or altering those conditions contained in the Brenneman Farm Amendment relating to the properties identified as "PD-H1 Office 13 AC" and "Catholic High School 15 AC" on the exhibit entitled "Proposed Land Use Plan," dated June 2, 1998, prepared by Kimley-Horn and Associates, Inc., which plan has been exhibited to City Council, and was adopted as part of the Brenneman Farm Amendment; NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees, 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 of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these Proffers shall constatute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. The Land Use Plan of Brenneman Farm, referenced above, shall be revised and adopted as shown on the exhibit entitled "Proposed Zoning Plan," dated July 18, 2003, as contained in the four part, multi-page document entitled Brenneman Farm Development Manual dated July 18, 2003, which publication has been exhibited to City Council and is on file in the Planning Department of the City of Virgima Beach (hereinafter the "Manual"). 2. Prior to the issuance of any final occupancy penmt on any residential units on the Property, Grantor shall substantially complete and bond roadway improvements to South Plaza Trail providing for two adchtional full vehicular traffic lanes (one in each direction) for traffic between South Independence Boulevard and Brenneman Trail. 3. The perimeter and interior landscaping, fencing and signage on all portions of the property adjacent to public rights-of-way shall be developed and constructed substantially as depicted in Section 4 of the Manual. 4. The areas of the Property depicted as lakes, buffer areas, open space and recreational areas as shown on the "Conceptual Development Plan" in the Manual shall be used for those designated purposes. LUXURY MULTI-FAMILY 5. The area identified on the "Proposed Zoning Plan" as proposed "PD-H2 Luxury Multa-Family 20.0_+ AC" as contained ~n the Manual shall be developed as multi-family units and the total number of dwelling units shall not exceed 304 units. 6. The multi-family units, clubhouse and garage units constructed within the aforesaid area shall be constructed in a manner substantially as depicted in Section 3 of the Manual. 7. No structure located within the area defined as "Luxury Multi-Family" as shown on the Conceptual Development Plan within the Manual shall exceed four-stories or 60' in height. With the exception of Buildings 8 and 9, the structures located within 100' of a public right-of-way shall not exceed 45' in height and no fencing adjacent to a public fight-of way shall exceed 5' in height (with the exception of any fencing around tennis courts which height shall not exceed 12'). Building 8 shall be set back a minimum of 45' from the nearest adjacent public fight-of way, and Building 9 shall be set back a minimum of 65' from the nearest adjacent public fight-of-way. Except as set forth herein, this portion of the Property shall be developed in accordance with the design criteria set forth in Sections 602, 603, 605 and 606 of the Virginia Beach Zoning Ordinance in effect on this date. LUXURY CONDOMINIUMS 8. The areas identified as Parcels A, B and C on the Conceptual Development Plan within the Manual, shall be developed substantially as depicted on the Conceptual Development Plan. 9. The architecture, building materials and external features of the condominium units constructed on Parcels A, B and C of the Property shall be substantially as depicted by the elevations contained in Section 2 of the Manual. 10. The number of units constructed on Parcels A, B and C of the Property shall not exceed four hundred eighteen (418). 11. A 25 foot wide restoration area along South Plaza Trail, adjacent to Condominium Parcel A, shall be installed as indicated in Section 4 of the Manual. After initial clearing of the site, the applicant shall contact the Planning Department to schedule a review of existing vegetation within the restoration area. During this review, it will be determined where additional plantings shall occur to provide a Category W-type screen within the restoration area. A "Restoration Plan" shall then be submitted to the Planning Department, prepared by a certified landscape professional, that will provide a survey of ex~sting trees to remain by species and caliper as well as a depiction of proposed shrubs and trees identified by species, height and caliper at time of planting. The proposed vegetation shall be a mix of evergreen and deciduous species. The trees shall be installed with a minimum caliper of I ½ inches at the time of planting and spacing appropriate for the species. The Restoration Plan shall be approved by the Planning Department prior to issuance of a Certificate of Occupancy for any of the units within Parcels A, B and C. 12. Except as provided below, Parcels A, B and C of the Property shall be developed in accordance with the criteria set forth in Section 603, 605 and 606 of the Virginia Beach Zomng Ordinance in effect on the date this application is approved. 13. Site Data and Development Criteria Site Area, Use and maximum allowable units: · Parcel A 13.8 Acres · Parcel B 29.97 Acres · Parcel C 17.8 Acres 125 2-Story Townhomes 165 3-Story Townhomes 128 3-Story Carriage Homes · Total 61.57 Acres 418 Total Units REQUIRED BUILDING SETBACKS CARRIAGE HOMES Front yard setback - from face of curb/private street · Side yard setback adjacent to a private street from face of curb · Side yard setback from exterior property line · Minimum distance between buildings side to side · Rear yard setback from exterior property line or private street · Minimum distance between buildings rear to rear · Lot coverage building footprint · Maximum building height 20' 10' 10' 12' 10' 20' 45% 40' 2 AND 3 STORY TOWNHOMES · Front yard setback - from face of curb/private street · Side yard setback adjacent to a private street from face of curb · Side yard setback from exterior property line · Minimum distance between buildings side to side · Rear yard setback from exterior property line or private street · Minimum distance between buildings rear to rear · Lot coverage building footprint · Maximum building height 20' 10' 10' 15' 10' 20' 40% 35' (two story unit) I 40' (three story umt) PARKING REQUIREMENTS A minimum of 2 off street parlang spaces shall be provided for each unit. Garage parking shall be utilized to meet parking requirements PRIVATE STREET / LANE WIDTH CRITERIA Private Street Width Private Alley Width 26' Face of Curb to Face of Curb 12' Edge of Asphalt to Edge of Asphalt DESIGN CRITERIA · Maximum number of units attached per building shall be 6 · Units shall be constructed on raised slab with brick skirt on front elevation Windows shall be provided in all garage doors As a minimum, beaded vinyl siding will be provided on all units All fencing provided on lots backing up to the lakes shall be 4' open picket constructed of white vinyl The following shall be allowed a 2' encroachment into required setbacks: Fireplaces Bay windows Steps Decks which do not exceed 18" in height (excluding railings) Patios HVAC equipment 14. The Grantors shall record a Master Deed of Covenants, Conditions and Restrictions ("Restrictions") governing the Property. The Restrictions shall be enforced by a Mandatory Property Owners Association which will be responsible for maintmning all common areas including, all landscape buffers including all fencing, and all lakes and BMP's located on the Property. 