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HomeMy WebLinkAboutAPRIL 12, 2005 AGENDACITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At -Large VICE MAYOR LOUIS R JONES, Bayside - District 4 HARRY E. DIEZEL Kempsville - District 2 ROBERT M. DYER, Centerville - District 1 REBA S. McCLANAN, Rose Hall - District 3 RICHARD A. MADDOX,, Beach - District 6 JIM REEVE, Princess Anne - District 7 PETER W. SCHMIDT, At -Large RONA. VILLANUEVA, At -Large ROSEMARY WILSON, At -Large JAMES L. WOOD, Lynnhaven -District 5 CITY MANAGER - JAMES K. SPORE CITYATTORNEY- LESUEL. LILLEY CITY CLERK - RUTH HODGES SMITH, MMC CITY COUNCIL AGENDA 12 APRIL 2005 I. CITY MANAGER'S BRIEFINGS - Conference Room - 1. DEBT and FINANCIAL CAPACITY Patricia Phillips, Director - Finance Catheryn Whitesell, Director - Management Services CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 427-4303 FAX (757) 426-5669 E-MAIL: Ctycncl@vbgov.com 12:30 P.M. 2. CITYVIEW RIGHT-OF-WAY ALIGNMENT FOR CONSTITUTION DRIVE EXTENSTION Robert Scott, Director - Planning 11. BUDGET WORKSHOP - Conference Room - 3:00 P.M. 1. BUDGET OVERVIEW Catheryn Whitesell, Director - Management Services 2. LYNNHAVEN 2007 Charlie Meyer, Chief Operating Officer 3. STORM WATER PROGRAM Dean Block, Director - Public Works III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA ITEMS V. INFORMAL SESSION A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VI. FORMAL SESSION - Conference Room - - Council Chamber - A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. INVOCATION: Pastor Mark Rueter Foundry United Methodist 5:00PM 6..00PAL C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. SPECIAL FORMAL SESSION March 29, 2005 2. INFORMAL AND FORMAL SESSIONS April 5, 2005 G. MAYOR'S PRESENTATIONS 1. PROCLAMATION IN RECOGNITION April 2005 National Records and Information Management Month 2. PROCLAMATION IN RECOGNITION April 10 -16, 2005 National Library Week 3. Virginia Beach Open Golf Tournament Tim Miller Foundation H. AGENDA FOR FORMAL SESSION I. CONSENT AGENDA J. ORDINANCES/RESOLUTIONS 1. Ordinance to AMEND City Code by ADDING §§ 7-71, 7-72 and 7-73 re regulating the rental and use of Surreys in the Resort Area 2. Ordinance to ACCEPT and APPROPRIATE $5,316 to the Fire Department from the Virginia Emergency Management Department as reimbursement for "Determined Promise" exercise 3. Ordinance AUTHORIZING reimbursement of legal fees and expenses incurred by a Sheriff s Deputy in his defense of a criminal charge arising out of the performance of his official duties dismissed by the court 4. Resolution re Constitution Drive Extended: a. Alternative "A": ties into Constitution Drive on the north, crosses I-264, follows Edwin Drive and connects to Independence Boulevard b. Alternative "F": ties into Constitution Drive on the north, intersects with a realigned Bonney Road west of Bendix Road, crosses I-264, and connects to Independence Boulevard northwest of Edwin Drive 5. Resolution AUTHORIZING the City Manager EXECUTE a Memorandum of Understanding (MOU) with Virginia Aquarium and Marine Science Center Foundation, Inc. and Virginia Wesleyan College re maintenance, operation, and use of a Research Vessel for the Aquarium's stranding operations 6. Resolution AUTHORIZING a first Supplemental Support Agreement between the Virginia Beach Development Authority (VBDA) and the City; and, AUTHORIZING the execution of associated financing documents 7. Resolution APPOINTING JAMIE E.K. TYLER and AIMEE E. KNAPP as Assistant City Attorneys K. PLANNING 1. Variance to §4.4 (b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance (CZO) for JOHN C. AND MARY VOGEL TRUST to subdivide a family parcel at 2388-2400 London Bridge Road(DISTRICT 7 — PRINCESS ANNE) RECOMMENDATION: APPROVAL 2. Application of ENOCH BAPTIST CHURCH for a Modi ication of a Conditional Use Permit (approved by City Council on and December 16,1997, and August 28, 2001) to allow a child care center in conjunction with the church. at 5641 Herbert Moore Road (DISTRICT 2 — KEMPSVILLE) RECOMMENDATION: APPROVAL 3. Application of GOOD SAMARITAN EPISCOPAL CHURCH for aModification of Condition Number S of a Conditional Use Permit (approved by City Council on December 13, 1976, and November 9, 2004) re certain level of improvements to the adjacent right-of-way at 848 Baker Road (DISTRICT 2 — KEMPSVILLE) RECOMMENDATION: APPROVAL 4. Application of LAND & BUILDING IV. L.C. for the Modi acation of Proffer Number I re Conditional Change o Zoning (approved by City Council on March 28, 2000 Troy A. Titus), re a building strip mall at 5221 Indian River Road (DISTRICT 1 — CENTERVILLE) RECOMMENDATION: APPROVAL 5. Application of MICHAEL J. & HELEN V. STANDING / FOGGS SEAFOOD CORPORATION re the enlargement of a Nonconforming Use to enlarge the existing free standing restaurant at 415 Atlantic Avenue (DISTRICT 6 — BEACH) RECOMMENDATION: APPROVAL 6. Application of RICK GRAHAM for a Conditional Use Permit re automotive repair garage within an existing building in the Owls Creek Commerce Center at 1228 Jensen Drive (DISTRICT 6 — BEACH) RECOMMENDATION: 7. Application of JAMES E. MILLER for a Conditional Use Permit for a bulk storage yard at 593 South Birdneck Road (DISTRICT 6 — BEACH) RECOMMENDATION: L. APPOINTMENTS Community Policy and Management Team — CSA At Risk Community Services Board Francis Land House Board of Governors Health Services Advisory Board Human Rights Commission Investment Partnership Advisory Committee Minority Business Council Open Space Subcommittee Parks and Recreation Commission Performing Arts Theatre Advisory Committee Personnel Board The Planning Council Towing Advisory Board M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) APPROVAL 2005-2006 RESOURCE MANAGEMENT PLAN SCHEDULE EVENT TOPIC LOCATION DATE Workshop Safe Community and Quality Council April 14, 2005 Or anization Conference Room Workshop Quality Education & Lifelong Learning; Council April 19, 2005 Constitutional O zcers Con erence Room Public Hearing Bayside High April 21, 2005 School 6: 00 PM Workshop Economic Vitality, Cultural and Council April 26, 2005 Recreational Opportunities; Family and Conference Room Youth Opportunities Public Hearing Council Chamber April 26, 2005 6: 00 P.M. Reconciliation Council May 3, 2005 Workshop Conference Room Adoption of FY City Council Vote on Resource Council Chamber May 10, 2005 2005-2006 Management Plan 6: 00 P.M. Resource Management Plan Agenda04/12/05blb www.vbgov.com I. CITY MANAGER'S BRIEFINGS - Conference Room - 12:30 P.M. DEBT AND FINANCIAL CAPACITY Patricia Phillips, Director - Finance Catheryn Whitesell, Director - Management Services 2. CITYVIEW RIGHT-OF-WAY ALIGNMENT FOR CONSTITUTION DRIVE EXTENSTION Robert Scott, Director - Planning BUDGET WORKSHOP - Conference Room - 3:00 P.M. BUDGET OVERVIEW Catheryn Whitesell, Director - Management Services 2. LYNNHAVEN 2007 Charlie Meyer, Chief Operating Officer 3. STORM WATER PROGRAM Dean Block, Director, - Public Works III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA ITEMS V. INFORMAL SESSION - Conference Room - 3:00 PM A. . CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VI. FORMAL SESSION - Council Chamber - 6:00 P.M. A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. INVOCATION: Pastor Mark Rueter Foundry United Methodist 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 I. SPECIAL FORMAL SESSION 2. INFORMAL AND FORMAL SESSIONS March 29, 2005 April 5, 2005 NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the Chamber at City Hail, Municipal Center, 2401 Courthouse Drive, Tuesday, April 12, 2005, at 6:00 p.m. The following applications will be heard: DISTRICT 6 - BEACH 1. Michael J. & Helen V. Standing / Foggs Seafood Corporation Applica- tion: Enlargement of a Nonconforming Use at 415 Atlantic Avenue (GPIN 24273219130000). 2. James E. Miller Application: Conditional Use Permit for a bulk storage yard at 593 South Birdneck Road (GPIN 24164830210000). 3. Rick Graham Application: Conditional Use Permit for an automotive repair garage at 1228 Jensen Drive (GPIN 24173267690000). DISTRICT 1- CENTERVILLE 4. Land & Building IV, L.C. Application: Modification of Proffers for a Conditional Change of Zoning application approved by City Council on March 28, 2000 (Troy A. Titus) at 5221 Indian River Road (GPIN .14654704140000). The Comprehensive .Plan designates this site as being part of the Primary Residential Area, suitable for appropriately located suburban residential and non-residential uses consistent with the policies of the Comprehensive Plan. The purpose of the requested modification is to develop the site for a strip retail center rather than the previously approved office building. DISTRICT 7 - PRINCESS ANNE 5. Appeal to Decisions of Administrative Officers in regard to certain ele- ments of the Subdivision Ordinance, Subdivision for John C. and Mary Vogel Trust, at 2388-2400 London Bridge Road (GPIN 24050006930000). DISTRICT 2 - KEMPSVILLE 6. Enoch Baptist Church Application: Modification of a Conditional Use Permi approved by City Council on August 28 2001, at 5641 Herbert Moore Road. The proposal would allow a child care center in conjunc- tion with the church. (GPIN 14682411340000). 7. Good Samaritan Episcopal Church Application: Modification of a Con ditional Use Permit approved by City Council on November 9. 2004 at 848 Baker Road (GPIN 14681460320000). All interested citizens are invited to attend. Ruth Hodges Smith, MMC City Clerk Copies of the proposed ordinances, resolutions and amendments are on file and may be examined in the Department of Planning. For information cail 427-4621. if you are physically disabled o, visually impaired and need assis- tance at this meeting, please call the CiTY CLERK'S OFFICE at 427.4303. Hearirg impaired, call: Virginia Relay at 1-800-823-1120. The Planning Commission Agenda is available through the City's Inter- net Home Page at http://www vbEov corn/planningcommission VP Mar. 29, 2005 12955077 G. PRESENTATION PROCLAMATION IN RECOGNITION April 2005 National Records and Information Management Month 2. PROCLAMATION IN RECOGNITION April 10 -16, 2005 National Library Week 3. Virginia Beach Open Golf Tournament Tim Miller Foundation H. AGENDA FOR FORMAL SESSION I. CONSENT AGENDA PROCLAMATION Whereas: The management and control of records and information are increasingly critical to every industry, business, state and local government agency, and the systematic creation, distribution, storage and retrieval of records are of critical importance to the continued and efficient operation of any good organization, in facing the complexities of competition, customer service and globalization; and Whereas: Organizations that excel today and tomorrow will be those recognizing the need to use information as a major resource to create value and plan strategically, by structuring it as efficiently as they do other assets; and Whereas: An effective records management program assures the availability of information as a basis for sound decision -making by providing security and control against loss by mismanagement, natural disaster, theft or inadvertent destruction, thereby reducing the risk and liability of as well as establishing compliance with global standards; and Whereas: Constantly changing technologies for storing information are expanding the amounts of information that can be acquired, with increased longevity, which requires a concerted effort to assure proper retention and control, and Whereas: All Virginia Beach citizens should recognize the significant and important role that records management professionals render in maintaining appropriate business, civic and government records. Now, Therefore, I Meryera E. Oberndorf, Mayor of the City of Virginia Beach, Virginia, do hereby Proclaim: April 2005 National Records and Information Management Month In Virginia Beach, and encourage all citizens of Virginia Beach to recognize the importance of this event. In Witness Whereof, I have hereunto set my hand and caused the Official Seal of the City of Virginia Beach, Virginia, to be affixed to this , 2005. Meyera E. Oberndorf Mayor PROCLAMATION Whereas: Our nation's libraries and librarians play a vital role in connecting millions ofpeople with the resources they need to live, learn, work, govern and thrive in the 21st Century; and Whereas: Americans use libraries to find jobs, to learn to read, to be literate online, to find vital health facts, to research their environment and diets - and to find food for our souls; and Whereas: Free people need free libraries, and America's libraries are the cornerstones of our democracy; Whereas: Librarians are the guardians of free access to information and resources. Libraries are for everyone, everywhere; and Whereas: Every library - whether public, school, academic or special - has something unique to offer that ties its community to the very concept of a free people in a free land; and Whereas: A library is just as important apart of a community's infrastructure as any road, bridge, public building or utility; and Whereas: Libraries are places of opportunity, education and self-help. Libraries are part of the American dream; and Whereas: Libraries bring you the world. Nowhere else can you have access to nearly anything on the Web or in print as well as personal service and assistance in finding it; and Whereas: In times of economic instability, Americans turn to - and depend on - their libraries and librarians; and Whereas: Awareness and support must be increased for libraries by increasing the visibility of libraries in a positive context and by communicating clearly and strongly why libraries are both unique and valuable; and Whereas. Millions ofpeople pass through the library each year, but without adequate support, library resources may not be there when we need them. We must ensure our libraries have a future with sustained funding and support; and Whereas: Libraries and library supporters across America and beyond are celebrating National Library Week with The Campaign for America's Libraries, "@ your library"; and Now, therefore, be it resolved that I, Meyera E. Oberndorf, Mayor of the City of Virginia Beach proclaim: April 10 -16, 2005 National Library Week I encourage all residents to support and use their library. Discover or rediscover the wealth of resources available at your library. Rediscover America @ your library. J. ORDINANCES/RE SOLUTIONS Ordinance to AMEND City Code by ADDING §§ 7-71, 7-72 and 7-73 re regulating the rental and use of Surreys in the Resort Area 2. Ordinance to ACCEPT and APPROPRIATE $5,316 to the Fire Department from the Virginia Emergency Management Department as reimbursement for "Determined Promise" exercise 