15. Further conditions may be required by the Grantee during detailed Site Plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virglnia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Admimstrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the goveming body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, ~ncluding mandatory or prohibitory ~njunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Admimstrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the govermng body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and ~ndexed in the name of the Grantors and Grantee. [Remainder of Page Intentionally Left Blank] [Signature Page of Lawrence Fleder, Agent for Trustee of the Fleder Family Trust 1976] CH&B Associates, L L P Lawrence Fleder, Agent for Trustee of The Fleder Family Trust 1976 COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit The foregoing instrument was acknowledged before me this ~2~ day of July, 2003, by Lawrence Fleder Agent for Trustee of The Fleder Family Trust 1976, on behalf of CH&B Assomates, L L P He is personally known to me My Commission Expires Notary Public [Signature Page of James M. Caplan, Agent for Trustee of the Caplan Family Trust 1976] CH&B Associates, L.L.P. COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this ~ $ ~ day of July, 2003, by James M. Caplan, Agent for Trustee of The Caplan Family Trust 1976, on behalf of CH&B Associates, L.L.P. He is personally known to me. My Comm,~ssion Expires: /o~} ' ~/ t7 Notary Public 1619774 10 EXHIBIT A A! J. THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, identified as "Now or Formerly CH&B Associates (D.B. 1626, P. 12) (M.B. 44, P.11), GPIN # 1476-72-7504" as shown on that certain "PLAT SHOI¥ING DRAINAGE AND IMPOUNDMENT EASEMENTS (LAKE #8) DEDICATED TO THE CITY OF VIRGINIA BEACH, VIRGINIA FROM CH&B ASSOCIATES (M.B. 285, P.39) (M.B. 287, P.6), VIRGINIA BEACH, VIRGINIA," dated February 11, 2002, and revised March 19, 2002 and prepared by Rouse-Sirine Associates, Ltd., which plat was recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia on May 1, 2002 in Map Book 305, at Page 41. 11 FO~M NO P .5 1E~ City of Virginia Beach I IqTER-OFF I CE COREESPO~IgEIqCE In Reply Refer To Our File No. DF-5632 DATE: August 27, 2003 TO: Leslie L. Lilley DEPT: City Attorney FROM: B. Kay Wilson~~ DEPT: City Attorney Conditional Zoning Application CH&B Associates, L.L.P. (PD-H1 and R-7.5 to B-2) The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 9, 2003. I have reviewed the subject proffer agreement, dated July 24, 2003, 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 Enclosure AGREEMENT THIS AGREEMENT, made this 24th day of July, 2003 by and between CH&B ASSOCIATES, L.L.P. a Virginia limited liability partnership, (hereinafter referred to as "Grantor"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification from PD-H1 (Commercial), PD-H1 (Single Family) and R-7.5 to B-2 Conditional on certain property owned by Grantor which contains a total of 27.6 acres, more or less, located in the Kempsville Election District of the City of Virginia Beach, Virginia, which property is more particularly described in the attached Exhibit A (hereinafter the "Property"); and WitEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other land development legislation; and WHEREAS, the Grantors acknowledge that the competing and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to reeo~m~ize the effects of the 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 B-2 and are needed to cope with the situation to which the Grantors' rezoning application gives rise; and WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing B-2 zoning district by the existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the GPIN: 1476-61-2829 Ttns Document Prepared By: Troutman Sanders LLP 222 Central Park Avenue, State 2000 Virginia Beach, VA 23462 physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zomng ordinance, unless, notwithstanding the foregoing, these conditions are 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 subject Property at the time of recordation of such ~nstmment; provided, further, that said instrument ~s consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees, 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 of quid pro quo for zomng, 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 these Proffers shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors ~n interest or title, namely: 1. The Property shall not be developed until an apphcation has been submitted for approval and acted upon by City Council in a timely manner with respect to a conceptual site plan addressing the design elements relating to the site, buildings, parking areas, landscaping and pedestrian and vehicular access. interested parties. Nothing contained herein shall restrict the appeal rights of 2. The Grantors have prepared and submitted a Traffic Impact Study ("TIS") of August 2002 and further amended by an addendum of July 24, 2003, analyzing the impact of this and the accompanying applications for the Brenneman Farm. The TIS prepared by Kimley-Horn and Associates, is on file in the Planning and Public Works Department of the City of Virginia Beach. Prior to the issuance of any occupancy pernuts for any uses on the Property zoned B-2, Grantor shall have completed or bonded the improvements to the intersection of South Plaza Trail and Princess Anne Road recommended in the TIS. 3. Further conditions may be required by the Grantee during detailed Site Plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virlonia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Adrmnistrator of the City of Virginia Beach, Virginia shall be vested w~th all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, stat or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) ff aggrieved by any decision of the Zoning Adnumstrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map show by an appropriate symbol on the map the existence of conchtions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made reachly available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded ~n the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantors and Grantee. [Remainder of Page Intentionally Left Blank] [Signature Page of Lawrence Fleder, Agent for Trustee oft. he Fleder Family Trust 1976] CH&B Associates, L L P By ~A (SEAL) - Lawrence Fleder, Agent for Trustee of The Fleder Family Trust 1976 COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit- The foregoing instrument was acknowledged before me this~t4 day of July, 2003, by Lawrence Fleder Agent for Trustee of The Fleder Family Trust 1976, on behalf of CH&B Associates, L L P He is personally known to