3. Ordinance AUTHORIZING reimbursement of legal fees and expenses incurred by a Sheriff's Deputy in his defense of a criminal charge arising out of the performance of his official duties dismissed by the court 4. Resolution re Constitution Drive Extended: a. Alternative "A": ties into Constitution Drive on the north, crosses I-264, follows Edwin Drive and connects to Independence Boulevard b. Alternative "F": ties into Constitution Drive on the north, intersects with a realigned Bonney Road west of Bendix Road, crosses I-264, and connects to Independence Boulevard northwest of Edwin Drive 5. Resolution AUTHORIZING the City Manager EXECUTE a Memorandum of Understanding (MOU) with Virginia Aquarium and Marine Science Center Foundation, Inc. and Virginia Wesleyan College re maintenance, operation, and use of a Research Vessel for the Aquarium's stranding operations 6. Resolution AUTHORIZING a first Supplemental Support Agreement between the Virginia Beach Development Authority (VBDA) and the City; and, AUTHORIZING the execution of associated financing documents 7. Resolution APPOINTING JAMIE E.K. TYLER and AIMEE E. KNAPP as Assistant City Attorneys CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend the City Code to Regulate the Rental and Use of Surreys in the Resort Area MEETING DATE: April 12, 2005 ■ Background: Surreys are popular four -wheeled, pedal -powered vehicles operated on the bicycle path at the Oceanfront. In 1998, the Resort Advisory Commission ("RAC") endorsed the concept of ten surreys being operated on the bike path, citing their benefit as a family -oriented beach amenity. From 1998 to 2001, the total number of rental agencies renting surreys grew from one to 18, while the number of surreys grew from 10 to approximately 101. By the summer of 2004, there were an estimated 171 surreys being rented at 27 different locations. Most of the rental agencies are located on private property of hotels facing the boardwalk. However, due to the size of surreys and limited storage space on private property, many surreys are stored and rented on public property in the greenbelt, which has caused damage to the sod and the greenbelt's overall appearance. Furthermore, there are seven rental agencies located on the western side of Atlantic Avenue and these surreys must cross both Atlantic Avenue sidewalks and Atlantic Avenue itself to be used on the bike path. Increasingly, surreys are being operated in inappropriate areas such as the Boardwalk, Atlantic Avenue, and resort area streets and sidewalks. The proliferation of surreys has produced congestion on the bicycle path. There are currently no city ordinances regulating the operation of surreys in the resort area. ■ Considerations: The proposed ordinance is designed to regulate the rental and operation of surreys. This proposed ordinance only allows surreys to operate on the bike path and connecting oceanfront plazas while prohibiting the use of City property for use as a storage or rental site. A permit is required for all surreys rented in the resort area. Only seven permits will be granted for each rental location, and the applicant will have to demonstrate the ability to properly store all their surreys. The City Manager will have the authority to revoke or suspend surrey permits in the event of guideline violations or as required for public safety. ■ Public Information: A copy of the proposed ordinance was circulated to most of the surrey rental agencies in January requesting their input; however, many of these locations were not yet open for business. The two largest surrey rental agencies were contacted directly by the Resort Management Office. A story detailing the proposed ordinance was published in the Beacon on January 16, 2005, and the Resort Advisory Commission recently endorsed the proposed ordinance. Additionally, a public hearing was held during the March 1, 2005 Council session. ■ Recommendations: Adoption of Ordinance ■ Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/A ency: Convention & Visitors Bureau City Manager• 1 AN ORDINANCE TO AMEND THE CITY CODE TO 2 REGULATE THE RENTAL AND USE OF SURREYS 3 IN THE RESORT AREA 4 5 SECTIONS ADDED: City Code §§ 7-71, 7-72 and 7-73 6 7 8 WHEREAS, the Council of the City of Virginia Beach hereby 9 finds that the proliferation of surreys (four -wheeled, multi- 10 passenger pedal -powered vehicles) at the resort area has 11 resulted in increased congestion and safety problems for the 12 resort area; and 13 WHEREAS, the Council further finds that regulating surreys 14 by (i) prohibiting their use on the Boardwalk and the resort 15 sidewalks and streets; (ii) requiring a permit; (iii) limiting 16 the number of permits that may be issued; and (iv) establishing 17 reasonable rules for the operation of surreys in the resort 18 area, will protect the safety of the public and ensure the 19 orderly use of public recreational facilities. 20 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 21 OF VIRGINIA BEACH, VIRGINIA: 22 That a new Article V of Chapter 7, consisting of Sections 23 ' 7-71, 7-72 and 7-73, is hereby added to Chapter 7 of the City 24 Code, to read as follows: 25 ARTICLE V. SURREYS. 26 Sec. 7-71. Use of surreys on Boardwalk or grassy area, etc. 1 27 28 (a) surrey or It shall be unlawful for any person to operate a any similar device on the resort area Boardwalk or its 29 adjacent grassy areas, in resort area parks, or on resort area 30 sidewalks and streets from Rudee Inlet to 42nd Street and from 31 the sandy beach to Parks Avenue. Surreys operated in the resort 32 area may only be operated on the resort area bike path or the 33 connecting oceanfront plazas. 34 (b) It shall be unlawful for any person to operate a 35 surrey in a manner that blocks traffic on the bicycle path, 36 interferes with pedestrians, or endangers the life, limb or 37 property of the operator or any other person 38 (c) It shall be unlawful for any person under fourteen 39 (14) years of age to operate a surrey unless under the immediate 40 supervision of a person who is at least eighteen (18) years of 41 age. 42 COMMENT 43 The proposed ordinance regulates the use of surreys operated in the resort area. The 44 ordinance prohibits the operation of surreys in all resort area locations, except properly permitted 45 surreys may be operated on the bike path and the connecting resort area plazas. The ordinance 46 establishes an operational age limit (at least 14 years of age) and makes reckless operation of 47 surreys unlawful. As set forth in City Code § 7-2, violations of this Article constitute a Class 4 48 misdemeanor and may be punished by a fine up to $250. 49 Sec. 7-72. Permit requirement; rental businesses 50 51 (a) A offered as permit shall be required a rental or operated on the for each surrey resort area bike that is path or 52 connecting oceanfront plazas. The fee for each permit shall be 2 53 ten dollars ($10.00). Permits shall be valid for one (1) year 54 from the date of issuance. No permits shall be issued for 55 surreys rented from businesses located west of Atlantic Avenue. 56 (b) Notwithstanding the provisions of sub -section (a) 57 above, any person owning or managing a business located west of 58 Atlantic Avenue, that owns identifiable rental surreys as of the 59 adoption date of this section, may obtain yearly permits for 60 those identified rental surreys. Businesses operating under the 61 provisions of this section shall not obtain any additional 62 surreys if the total number of surreys rented from that location 63 exceeds seven (7). The right to operate under the provisions of 64 this sub -section shall not transfer from the original owner or 65 business to any other person or business. 66 (c) Applications for surrey permits shall be made to the 67 Convention and Visitors Bureau's Resort Management Office. The 68 permit application shall identify the surrey (including its 69 color and manufacturer), its owner, the surreys storage 70 location, and the surreys rental location. The application 71 shall also list the name of a manager for each rental location, 72 as well as provide the business mailing address and/or facsimile 73 numbers. 74 (d) No permit shall be issued without the Zoning 75 Administrator's or his/her designee's certification that any 76 proposed storage or rental facilities for surreys are permitted 77 by the zoning ordinance and are not located on city property. 78 No business shall be issued more than seven (7) permits for any 79 rental location. 80 (e) Not withstanding the provisions of sub -section (d) 81 above, all identifiable rental surreys owned by oceanfront 82 businesses as of the adoption date of this section, may obtain 83 yearly permits for those identified surreys. Businesses 84 operating under the provisions of this section shall not obtain 85 any additional surreys if the total number of surreys rented 86 from that location exceeds seven (7). The right to operate 87 under the provisions of this sub -section shall not transfer from 88 the original owner or business to any other person or business. 89 (f) For the purposes of this Article, an "identifiable 90 rental surrey" is a surrey owned by a rental business as of the 91 adoption date of this ordinance, that has provided the following 92 information to the Resort Management Office: 93 1. Manufacturer of surrey; 94 3. Color of surrey; and 95 4. Owner of surrey. 96 (g) A decal indicating that the required permit has been 97 obtained for an identifiable rental surrey shall be displayed 98 prominently on any surrey used or offered for rent in the resort 99 area. Each permitted surrey shall affix a permanent sign that 100 is visible to the operator, and enumerates the following 101 statements: 102 1. No riding surreys on the Boardwalk, sidewalks, 103 grassy areas or streets. 104 2. No one under 14 years old may operate this surrey 105 unless accompanied by a supervising adult. 106 3. No person or persons may ride outside of the 107 surrey. 109 The signs affixed to those surreys rented from locations 110 west of Atlantic Avenue shall also include the following ill statement: Do not ride surrey on any street - surreys may only 112 be walked across Atlantic Avenue at marked crosswalks while 113 enroute to the Boardwalk or when returning surrey to rental 114 location. 115 COMMENT 116 This ordinance requires permits for all surreys operated in the resort area. The Zoning 117 Administrator shall certify that City property is not proposed for use as the rental or storage 118 location prior to the permit being issued. The yearly permit fee for each surrey will be $10. No 119 permits will be issued to businesses located to the west of Atlantic Avenue, excepting those 120 businesses located to the west of Atlantic Avenue that are in the business of renting surreys on the 121 adoption date of this ordinance. No business location shall be issued more than seven permits, 122 excepting those business locations that own more than seven surreys on the adoption date of this 123 ordinance. 124 5 125 Sec. 7-73 Grant of permits, conditions 126 (a) The City Manager or his designee is hereby authorized 127 and directed to develop guidelines for the issuance, suspension 128 and revocation of surrey permits. Such guidelines may address 129 topics including, but not limited to, equipment standards, 130 maintenance, cleanliness, identification, and the size and 131 seating capacity of surreys. The guidelines shall also prohibit 132 posting advertisements on surreys. 133 (b) Any permit for the operation of a surrey may be 134 revoked or suspended by the City Manager for: 135 1. any violation of this Article; 136 2. continued violation of the guidelines published 137 by the City Manager; or 138 3. any material misrepresentation, intentional or 139 otherwise, made in the permit application. 140 The revocation or suspension notice shall be faxed or hand- 141 delivered to the surrey's rental location, and shall be 142 effective upon receipt. After receipt of this notice, the 143 rental business' owner or designee shall immediately discontinue 144 or cause to be discontinued the operation or use of permitted 145 surreys as provided in the notice. Thereafter, the rental 146 business' owner or designee shall be entitled to a hearing 147 before the City Manager or his designee within ten (10) days of 148 the effective date of the revocation or suspension. The City 149 Manager, or the Acting Commander of the Police Department's 150 Second Precinct, may also temporarily prohibit the operation of 151 surreys in the resort area under the following conditions: 152 1. when weather conditions make the operation of 153 surreys unsafe; 154 2. when congestion on the resort area bike path 155 makes the operation of surreys unsafe; or 156 3. when otherwise required in the interest of public 157 health, safety or welfare. 158 Additionally, the Resort Management Office shall provide all 159 surrey rental businesses the date and times that permitted 160 Boardwalk events will necessitate closing of the bike path. It 161 shall be unlawful to provide rental surreys to customers during 162 those designated time periods. 163 (c) Only those surreys issued permits as provided by this 164 Article may operate on the resort area bike path or the 165 connecting oceanfront plazas. Any person who provides or offers 166 to provide an unpermitted surrey to another for operation in the 167 resort area shall be guilty of a Class 3 misdemeanor. 168 (d) It shall be unlawful for any person to store or park 169 any surrey on city property without the written authorization of 170 the City Manager or his designee. 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 COMMENT This ordinance gives the City Manager the authority to develop guidelines related to the issuance, suspension and revocation of surrey permits, and outlines suspension and revocation procedures. The City Manager, or the Acting Commander of the Police Department's Second Precinct may also temporarily suspend all surrey operations on the bike path when in the interest of public safety. This section makes offering for rent an unpermitted surrey, a Class 3 misdemeanor, punishable by a fine up to $500. Lastly, this section makes storing or parking surreys on public property unlawful, and a Class 4 misdemeanor under the provisions of City Code § 7-2. Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of CA-9104 GG/ORDRES/PROPOSED/07-71 et al.doc R-34 April 4, 2005 APPROVED AS TO CONTENTS: tion &'Visitors Bureau . 