me My Commission Expires Notary Public [Signature Page of James M. Caplan, Agent for Trustee of the Caplan Family Trust 1976] CH&B Associates, L.L.P. ~2~es M. Caplan, A--g; r~r Trustee of The Caplan Farmly Trust 1976 COMMONWEALTH OF VIRG~ CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this ~ ~ day of July, 2003, by James M. Caplan, Agent for Trustee of The Caplan Family Trust 1976, on behalf of CH&B Associates, L.L.P. He is personally known to me. a (/ Notary Public My Commission Expires: / ~ ] 3 ] Jo3 161960 5 EXHIBIT A A!.I~ THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, approximately 27.62 acres, and identified as Parcel 1 as shown on that certain "RESUBDIVISION PLAT OF PORTION OF PROPERTY OF CH&B ASSOCIATES KNOWN AS BRENNEMAN FARM, PHASE 1, VIRGINIA BEACH, VIRGINIA", dated July 28, 1999 and prepared by Rouse-Sinne Associates, Ltd., which plat was recorded in the Clerk's Office of the Circmt Court of the City of Virgima Beach, Virginia on September 13, 1999 ~n Map Book 280, at Page 47-49. FOrM City of Virginia Beach In Reply Refer To Our File No. DF-5633 DATE: August 27, 2003 TO: Leslie L. Lilley DEPT: City Attorney FROM: B. Kay Wilson qBq~ DEPT: City Attorney Conditional Zoning Application CH&B Associates, L.L.P. (PD-H1 to 0-2) The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 9, 2003. I have reviewed the subject proffer agreement, dated July 24, 2003, 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 Enclosure AGREEMENT THIS AGREEMENT, made th~s 24th day of July, 2003 by and between CH&B ASSOCIATES, L.L.P. a Virginia limited liability partnership, (hereinafter referred to as "Grantor"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the C~ty of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification from PD-H1 (Condominiums, Office and Retirement), to 0-2 Conditional on certain property owned by Grantor which contmns a total of 39.7 acres, more or less, located in the Kempsville Election District of the City of Virginia Beach, Virginia, which property is more particularly described in the attached Exhibit A (hereinafter the "Property"); and WHEREAS, the Grantee's policy is to prowde only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other land development legislation; and WHEREAS, the Grantors acknowledge that the compeung and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to recognize the effects of the change and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the commumty that are not generally applicable to land similarly zoned 0-2 and are needed to cope with the situation to which the Grantors' rezoning applicataon gives rise; and WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zomng Map, in addition to the regulations provided for in the existing 0-2 zoning district by the ex~sting City's Zoning Ordinance (CZO), the following reasonable conditions related to the GPIN: 1476-73-1616 This Document Prepared By. Troutman Sanders ~ 222 Central Park Avenue, State 2000 V~rgmia Beach, VA 23462 physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zomng ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circmt Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolutaon shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees, 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 of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these Proffers shall constitute covenants running w~th the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors in ~nterest or title, namely: 1. A twenty-five (25) foot wide tree preservation area shall be provided along those portions of the Property adjacent to the residentially zoned property to the north of the Property. 2. No portion of any building located on the Property within one hundred (100) feet of the northern property line adjacent to the residentially zoned property shall exceed thirty-five (35) feet in height. 3. The primary exterior building materials utilized on any building constructed on the Property shall be limited to: glass, brick, stone, metal, pre-cast concrete, or any combination of the aforementioned materials. 4. A landscape buffer, twenty five (25) feet (or greater) in width shall be constructed along those portions of the perimeter of the Property (excluding roads and access points) adjacent to Independence Boulevard and South Plaza Trail, which buffer may contain a berm not exceeding a slope of 4H: 1V. 5. The Grantors have prepared and submitted a Traffic Impact Study ("TIS") of August 2002, and further amended by an addendum of July 24, 2003, analyzing the impact of this and the accompanying application for the Brenneman Farm. The TIS prepared by Kimley-Horn and Associates is on file in the Planning and Public Works Departments of the City of Virginia Beach. Prior to the issuance of any occupancy permits for office space in excess of 225,000 square feet on the Property, zoned 0-2, the Grantors shall have completed or bonded the improvements to the intersection of South Plaza Trml and S. Independence Boulevard recommended in the TIS as amended. 6. Further conditions may be required by the Grantee during detailed Site Plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Orchnance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, ~ncluding (i) the ordering in writing of the remedying of any noncompliance with such conchtions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantors and Grantee. [Remainder of Page Intentionally Left Blank] [Signature Page of James M. Caplan, Agent for Trustee of the Caplan Family Trust 1976] CH&B Associates, L.L.P. COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this o~ ~ day of July, 2003, by James M. Caplan, Agent for Trustee of The Caplan Family Trust 1976, on behalf of CH&B Associates, L.L.P. He is personally known to me. My Commission Expires: ]~/,~//0~ Notary Public 161670 4 [Signature Page of Lawrence Fleder, Agent for Trustee of the Fleder Family Trust 1976] CH&B Associates, L L P ~avT, r~ Fleder, Agent f~r Trustee of The Fleder Family Trust 1976 COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit- The foregoing instrument was acknowledged before me thisbe4 day of July, 2003, by Lawrence Fleder Agent for Trustee of The Fleder Family Trust 1976, on behalf of CH&B Associates, L L P He is personally known to me My Commission Expires ,¢[i3~iD~ Notary Public EXHIBIT A A1JJ THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virgiriia Beach, Virginia, approximately 39.7 acres, and identified as Parcel 3 as shown on that certain "RESUBDIVISION PLAT OF PORTION OF PROPERTY OF CH&B ASSOCIATES KNOWN AS BRENNEMAN FARM, PHASE 1, VIRGINIA BEACH, VIRGINIA", dated July 28, 1999 and prepared by Rouse-Sinne Associates, Ltd., which plat was recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, V~rginia on September 13, 1999 in Map Book 280, at Page 47-49. -47- Item V-K. 6. PLANNING ITEM # 51680 Upon motton by Vtce Mayor Jones, seconded by Councdman Wood, City Councd MODIFIED apphcatton of KEMPSHIRE ENTERPRISES, L.L.C. re the Ttmberlake PD-H1 Land Use Plan Ordinance upon Apphcatton of Kempshtre Enterprtses, L L C for a Modt_ficatton to the