2005. APPROVED AS TO LEGAL SUFFICIENCY: r City Attorney's Office 8 :zr CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance To Accept And Appropriate $5,316 To The Virginia Beach Fire Department From The Virginia Department Of Emergency Management As Reimbursement For "Determined Promise" Exercise MEETING DATE: April 12, 2005 ■ Background: During the month of August 2004 the City took part in a Department of Defense sponsored regional homeland security exercise identified as "Determined Promise." The City of Virginia Beach was originally allocated $9,000 in grant funding that was appropriated to support planning and development activities, supplies and overtime expenses for this event. Prior to the event, there was the expectation that this amount would be insufficient to cover all expenses. The Fire Department was prepared to absorb excess costs to insure the exercise was conducted to the fullest extent possible. Subsequently, documentation has been sent to the Virginia Department of Emergency Management's Preparedness Working Group documenting total expenses of $14,316 for involvement with this exercise. ■ Considerations: The Virginia Department of Emergency Management recently advised the City that the expenses beyond the original disbursement of $9,000 would be reimbursed and a wire of $5,316 is being held pending formal appropriation. A specific grant fund for the Determined Promise event had been established prior to the event. The ordinance would accept and appropriate the money to the Fire Department's FY05 operating budget. ■ Public Information: Public Information will be handled through the normal agenda process. ■ Alternatives: This is a documented reimbursement of expenses incurred by the City to participate in the Determined Promise Exercise. ■ Recommendations: Approve and accept $5,316.00 from the Virginia Dept. of Emergency Management ■ Attachments: Ordinance, notification from the VDEM Recommended Action: Approve Submitting Department/Agenc Fire: City Manager 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE 2 $5,316 TO THE VIRGINIA BEACH FIRE DEPARTMENT 3 FROM THE VIRGINIA DEPARTMENT OF EMERGENCY 4 MANAGEMENT AS REIMBURSEMENT FOR "DETERMINED 5 PROMISE" EXERCISE 6 7 8 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA 9 BEACH, VIRGINIA: 10 That $5,316 in funds is hereby accepted from the Virginia 11 Department of Emergency Management and appropriated to the Fire 12 Department's FY 2004-05 Operating Budget, for costs associated 13 with the Determined Promise Exercise. 14 BE IT FURTHER ORDAINED: That estimated revenue from the 15 state is hereby increased by $5,316 in the 2004-2005 Operating 16 Budget. 17 Requires an affirmative vote by a majority of members of 18 the City Council. 19 20 Adopted by the Council of the City of Virginia Beach, 21 Virginia on the day of , 2005. CA9585 GG/Ordres/Prposed/Determined Promise.doc R-1 March 30, 2005 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFIC ENCY: 1�k (manageAentlservices City Attorney's Office Page I of 1 Donna Brehm - Re: Reimbursement for DP04 Exercise Overages From: Gregory Cade To: Hampton, Hart, Date: 2/10/2005 1:58 PM Subject: Re: Reimbursement for DP04 Exercise Overages CC: Brehm, Donna; Marchbahk, Mark I will have Mark get the information to you. Thanks >>> "Hart, Hampton"<Hampton.Hart@vdem.virginia.gov> 02/10/05 01:22PM >>> Chief Cade, As a result of your participation in last year's Determined Promise Exercise, your jurisdiction incurred costs in excess of the ODP Grant funds passed to' you to support your activities. The opportunity has now presented itself for the Commonwealth to reimburse you for the $5,316.00 that you identified in your exercise expense report. If you would like to receive the reimbursement for those expenses, please provide the receipts to me NLT 15 February 2005. Sorry for the late notice but this is a time sensitive request. If you are not interested in receiving the reimbursement, please indicate so by the aforementioned date. If you have any questions, please do not hesitate to contact me. Sincerely, H3 Hampton H. Hart, Jr. Commonwealth Exercise Training Officer Preparedness, Training and Exercises Division Virginia Department of Emergency Management 10501 Trade Court Richmond, Virginia 23236 (804) 897-6500, Ext 6593 (804) 897-6556 (Fax) PLEASE NOTE MY NEW ADDRESS: <mailto:TNamntnn Rartavrlam Hampton.Hart@vdem.virginia.gov ad majorem Dei gloriam file://C:\Documents%20and%20Settings\dbrehm\Local%20Settings\Temp\GW)00004.HTM 2/10/2005 GRANT NAMENEAR: ODP EXERCISES I EIN # 0722061 CONTACT PERSON: I EMAIL ADDRESS: GRANT/AWARD AMOUNT GRANT AWARD $9,000 City of Virginia Beach TELEPHONE #. 7S74274228 Mark Marchbank TELEPHONE #: Deputy Coordinator Emergency nt 7S7427-8466 2408 Courthouse Drive Virginia Beach, VA 23456 mmarcbba@vbgov.com EXERCISE DEVELOPMENT COST COST/ I # CATEG. UNIT UNITS Exercise Planning 1 $3&00 1 30 Logistics and Setup Planning & Development Exercise Play Refreshments $30.00 1 8 $30.00 32 $30.00 362 GRANT INVOICE BALANCE DATE TOTAL COST $900.00 $8100 9/1S/04 $720.00 $7380 9/1S/04 $240.00 $7140 9/1S/04 $960.00 $6180 9nSM $10,960 -$4080 9/1S/04 $636.00 -$4716 9/IS/04 APPROVED NO OM GRMTMGMr. RRV. 1. CW14/2004 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing the Reimbursement of a Sheriff's Deputy for Legal Fees and Expenses Costs Incurred by Him In His Defense of a Criminal Charge that was Dismissed by the Court MEETING DATE: April 12, 2005 ■ Background: A Virginia Beach Sheriffs Deputy was charged with the misdemeanor offense of assault and battery. destroying private property. The charge arose from the deputy's performance of his duties as a Sheriffs Deputy. The charge against the deputy was dismissed by the General District Court on December 16, 2004. The City Attorney's Office has reviewed the circumstances of the case and determined that fees charged are reasonable. ■ Considerations: In situations where a law -enforcement officer is investigated, arrested, indicted, or prosecuted for an alleged criminal act committed in the discharge of official duties, Section 15.2-1711 of the Code of Virginia authorizes local governing bodies to reimburse the legal fees and expenses incurred by such officer if no charges are brought, the charges are dismissed, or at trial the officer is found not guilty. ■ Recommendation: Approval of ordinance. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: City Attorney City Manager: k 7vet AN ORDINANCE AUTHORIZING THE REIMBURSEMENT OF A SHERIFF'S DEPUTY FOR LEGAL FEES AND EXPENSES INCURRED BY HIM IN HIS DEFENSE OF A CRIMINAL CHARGE THAT WAS DISMISSED BY THE COURT WHEREAS, a Virginia Beach sheriff's deputy was charged with assault and battery for actions arising out of the performance of his official duties; WHEREAS, at a trial held in the Virginia Beach General District Court on December 16, 2004, the charge against the officer was dismissed; WHEREAS, in the defense of said charge, the officer incurred legal fees and expenses in the amount of $1,500, and has requested the City to reimburse him for such fees and expenses; WHEREAS, Section 15.2-1171 of the Code of Virginia provides that "(i)f any law -enforcement officer shall be investigated, arrested or indicted or otherwise prosecuted on any criminal charge arising out of any act committed in the discharge of his official duties, and no charges are brought, the charge is subsequently dismissed or upon trial he is found not guilty, the governing body of the jurisdiction wherein he is appointed may reimburse such officer for reasonable legal fees and expenses incurred by him in defense of such investigation or charge"; WHEREAS, the City Attorney's Office has reviewed the circumstances of this case, assessed the itemized bill submitted by the officer's legal counsel, and determined that the legal fees and expenses incurred by the officer are reasonable. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the Sheriff is hereby authorized to expend funds in the amount of $1,500 from the FY 2004-05 Operating Budget of the Sheriff's Office for the purpose of reimbursing a sheriff's deputy for legal fees and expenses incurred by him in his defense of a criminal charge brought against him arising out of the performance of his official duties. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of CA-9581 H/GG/ordres/sheriff.legalfees.ord.doc R-1 March 24, 2005 APPROVED AS TO CONTENT: o ShexAff,s Offic 2005. APPROVED AS TO LEGAL SUFFICIENCY: City orne f ice -25- Item i- I.1. PUBLIC COMMENT ITEM # 53764 Mayor Oberndorf INVITED PUBLIC COMMENT.• CITYVIEW right-of-way alignment for Constitution Drive Extended The following registered in SUPPORT: Attorney R. E. Bourdon, Phone: 499-8971, represented the City View development team and expressed appreciation for the vision and commitment with respect to the Town Center. Cityview represents a private investment in excess of $100-MILLION. Constitution Drive should be extended, as planned, from the southern terminus at Thalia Creek to the intersection of Bonney Road. This will offer immediate access to the core center of Town Center, without the necessity of traveling on Independence Boulevard. The alternatives proposed, especially Alternative F, may cause much of this opportunity to be lost. An alignment has been provided where the road could be shifted to the East, which is similar to Alignment A contained in the City s study. Attorney Bourdon distributed a concept of the proposed shifted alignment. Cecil Cutchins, 829 Greentree Arch, President of Olympia Development Corporation and developer of the Convergence Center. Aerial photographs and Convergence Center exhibits were distributed. This development produces $350, 000 in annual real estate tax revenue. This Office park provides over 1600 jobs. The Convergence Center envisions doubling its current status. A map, dated June 1998, (Central Business District) was distributed. All of the planning was developed around this City document. The Convergence Center supports the original alignment connecting Constitution Drive to Bendix Road. Alternative A would go right through the parking lot and would be devastating. Mr. Cutchins distributed petitions containing 252 signatures supporting Flyover Alternative F and opposed to Alternative A. Said petitions are hereby made apart of the record. Timothy Robertson, I101 South Bay Shore Drive, Phone: 228-3624, Olympia Development Corporation supported the original alignment Andrew Heatwole, 808 Newtown Road, Phone: 473-8575, one of the Principles of City View, opposed to east Alternative F and the 125 foot roadway section displayed during April 4, 2005, Public Information meeting. Phase A of the CityView project is lost with Alternative F. Attorney Les Watson, One Columbus Center, Phone • 497-6633, represented the developers of the Convergence Center. Alternative A would be devestating to the Convergence Center. Alignment F would be catastrophic to others. The City should remain with the alignment, as planned, which provides tremendous access to and from the Town Center. The following registered in OPPOSITION: William Bailey, 4841 Rosecroft Street, represented the Virginia Beach Professional Firefighters Association and his family located in Kempsville. The Association is opposed to any diversion of traffic down Edwin Drive. There being no further speakers, Mayor Oberndorf CLOSED THE PUBLIC COMMENT. April 5, 2005 ,: of CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution Approving an Alignment for Constitution Drive Extended MEETING DATE: April 12, 2005 ■ Background: Independence Boulevard and Witchduck Road in the vicinity of 1-264 are highly congested. As the city continues to grow, and, in particular, as Town Center further develops, congestion is not likely to improve. In an effort to relieve congestion and improve access, the Virginia Department of Transportation (VDOT), at the City's request, initiated a study to identify conceptual transportation improvement alternatives for the Pembroke Area. The study identifies and evaluates, among other things, six (6) alternative alignments east of Independence Boulevard to determine the best alignment for a connection between the existing end of Constitution Drive and South Independence Boulevard (the "Constitution Drive Extension") as a means of accomplishing the objective of improving the road system in this area of the City, and particularly, to provide better access to the Town Center. Two alternative alignments, labeled "A" and "F" are identified as the most preferred: Alternative A ties into Consitution Drive on the north, crosses 1-264, follows Edwin Drive and connects to Independence Boulevard. Alternative F ties into Consitution Drive on the north, intersects with a realigned Bonney Road west of Bendix Road, crosses 1-264, and connects to Independence Boulevard northwest of Edwin Drive. ■ Considerations: On February 8, 2005, the City Council granted a change of zoning to CityView One for property north of Bonney Road through which the Master Transportation Plan indicates Constitution Drive Extended runs. Both Alternative A and Alternative F impact the CityView One development site. Proffer Five approved with the change of zoning indicates that the City has until April 15, 2005 to notify CityView One of its intent to adopt an alignment for Constitution Drive Extended different than the one shown on the development plans submitted with CityView's change of zoning application. If the City Council resolves to follow a different alignment, the proffer indicates that CityView One will modify their development plan to accommodate the new alignment. Failure to notify CityView One before April 15, 2005 of the City's intent to follow a different alignment will result in CityView One proceeding with the original development plan, which runs Constitution Drive Extended Resolution Page 2 of 2 Constitution Drive Extended through their site to a connection with Bonney Road at Bendix Road. On January 11, 2005, the City Council was briefed on the alternative crossings. A public information meeting was held on April 4, 2005, at which time the results of the VDOT study was presented to members of the general public and other interested parties in attendance. The City Council received public comment concerning the two alternative alignments of the Constitution Drive Extension at its regular meeting of April 5, 2005. Two resolutions are provided for the City Council to consider. The City Council can adopt either, depending on whether the Council concludes Alternative A or Alternative F is the preferred alignment. ■ Recommendations: Staff recommends the adoption of the Resolution adopting Alternative A as the preferred general alignment for Constitution Drive Extended. Alternative A provides superior access to the Town Center, greater reduction in delays on Independence Boulevard, and higher