Ttmberlake PD-H1 Land Use Plan for property located on the southeast corner of South Independence Boulevard and Sdverleaf Drtve (GAIN 1476776371, 1476779197) DISTRICT 2 - KEMPSVILLE The followmg condttton shall be required 1 Agreement encompasstng proffers shall be recorded wtth the Clerk of the Ctrcutt Court and ts hereby made a part of the record Votmg 10-0 (By ConsenO Councd Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vice Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf dtm Reeve, Peter W Schmtdt, Rosemary Wdson and James L Wood Council Members Vottng Nay None Councd Members Absent Ron A Vdlanueva September 9, 2003 F'OF~M NO P S ! ~3 City o£ Virginia Beach INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-5752 DATE: August 27, 2003 TO: Leslie L. Lilley DEPT: City Attorney FROM: B. Kay Wilson~''v DEPT: City Attorney Conditional Zoning Application Kempshire Enterprises, L.L.C. and The Commonwealth of Virginia The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 9, 2003. I have reviewed the subject proffer agreement, dated May 24, 2003, 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 Enclosure PREPARED BY ~1~1 SYKES t~OL,q~DON. g~ll]~ AIIERN & LEVY. PC KEMPSHIRE ENTERPRISES, L.L.C., a Virginia limited liability company THE COMMONWEALTH OF VIRGINIA TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CIT4f OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made tbas 24m day of May, 2003, by and between KEMPSHIRE ENTERPRISES, L.L.C., ("Kempshire') a Virginia limited liability company, Grantor, party of the first part; THE COMMONWEALTH OF VIRGINIA ("Commonwealth"), party of the second part, Grantor which joins in this agreement solely to show the Commonwealth consents to the proffers by Kempshire but the Commonwealth does not guarantee or warrant performance of any proffer by Kempshire; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the third part. WITNESSETH: WHEREAS, the party of the second part is the owner of a two (2) parcels of property located in the Kempsville District of the City of Virginia Beach, containing approximately 1.75 acres of land which are more particularly described as parcels 1 and 2 in Exhibit ''A' attached hereto and incorporated herein by this reference. Said parcels are herein referred to as the "Property"; and WHEREAS, the party of the first part is the contract purchaser of the parcels described in Exhibit "A' and has initiated a conchtional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to modify the PD-H1 Land Use Plan with a B-2 Commercial Designation applicable to the Property; 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, Kempshire acknowledges that the competing and sometimes incompatxble uses conflict and that in order to permit differing uses on and in the GPIN: 1476-77-6371 1476-77-9197 (Part) PREPARED BY §Ykq~S [~0Lq~DON AtlI~N & LEVY. PC 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 smailarly zoned are needed to cope w/th the situation to whxch Kempshrre's rezoning application gives rise; and WHEREAS, Kempshire has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed modification to the PD-H 1 Land Use Plan applicable to the Property in addition to the regulations provided for the PD-H1 and B-2 Zoning Districts by the cresting 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, Kempshire, for itself, its successors, personal representatives, assigns, grantee, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or fluid pro, quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following declaxation of conditions and restrictions which shall restrict and govern the plrtysical development, operation, and use of the Property and hereby covenants and agrees 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 Kempshire, its successors, personal representatives, assigns, grantee, and other successors in interest or title: 1. When the Property is developed, in order to achieve a coordinated design and development on the site in terms of vehicular circulation, parking, landscape buffering and building orientation, the "LAYOUT AND LANDSCAPE PLAN of Self Serve and Automated Car Wash, S. Independence Boulevard & Silverleat Drive, VirgLrLia Beach, Virginia," dated May 15, 2003, prepared by Land Design and Development, Inc., which has been exhibited to the Virginia Beach City Council and is on fde w/th the VLrgima Beach Department of Planning ("Layout Plan") shall be: substantially adhered to PREPARED BY ~Ii] 5¥~[5. t~Ot~DON ~11 AtlEt~N & LEvY. pC 2. When the Property is developed, the architectural design and building materials and colors of the Car Wash building will be substantially as depicted on the exhibit entitled "SECTION/ELEVATION SELF SERVE ga AUTOMATED CAR WASH SOUTH INDEPENDENCE & SILVERLEAF DRIVE," prepared by Porterfield Design Center dated May 20, 2003, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Rendering"). 3. When the Property is developed, the car wash shall have a monument style freestanding sign no greater than ten feet (10] m height with a base of split face block matching that on the building. The freestanding sign shall be substantially as depicted on the exhibit entitled "Freedom Wash Freestanding Sign" dated May 20, 2003, which has been exhibited to the Virginia Beach City Council and is on file with the Virgirna Beach Department of Planning ("Sign Elevation"). Building mounted signage complying with the requirements of all applicable City Ordinances will be located on that section of building designated "Mech. Room" on the Layout Plan which is closest to Silverleaf Drive. 4. When the Property is developed, all lighting on the site shall be consistent with those standards recommended by the Illumination Engineering Society of North America (IESNA). A photometric lighting plan indicating the number and types of lighting will be submitted as part of the formal site plan submission for review by the Planning Department to determine consistency with Crime Prevention Through Environmental Design (CPTED) principles and practices. Lighting shall be installed and operated as shown on the approved plan. Ail lighting shall be directed reward and downward within the site. 5. Further conditions may be reqmred 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 Kempshire 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 comprehenmve implementation of a new or 3 PREPARED BY §YI(E$. t~OUI~DON ~'~1'1~ AJtERN & LEVY PC 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 Vi~_ginia 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 provimons 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. Kempshire covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (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, Kempshire 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 emstence of conditions attaching to the zoning of the Property, and the ordhuances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of VLrginia Beach, Virginia, and indexed in the name of Kempshire and the Grantee. PREPARED BY SY[.