potential for multimodal connects, such as improved transit options and bicycle and pedestrian travel. Alternative A does not displace any residents and has greater potential to connect to 1-264, with an ability to add ramps and extend to the north of Virginia Beach Boulevard. ■ Attachments: Resolution for Alternative A Resolution for Alternative F April 5 Public Information Meeting Handout Recommended Action: Adoption of Resolution for Alternative A Submitting Department/Agency: Planning Departmenty/W City Manager: QrILL , 'b�b� 1 A RESOLUTION APPROVING "EAST 2 ALTERNATIVE A" AS THE 3 PREFERRED ALIGNMENT FOR 4 CONSTITUTION DRIVE EXTENDED 5 6 WHEREAS, Independence Boulevard and Witchduck Road in 7 the vicinity of Interstate 264 (I-264) are highly congested; 8 and 9 WHEREAS, as the City, and especially the Town Center, 10 continue to grow, such congestion is likely to worsen; and 11 WHEREAS, Independence Boulevard currently provides the 12 only direct access to the Town Center from the south, and in 13 order for the Town Center to continue to flourish, access to 14 it must be enhanced; and 15 WHEREAS, for a number of reasons, the alignment of a 16 potential roadway that would provide enhanced access to the 17 Town Center, as shown on the Master Transportation Plan, is 18 not feasible; and 19 WHEREAS, at the City's request, a consultant to the 20 Virginia Department of Transportation has performed a study, 21 entitled the "Pembroke Area Transportation Study" (the 22 "Study") to identify conceptual transportation improvement 23 alternatives that would help to alleviate traffic congestion 24 in the Town Center area and its immediate environs and to 25 improve access to the Town Center; and 26 WHEREAS, such study identifies and evaluates, among 27 other things, six (6) alternative alignments east of 28 Independence Boulevard to determine the best alignment for a 29 connection between the existing end of Constitution Drive and 30 South Independence Boulevard (the "Constitution Drive 31 Extension") as a means of accomplishing the objective of 32 improving the road system in this area of the City, and 33 particularly, to provide better access to the Town Center; 34 and 35 WHEREAS, there was a public information meeting held 36 on April 4, 2005, at which time the Study was presented to 37 members of the general public and other interested parties in 38 attendance; and 39 WHEREAS, the City Council received public comment 40 concerning the alternative alignments of the Constitution 41 Drive Extension at its regular meeting of April 5, 2005; and 42 WHEREAS, East Alternative A provides superior access 43 to the Town Center, greater reduction in delays on 44 Independence Boulevard, and higher potential for multimodal 45 connects, such as improved transit options and bicycle and 46 pedestrian travel; and 47 WHEREAS, East Alternative A does not displace any 48 residents; and 49 WHEREAS, East Alternative A has greater potential to 50 connect to I-264, with an ability to add ramps and extend to 51 the north of Virginia Beach Boulevard; 52 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE 53 CITY OF VIRGINIA BEACH, VIRGINIA: 54 That East Alternative A, as shown on the map entitled 55 "PEMBROKE AREA TRANSPORTATION STUDY, EAST ALTERNATIVE A," 56 dated 1-6-05, a copy of which was exhibited to the City 57 Council and is on file at the Planning Department, is 58 hereby selected as the preferred alignment for the 59 Constitution Drive Extension. 60 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF 61 VIRGINIA BEACH, VIRGINIA: F1 62 63 64 65 That the City Manager is hereby directed to take such measures as may be necessary or advisable to effectuate the intent of this Resolution Adopted by the Council of the City of Virginia Beach, 67 Virginia, on the APPROVED AS TO CONTENT: Planning apartment day of 2005. APPROVED AS TO LEGAL SUFFICIENCY: 0 City Attorney's Office CA-9593 OID\Land Use\ordres\Constitution Drive A res.doc R-1 April 7, 2005 3 1 A RESOLUTION APPROVING "EAST 2 ALTERNATIVE F" AS THE 3 PREFERRED ALIGNMENT FOR 4 CONSTITUTION DRIVE EXTENDED 5 6 WHEREAS, Independence Boulevard and Witchduck Road in 7 the vicinity of Interstate 264 (I-264) are highly congested; 8 and 9 WHEREAS, as the City, and especially the Town Center, 10 continue to grow, such congestion is likely to worsen; and 11 WHEREAS, Independence Boulevard currently provides the 12 only direct access to the Town Center from the south, and in 13 order for the Town Center to continue to flourish, access to 14 it must be enhanced; and 15 WHEREAS, for a number of reasons, the alignment of a 16 potential roadway that would provide enhanced access to the 17 Town Center, as shown on the Master Transportation Plan, is 18 not feasible; and 19 WHEREAS, at the City's request, a consultant to the 20 Virginia Department of Transportation has performed a study, 21 entitled the "Pembroke Area Transportation Study" (the 22 "Study") to identify conceptual transportation improvement 23 alternatives that would help to alleviate traffic congestion 24 in the Town Center area and its immediate environs and to 25 improve access to the Town Center; and 26 WHEREAS, such study identifies and evaluates, among 27 other things, six (6) alternative alignments east of 28 Independence Boulevard to determine the best alignment for a 29 connection between the existing end of Constitution Drive and 30 South Independence Boulevard (the "Constitution Drive 31 Extension") as a means of accomplishing the objective of 32 improving the road system in this area of the City, and 33 particularly, to provide better access to the Town Center; 34 and 35 WHEREAS, there was a public information meeting held 36 on April 4, 2005, at which time the Study was presented to 37 members of the general public and other interested parties in 38 attendance; and 39 WHEREAS, the City Council received public comment 40 concerning the alternative alignments of the Constitution 41 Drive Extension at its regular meeting of April 5, 2005; and 42 WHEREAS, East Alternative F provides better 43 circulation of local traffic; and 44 WHEREAS, East Alternative F has greater opportunities 45 for both phased and private construction; and 46 WHEREAS, East Alternative F poses fewer potential 47 design, utility, and maintenance of traffic difficulties 48 during construction; 49 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE 50 CITY OF VIRGINIA BEACH, VIRGINIA: 51 That East Alternative F, as shown on the map entitled 52 "PEMBROKE AREA TRANSPORTATION STUDY, EAST ALTERNATIVE F," 53 dated 1-11-05, a copy of which was exhibited to the City 54 Council and is on file at the Planning Department, is 55 hereby selected as the preferred alignment for the 56 Constitution Drive Extension. 57 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF 58 VIRGINIA BEACH, VIRGINIA: 59 That the City Manager is hereby directed to take such 60 measures as may be necessary or advisable to effectuate the 61 intent of this Resolution 62 2 63 WE Adopted by the Council of the City of Virginia Beach, Virginia, on the APPROVED AS TO CONTENT: Planning D partment day of , 2005. 