[$. t~OLT~DON. AtlERN & ]..EVY pc WITNESS the following signature and seal: GRANTOR: Kempshire Enterprise, L.L.C., a Virginia limited Liability company By: (SEAL) Chris T. Giroux, Managing Member STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 27th day of May, 2003, by Chris T. Giroux, Managing Member, Kempshire Enterprises, L.L.C., a Virginia limited liability company. Notary Public My Commission Expires: August 31, 2006 PREPARED BY S-TE[$, t~OURDON. ~lJl AtI~RN & LEVY. pC WITNESS the following signature and seal: GRANTOR: The Commonwealth of Virginia Title: District Right of Way & Utilities Manager /E OF V~RGINIA COUNTY OF Suffolk ,to-wit: The foregoing instrument was acknowledged before me this 28th day of May, 2003, by Oliver Warren Williams ,Dist. R/W & Util. Mqr.of The Commonwealth of Virgir~a. Nc~ary Public My Commission Expires: March 31, 2005 PREPARED BY SYKES I~OU~DON 'HtL~N & k~WY PC ~r,.ltlBIT "An PARCEL ONE: Ail that certain lot, piece or parcel of land, w~th any improvements thereon and the appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and known, numbered and designated as "Parcel 49,000 H-4", as shown on that certain plat entitled, "AMENDED PLAT RESUBDIVISION OF PARCEL 1, TIMBERLAKE SHOPPING CENTER AND PARCEL 49,000 H-1-A AND PARCEL 49,000 H-2', which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virgirna, in Map Book 242, at Page 36. GPIN: 1476-77-6371 PARCEL TWO: A portion of that certain lot, piece or parcel of land, with any improvements thereon, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as "PARCEL 49,000 H-I-A-l", as shown on that certain plat entitled, "AMENDED PLAT RESUBDIVISION OF PARCEL 1, TIMBERLAKE SHOPPING CENTER AND PARCEL 49,000 H-1-A AND PARCEL 49,000 H-2", which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 242, at Page 36. GPIN: 1476-77-9197 CONDP, EZ~NE / KEIVI]~HIRE / PROFFER - 48 - Item V-K. 7. PLANNING ITEM # 51681 Upon motton by Vtce Mayor Jones, seconded by Councilman Wood, Ctty Counctl ADOPTED Ordtnance upon apphcatton of CHESTER EHRENZELLAR for a Change of Zomng Dtstrtct Classtficatton ORDINANCE UPON APPLICATION OF CHESTER EHRENZELLAR FOR A CHANGE OF ZONING DISTRICT CLASSIFICA TION FR OM PD-H1 TO R-5D Z09031158 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINA Ordtnance upon apphcatton of Chester Ehrenzellar for a Change of Zomng Dtstrtct Classtficatton from PD-H1 Planned Unit Development Dtstrtct to R-5D Restdenttal Duplex Dtstrtct on property located at 1961 Mtll Creek Drtve (GPIN 1475908717) DISTRICT 7 - PRINCESS ANNE Thts Ordtnance shall be effecttve tn accordance wtth Sectton 107 09 of the Zomng Ordtnance Adopted by the Council of the City of Vtrgtnta Beach, Vtrgmta, on the Nmth of September, Two Thousand Three Voting 10-0 (By ConsenO Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wilson and James L Wood Council Members Voting Nay None Council Members Absent Ron A Vtllanueva September 9, 2003 - 49- Item V-K. 8. PLANNING ITEM # 51682 Attorney R d Nutter, 222 Central Park Avenue, Phone' 687-7500, represented the apphcant who wtll construct An Eckerd Drug Store at this location and referenced the loss of the masstve old tree Upon motton by Counctl Lady Eure, seconded by Councdman Wood, Ctty Counctl ADOPTED the Ordtnance upon Apphcatton of BERKSHIRE-HUDSON CAPITAL XI, LLC for a Change o_f Zontng Dtstrtct Classtficatton ORDINANCE UPONAPPLICA TION OF BERKSHIRE-HUDSON CAPITAL XI, LL C FOR A CHANGE OF ZONING DISTRICT CLA SSIFICA TION FR OM 0-2 AND R-SD TO CONDITIONAL B-2 Z09031159 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CI~ OF VIRGINIA BEACH, VIRGINIA Or&nance upon Apphcatton of Berkshtre-Hudson Capital XI, LLC for a Change of Zomng District Classification from 0-2 Office District and R-5D Restdenttal Duplex Dtstrtct to Condtttonal B-2 Communtty Business Dtstrtct on the northeast corner of Salem Road and South Independence Boulevard (GPIN 1475934018) The Comprehenstve Plan recommends use of the 0-2 zoned portton of the stte for retatl, servtce, office and other compattble uses servtng surroundtng netghborhoods and communtttes The Comprehenstve Plan recommends use of the R-SD zonedportton of the stte for restdenttal uses above 3 5 dwelhng umts per acre DISTRICT 1 - CENTER VILLE The followtng conchtton shall be requtred An Agreement encompasstngproffers shall be recorded wtth the Clerk of Ctrcutt Court Attorney Nutter agreed to the followtng condtttons under stte plan revtew The proffer relattve fenctng shall be deleted (as requested by restdent June Huston) The stgns shown on the proffered elevattons would not be allowed as they exceed the sign hmttattons of the City Zomng Ordtnance The tssues of balloons and streamers wtll also be addressed Thts Or&nance shall be effective tn accordance wtth Sectton 107 09 of the Zomng Ordtnance Adopted by the Counctl of the Ctty of Vtrgmta Beach, Vtrgtnta, on the Nmth of September, Two Thousand Three September 9, 2003 - 50 - Item V-K. 8. PLANNING ITEM # 51682 (Continued) Voting 8-1 Counctl Members Vottng Aye Harry E. Dtezel, Margaret L Eure, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf Jtm Reeve, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay Peter W Schmtdt Councd Members Absent Vtce Mayor Louts R Jones and Ron A Vtllanueva Vtce Mayor Jones DISCLOSED and ABSTAINED pursuant to Sectton 2 2-3115(E), Code of Vtrgtnta, re Ctty Counctl's dtscusston and vote of the apphcatton submitted by Berkshtre-Hudson Capttal XI, LLC (Berkshire-Hudson) for property located at the northeast corner of Salem Road and Independence Boulevard The nature of hts personal tnterest ts that he has an ownershtp interest tn Holloman-Brown Funeral Home, Inc, whtch exceeds three percent of tts total equtty Holloman-Brown has entered mto a contract with Berkshtre-Hudson to sell a 4 964 acre parcel of property located at the mtersectton of Independence Boulevard and Salem Road Berkshire-Hudson has apphed for a change tn zontng whtch, tf approved, wouM allow constructton of a drug store on thts property Because the contract for the sale of the property ts conttngent upon thts change tn zomng, tt ts reasonably foreseeable that Holloman-Brown couM reahze a benefit or detrtment as a result of thts transactton Vtce Mayor Jones letter of September 9, 2003, ts hereby made a part of the record (However, Vtce Mayor Jones was Absent for the Vote) September 9, 2003 City of Virginia Beach LESLIE L LILLEY CITY ATTORNEY September 9, 2003 MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456-9004 (757) 427-4531 FAX (757) 426-5687 TDD (757) 427-4305 Mrs Ruth Hodges Smith, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs Smith Re Abstention Pursuant to Section 2 2-3115(E), Code of Virginia Pursuant to the Virginia Conflict of Interests Act, Section 2 2-3115(E), Code of Virginia, I make the following declaration I am executing this written disclosure regarding City Council's discussion and vote on the application submitted by Berkshire-Hudson Capital XI, LLC (Berkshire- Hudson"), for a change of zoning district classification from Conditional O-2 Office District and R-5D Residential District to Conditional B-2 Business District for property located at the northeast corner of Salem Road and Independence Boulevard (GPIN 14759340180000) The nature of my personal interest is that I have an ownership interest in Holloman- Brown Funeral Home, Inc. ("Holloman-Brown") which exceeds three percent of its total equity Holloman-Brown has entered into a contract with Berkshire-Hudson to sell a 4 964 acre parcel of property located at the intersection of Independence Boulevard and Salem Road Berkshire-Hudson has applied for a change in zoning, which if approved, would allow it to construct a drug store on the property Because the contract for the sale of the property is contingent upon this change in zoning, it is reasonably foreseeable that Holloman-Brown would realize a benefit or detriment as a result of this transaction, and thus I have a personal interest in this transaction 3 I wish to disclose this interest and abstain from voting on this matter Mrs Ruth Hodges Smith -2- September 9, 2003 Re Abstention Pursuant to Section 2 2-3115(E), Code of Virginia Accordingly, I respectfully request that you record this declaration in the official records of City Council I have enclosed an opinion letter from the City Attorney's Office, which addresses this same matter. Thank you for your assistance in this matter Sincerely, LRJ/RRI Enclosure City of Virginia Beach LESLIE L LILLEY CITY ATI'ORNEY MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH VA 23456-9004 (757) 427-4531 FAX (757) 426-5687 TDD (757) 427-4305 In Reply Please Refer to OP-827 September 9, 2003 Vice-Mayor Louis R. Jones Virginia Beach City Council Municipal Center Virginia Beach, VA 23456 Re: Request for Conflict of Interests Act Opinion Dear Vice-Mayor Jones: I am writing in response to your request for an opimon as to whether you are precluded from participating in City Council's discussion of, and vote on, Berkshire-Hudson Capital XI, L.L.C.'s application for a change of zoning. SUMMARY CONCLUSION Based on my review of the State and Local Govemmem Conflict of Interests Act and the facts provided by you, I am of the opinion that you have a personal interest in the transaction ~nvolving Berkshire-Hudson Capital XI, L.L.C.'s application for a change of zoning. Therefore, the Act precludes you from participating in City Council's discussion of, and vote on, this transaction. I base the aforesaid conclusion on the following facts which you have presented. Please rewew and verify the accuracy of the facts set forth herein as you may only rely upon this opinion to the extent that those facts are complete and accurate. Vine-Mayor Jones -2- September 9, 2003 FACTS PRESENTED In 1982, as part of an open space requirement for the approval of a subdivision, 1.373 acres at the intersection of Independence Boulevard and Salem Road were dedicated to the C~ty. Fifteen years later, on September 2, 1997, City Council declared that property to be excess and authorized the City Manager to dispose of it. Staffhad recommended that action because the property's size, location, and configuration rendered it unsuitable for neighborhood park development. The C~ty then sold the property to Holloman-Brown Ftmeral Home, Inc. ("Holloman-Brown"), which owns two larger lots that are adjacent to the property sold by the City. You are the owner and president of Holloman-Brown. You did not partmipate as a Councilmember ~n Holloman-Brown's purchase of the property. Berkshire-Hudson Capital XI, LLC ("Berkshire-Hudson") has entered into a contract with Holloman-Brown to purchase a 4.964 acre parcel of property at the intersection of Independence Boulevard and Salem Road. This parcel ~ncludes the 1.373 acres of property that Holloman-Brown purchased from the City, as well as the two larger lots that are owned by Holloman-Brown. Berkshire-Hudson has apphed for a change in zoning which, if approved, would penmt it to construct an Eckerd Drug Store on the property. In furtherance or,ts application, Berkshire-Hudson has submitted a proffer agreement whereby Berkshire-Hudson promises to take certain actions with respect to the property. Holloman-Brown is a party to that agreement because it is currently the owner of the property. Berkshire-Hudson's purchase contract with Holloman-Brown is contingent upon approval of the requested change in zoning. ISSUE PRESENTED May you participate in City Council's discussion of, and vote on, Berkshire-Hudson Capital XI, L.L.C.'s application for a change of zoning? DISCUSSION/CONCLUSION The State and Local Govemment Conflict of Interests Act is set forth in § 2.2-3100 et seq. of the Code of Virginia (1950), as amended. The primary focus of the Act is on the personal interests of an officer or employee of state or local government in the transactions of, and contracts w~th, the governmental or advisory agency of which he or she is a member. Vine-Mayor Jones -3- September 9, 2003 Based on the definitions set forth in the Act, you have a "personal interest''l ~n Holloman- Brown by virtue of your ownership interest which exceeds three percent of its total equity. The critical xnquiry, therefore, is whether, because of your personal interest in Holloman-Brown, you have a "personal interest in a transaction"2 with respect to Berkshire-Hudson's apphcat~on for a change ~n zoning. Holloman-Brown is not the subject of the transaction. Therefore, the pertinent inquiry in the "personal interest in a transaction" analysis is whether, as a result of this transaction, Holloman- Brown may realize a direct or indirect benefit or detriment as a result of City Council' s consideration of the zoning application. Because Berkshire-Hudson's contract to purchase the property from Holloman-Brown is contingent upon approval of the requested change ~n zoning, st is reasonably foreseeable that Holloman-Brown would realize a benefit or detriment as a result of this transaction. Therefore, you have a personal interest in the transaction, and you must abstain from Council's discussion of, and vote on, the application? ~ "'Personal ~nterest' means a finanmal benefit or habfl~ty accrmng to an officer or employee or a member of his ~mmed~ate family Such ~nterest shall ex~st by reason of 0) ownership in a bus~ness ~f the ownership interest exceeds three percent of the total eqmty of the business, (n) annual income that exceeds, or may reasonably be anticipated to exceed, $10,000 from ownership in real or personal property or a business; (m) salary, other compensation, fnnge benefits, or benefits from the use of property or any combination thereof, paid or provided by a bus~ness or governmental agency that exceeds, or may reasonably be anticipated to exceed, $10,000 annually; 0v) ownership of real or personal property if the anterest exceeds $10,000 in value and excluding ownership in a business, income, or salary, other compensation, fnnge benefits or benefits from the use of property; (v) personal hablhty incurred or assumed on behalf of a business if the habfllty exceeds three percent of the asset value of the business, or (vi) an option for ownership of a bus~ness or real or personal property if the ownership ~nterest will consist of 0) or (iv) above." Va Code § 2 2-3101 2 "'Personal ~nterest in a transaction' means a personal interest of an officer or employee in any matter considered by his agency. Such personal ~nterest exists when an officer or employee or a member of his ~mme&ate family has a personal interest ~n property or a business or a governmental agency, or represents or promdes services to any ~ndlvldual or bus~ness and such property, business, or represented or served ~n&wdual or bus~ness 0) ~s the subject of the transaction or (n) may reahze a reasonably foreseeable d~rect or indirect benefit or detriment as a result of the action of the agency consldenng the transaction "Va Code § 2.2-3101 3 "Each officer and employee of any state or local government or admsory agency who has a personal interest in a transaction shall d~squahfy h~mself from participating in the transaction ~f(0 the transaction has application solely to property or a business or governmental agency ~n which he has a personal ~nterest or a business that has a parent-subsidiary or affiliated business entity relationship w~th the business ~n which he has a personal interest or (n) he is unable to partm~pate pursuant to subdivision 2, 3 or 4 "Va. Code § 2.2- 3112(A). Vice-Mayor Jones -4- September 9, 2003 The Conflict of Interests Act also addresses an officer's "personal interest in a contract.''4 Proffers are voluntary.5 Proffered conditions are not contractual terms; rather, they are conditions ofrezomng in the nature of a legislative action.6 Therefore, a proffer is not a "contract,"7 as that term is used in the Act, and the Act's provisions regarding a "personal interest ~n a contract" would not apply to proffers. As a final note, the Conflict of Interests Act deals with the types of influences upon a public officer's judgement which are clearly improper. The law does not, however, protect against all appearances of improper influence. In that respect, the Act places the burden on the individual officer to evaluate whether the facts presented create an appearance of ~mpropnety which is unacceptable or which could affect the confidence of the public ~n the officer's ability to be impartial. Please contact me should you destre any additional ~nformation. Very truly yours, C~ty Attorney LLL/RRI 4 "'Personal Interest in a contract' means a personal ~nterest that an office or employee has in a contact w~th a governmental agency, whether dues to h~s being a party to the contract or due to a personal interest in a business that is a party to the contract." Va. Code § 2 2-3101. s "A zoning ordinance may include a provide for the voluntary proffenng in writing, by the owner, of reasonable conditions, prior to a public heanng before the governing body, in addition to the regulations provided for the zoning d~stnct or zone by ordinance, as a part of a rezomng or amendment to a zoning map ..." Va. Code § 15 2-3397 6 Gregory v. Board of Supervisors of Chesterfield City, 257 Va 530 (1999). 7 "'Contract' means any agreement to which a governmental agency is a party, or any agreement on behalf of a governmental agency that Involves the payment of money appropriated by the General Assembly or pohtlcal subdivision, whether or not such agreement is executed in the name of the Commonwealth, or some pohtlcal subdlwslon thereof." Va. Code § 2.2-3101. FORM NO P S lIB City of Virginia Beach In Reply Refer To Our File No. DF-5709 DATE: TO: FROM: Leslie L. Lilley B. Kay Wilson~-'~-'~ August 27, 2003 DEPT: City Attorney Conditional Zoning Application Berkshire-Hudson Capital XI, LLC DEPT: City Attomey The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 9, 2003. I have reviewed the subject proffer agreement, dated July 28, 2003, 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 BKW Enclosure Document Prepared By: Troutman Sanders LLP 222 Central Park Avenue Suite 2000 Virginia Beach, Virginia 23462 (757) 687- 7700 AGREEMENT TIHS AGREEMENT, made this 28th day of July, 2003 by and between BERKSHIRE- HUDSON CAPITAL XI, LLC, a North Carolina limited liability company (hereinafter referred to as "Grantor"), the contract purchaser of a certain parcel of property generally located on the south comer of South Independence Boulevard and Salem Road ~n Virginia Beach, Virginia, which property is more fully described on Exhibit A attached hereto (hereinafter the "Property"); HOLLOMAN BROWN FUNERAL HOME, INC., a Virginia corporation (hereinafter referred to as "Grantor"), the current owner of the Property; and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virgima, by petition addressed to the Grantee, so as to change the classification from 0-2 and R-5D to B-2 Conditional on certain property which contains approximately 4.96 acres, more or less, located in the Centerville Election District of the City of Virginia Beach, Virginia, which property is more particularly described in the attached Exhibit A; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed use 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 difefing uses on and in the area of the subject Property GPIN NO.:1475-93-4018-0000 and at the same time to recognize the effects of the 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 B-2 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 part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing B-2 zoning district by the existing City's Zoning Ordinance (CZO), 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 new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, smd conditions having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are 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 subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantor, for ~tself, it's successors, assigns, grantees, 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 of quid pro quo for 2 zoning, rezoning, site plan, building perrmt or subdivision approval, hereby make the following declaration of condiuons and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these proffers (collectively, the "Proffers") shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, it's heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. The Property shall be developed for a drag store/retail facility, together with one additional structure to be utilized as commercial and/or professional offices. 2. The site layout shall be developed substantially as shown on that certain exhibit entitled "Eckerd Salem Road & S. Independence Blvd, Virginia Beach, Virginia" prepared by /DH Capital and dated 7/28/03, which has been exhibited to City Council and is on file with the Planning Department. 3. The architectural design of the drug store on the Property shall be substantially compatible with the architectural style and materials reflected in the renderings set forth in the exhibits entitled "Proposed Eckerd Drag Retail Facility, Salem Road and South Independence Boulevard, Virginia Beach, Virginia" which have been exhibited to City Council and are on file with the Planning Department. 4. The architectural materials and style of the structure located adjacent to the drag store shall be substantially compatible with the architectural style and materials utilized for the drag store facility. 5. A left turn only median break shall be permitted on Salem Road subject to final design approval by the Department of Public Works. 6. Subject to approval by the Virginia Beach Board of Zoning Appeals, a fence, not to exceed six feet in height, shall be provided on the Property adjacent to the pomon of the eastern property line of the Property located behind the structure idenufied on the Site Plan as "10,800 SF Retail", commencing in the northeastemmost comer of the Property and proceeding in a southerly direction approximately two hundred and seventy feet (270'). Further conditions mandated by applicable development ordinances may be required by the Grantee during detailed Site Plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantor covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virgima Beach, Virginia and ~ndexed ~n the name of the Grantor and Grantee. GRANTOR: BERKSHIRE-HUDSON CAPITAL XI, LLC STATE OF NORTH CAROLINA CITY OF CHARLOTTE, to-wit: My Commission Expires' The foregoing instrumem was ac 'knowledged before me this ~43 day of July, 2003, by ~0~ ;4 ~'a.~..., /.. , Member of Berkshire-Hudson Capital XI, LLC He/she is po/i'tonally known ~'o meo Notary Public lo-/6'- ~5- GRANTOR: HOLLOMAN BROWN FUNERAL HOME, INC. Louis R. Jon~s, President STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this oF.q. day of July, 2003, by Louis R. Jones, President of Holloman Brown Funeral Home, Inc. He/she is personally known to me. My Commission Expires: Notary Public~ NF168202 3 EXI-HBIT A Legal Description All that certain piece, parcel or lot of land located in the City of Virginia Beach, Virginia consisting of 4.964 acres and described as Parcel B-IA1 on that certain resubdivision plat entitled "RESUBDMSION OF 1.373 ACRES AS SHOWN ON PLAT ENTITI.F.D "PLAT SHOWING PROPERTY I-IEREBY DEDICATED TO THE CITY OF VIRGINIA BEACH, VA. FROM FENTRESS WOOD ASSOCIATES, LTD." (M.B. 170, P. 22) PARCEL B-IA AS SHOWN ON PLAT ENTITLED "RESUBDMSION OF PARCEL B-1 AND PARCEL B-2 AS SHOWN ON RESUBDMSION OF PARCEL B-1 AND PARCI~7I~ B-2 AS SHOWN ON SUBDMSION OF PARCF;I~ B AS SHOWN ON SURVEY OF PROPERTY OF MATTIE S. FENTRESS" (M.B. 214, P. 64) AND PROPERTY OF HOI~I.OMAN-BROWN FUNERAL HOME, INC. (D.B. 3519, P. 1070) VIRGINIA BEACH, VIRGINIA", dated March 30, 1998, prepared by John E. Sirine and Associates, Ltd. and recorded in the Clerk's Office of the Circuit Court of Virginia Beach, Virginia on April 9, 1999 in Map Book 276, at page 3. - 51 - Item V-K. 9. a. PLANNING ITEM # 51683 Upon motton by Vice Mayor Jones, seconded by Counctlman Wood, Ctty Counctl ADOPTED: Ordmance to AMEND of the Ctty Zontng Ordtnance (CZO) re 3~ 905 re sign regulations tn the B-3A Pembroke Central Bustness Core Dtstrtct Vottng 9-1 (By ConsenO Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Rtchard A Maddox, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Rosemary Wilson and James L Wood Counctl Members Vottng Nay Reba S McClanan Council Members Absent Ron A Vtllanueva September 9, 2003 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AN ORDINANCE TO AMEND SECTION 905 OF THE CITY ZONING ORDINANCE PERTAINING TO SIGN REGULATIONS IN THE B-3A PEMBROKE CENTRAL BUSINESS CORE DISTRICT SECTION AMENDED: CZO ~ 905 WHEREAS, the public necessity, convenience, general welfare and good zoning practice so require; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 905 of the City Zoning Ordinance is hereby amended and reordained, to read as follows: Sec. 905. Sign regulations. (d) Within the B-3A Pembroke Central Business Core District, signs shall be permitted as follows: (1) For each foot of occupancy frontage an establishment shall have no more than sixty one-hundredths (.60) square feet of sign area. No single establishment shall have more than four (4) signs, nor more than two (2) signs per building facade, and no individual sign shall exceed sixty (60) square feet in surface area. Any establish- ment havinq less than forty (40) feet of occupancy frontaqe may have one (1) siqn not exceedinq twenty four (24) square feet. No such sign shall be allowed above the second story of any building. 28 29 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 9th day of September, 2003. CA-8959 DATA/ORDIN/PROPOSED/czo0905ord.wpd R2 July 18, 2003 - 52 - Item V-K. 9. b. PLANNING ITEM # 51684 Upon motton by Vtce Mayor Jones, seconded by Counctlman Wood, Ctty Counctl DEFERRED INDEFINITEL Y: Ordmance to AMEND the Ctty Zontng Or&nance (CZO) 3~ 401 re farm stands as accessory uses tn the AG-1 and AG-2 Agrtcultural Zontng Dtstrtcts Vottng 10-0 (By ConsenO Counctl Members Voting Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, Richard A Maddox, Mayor Meyera E Oberndorf dtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Voting Nay None Counctl Members Absent Ron A Vtllanueva September 9, 2003 - 53 - Item V-L. 1. APPOINTMENTS ITEM # 51685 BY CONSENSUS, City Counctl RESCHEDULED the following APPOINTMENTS: A GRICUL TURAL AD VISOR Y COMMISSION MINORITY BUSINESS CO UNCIL PARKS AND RECREATION COMMISSION TIDEWATER REGIONAL GROUP HOME COMMISSION WETLANDS BOARD September 9, 2003 Item V-L.2. - 54 - APPOINTMENTS ITEM # 51686 Upon NOMINATION by Vtce Mayor Jones, Ctty Counctl APPOINTED: PERFORMING AR TS THEATRE AD VISOR Y COMMITTEE Beatrtz Amberman Ltnwood 0 Branch, III Helen Dragas Thomas Felton Sharon Fratm Ken Geroe Rose Htpol Elhot Jones Mtcheal Ktrkland Davtd Kukel Chrtstopher J Massaro Delceno C Mtles Helen Prett Adam Rttt Gtnny Sanctho Martlyn Stmon Eleanor Stanton Jack Todd Dorothy Wood Wendy Young Robert Barnaby Nancy Creech Doug Elhs Thomas Frantz Terry Gallagher Wtlham W Harrtson, Jr Glen Huff Brtan Kerwtn Lewts Cameron Kttchtn John R Langlots, Jr Jeff Meredtth John Mortson M Jean Rawls Thomas A Rucker Patrtck L Shuler Tunt Stngh John Ttlthou George Wong W Breck Wood Voting 9-0 Counctl Members Vottng Aye Harry E Dtezel, Margaret L Eure, Vtce Mayor Louts R Jones, Reba S McClanan, , Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent Richard A Maddox and Ron A Vtllanueva September 9, 2003 - 55 - Item V-M. 1. ADD/ON ITEM # 5168 7 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council SCHEDULED RECONSIDERA TION for October 28, 2003, at 6pm, FORT WORTH DEVELOPMENT, INC CONDITIONAL USE PERMIT for a Condomtntum on Shore Drtve at Dmwtd&e Road/Dupont Ctrcle (Approved by Ctty Counctl 08/12/2003) Vottng 9-0 Counctl Members Vottng Aye Harry E Dtezel, Vtce Mayor Louts R Jones, Reba S McClanan, Rtchard A Maddox, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent Margaret L Eure and Ron A Vtllanueva September 9, 2003 - 56- Item V-O. ADJOURNMENT ITEM # 51688 Mayor Meyera E Oberndorf DECLARED the Ctty Counctl Meettng ADJOURNED at 7 19 P M Beverly ~ Hooks, CMC Chwf Deputy Ctty Clerk Ctty Clerk Meyera E Oberndorf Mayor Ctty of Vtrgtnia Beach Vtrgtnta ~eptember 9~ 2003 - 56- Item V-O. ADJOURNMENT ITEM#51688 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 7:19 P.M Beverly U Hooks, CMC Chief Deputy City Clerk . , _. / e. atatday 'uth Hodges Smith, MMC Meyera E berndorf City Clerk Mayor City of Virginia Beach Virginia September 9, 2003