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'i - 'a }}FW ya F s r Cubon A. ok Or IM ABROKE AREA TRANSPORTATION STUDY 9 ate" Y v e . �� > r lw'�x �r t 4. � � � �• 9 r, V ♦ ..,r. ,. ,4�\\ • J yi ~ I ._. rr F � S CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution Authorizing the City Manager to Execute a Memorandum of Understanding With the Virginia Aquarium and Marine Science Center Foundation, Inc. and Virginia Wesleyan College Regarding the Maintenance, Operation and Use of a 42 foot Research Vessel MEETING DATE: April 12, 2005 ■ Background: The Virginia Aquarium and Marine Science Center Foundation, Inc. is purchasing a 42 foot vessel ("Vessel) which will be used to support the stranding, collection and research operations of the Virginia Aquarium and Marine Science Center (the "Aquarium"). Virginia Wesleyan College (the College") will offer courses of instruction in marine science, oceanography and related subjects and wishes to use the Vessel, on a part time basis, to facilitate and enhance the level of instruction it is able to offer its students. The College has offered to contribute to the cost of acquiring and operating the Vessel, in return for the right to use it on a part-time basis. The Foundation is willing to permit the College to use the Vessel, on a part time basis, subject to the conditions set forth in the Memorandum of Understanding ("MOUA) and the City will allow the Vessel to be docked at public property located at the Aquarium. ■ Considerations: The terms of the MOU are summarized in the attached Summary of Terms ■ Public Information: The public will be informed through the normal agenda process. ■ Alternatives: ■ Recommendations: Approval of the Resolution ■ Attachments: Resolution; Summary of Terms Recommended Action: Approval of resolution Submitting Department/Agency: Department of Museums and Cultural Artsvf� City Manage "s8w'L I A RESOLUTION AUTHORIZING THE CITY MANAGER TO 2 EXECUTE A MEMORANDUM OF UNDERSTANDING WITH 3 THE VIRGINIA AQUARIUM AND MARINE SCIENCE 4 CENTER FOUNDATION, INC. AND VIRGINIA 5 WESLEYAN COLLEGE REGARDING THE MAINTENANCE, 6 OPERATION AND USE OF A 42-FOOT RESEARCH 7 VESSEL 8 9 WHEREAS, the Virginia Aquarium and Marine Science Center 10 Foundation, Inc. ("Foundation") has or will shortly contract for 11 the purchase of a 42-foot vessel ("Vessel") which will be used 12 to support the stranding, collection and research operations of 13 the Virginia Aquarium and Marine Science Center (the 14 "Aquarium"); and 15 WHEREAS, Virginia Wesleyan College (the "College") has 16 begun, or will shortly begin, to offer courses of instruction in 17 marine science, oceanography and related subjects and wishes to 18 use the Vessel, on a part time basis, to facilitate and enhance 19 the level of instruction it is able to offer its students, and 20 the College has offered to contribute to the cost of acquiring 21 and operating the Vessel, in return for the right to use it on a 22 part time basis, as a part of its course of instruction; and 23 WHEREAS, the Foundation is willing to permit the College to 24 use the Vessel, on a part time basis, subject to the conditions 25 set forth in the Memorandum of Understanding; and 26 WHEREAS, the City will allow the Vessel to be docked at 27 public property located at the Aquarium; 28 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY 29 OF VIRGINIA BEACH, VIRGINIA: 30 The City Manager is hereby authorized and directed to 31 execute said Memorandum of Understanding on behalf of the City 32 of Virginia Beach. A summary of the material terms for the 33 agreement is attached hereto and a true copy of the agreement is 34 on file with the City Attorney. Adopted by the Council of the City of Virginia Beach, Virginia on the day of APPROVED AS TO CONTENT: Museums and Cultural Arts 11 2005. APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office CA-9588 H:\PA\GG\ORDRES\VAMSF-Wesleyan vessel.res.doc R-1 March 31, 2005 2 Memorandum of Understanding between City of Virginia Beach ("City"), Virginia Aquarium and Marine Science Center Foundation, Inc. ("Foundation") and Virginia Wesleyan College ("College") SUMMARY OF TERMS Purpose: Outlines the terms for docking, operating and maintaining a 42-foot boat (the "Vessel") at the Aquarium. The Vessel shall be used solely for educational, research, environmental, or marine animal rescue purposes, or for purposes related directly to the mission of the Aquarium or the College. Premises: Docks located on Owls Creek at the Aquarium. Term: This MOU may not be terminated, except for a violation of its terms, for one year following the date the Vessel is delivered to the Foundation at the Aquarium's docks in the City. Thereafter, any party may terminate the MOU for any reason upon giving sixty days prior written notice, to the other parties, of its intent to do so. Responsibilities of the City: • The City and the Foundation shall have sole authority to authorize use of the Vessel. • Select the crew for the Vessel. • In the event the Vessel is used for the sole benefit of the City, the City shall pay 100% of the operating costs. If the Vessel is used for the joint benefit, each party shall pay 50% of the operating costs. Responsibilities of the Foundation: • The Foundation will retain sole title and ownership of the Vessel. If the event of cancellation or termination of this MOU for any cause, the Foundation shall be under no obligation to reimburse the College for any portion of the funds the College has contributed to acquiring and equipping the Vessel. • The Foundation and the City shall have sole authority to authorize use of the Vessel. • Will pay 50% of the cost of insurance of the Vessel. • In the event the Vessel is used for the sole benefit of the Foundation, the Foundation shall pay 100% of the operating costs. If the Vessel is used for the joint benefit, each party shall pay 50% of the operating costs. Responsibilities of the College: • The College will pay the Foundation 50% of the Foundation's actual cost of acquiring the Vessel and of transporting it to the docks of the Aquarium. • The College will pay 50% of the cost of insurance of the Vessel. • Will pay 100% of the cost of any equipment added to the Vessel at its request and which is not included in the specifications. • The College will pay 50% of the cost of maintaining the Vessel, including all required maintenance, transportation and repair costs. • Will pay 50% of any costs incurred in docking the Vessel which will be permanently docked either on City property located at the docks of the Aquarium, or at the nearest convenient marina. • In the event the Vessel is used for the sole benefit of the College, the College shall pay 100% of the operating costs. If the Vessel is used for the joint benefit, each party shall pay 50% of the operating costs. • Will indemnify and hold harmless the Foundation and the City against any loss, damage, injury or death, and any expense, arising from or related in any way to the docking of the Vessel at the Aquarium. 2 MEMORANDUM OF UNDERSTANDING Between the City of Virginia Beach, the Virginia Aquarium & Marine Science Center Foundation, Inc. and Virginia Wesleyan College This Memorandum of Understanding (the "MOU") made and entered into as of this of , 2005, by and between the city of Virginia Beach, a municipal corporation of the Commonwealth of Virginia (the "City"), the VIRGR41A AQUARIUM & MARINE SCIENCE CENTER FOUNDATION, INC., a Virginia non -stock corporation with its principal office at 717 General Booth Boulevard, Suite 1, in the City of Virginia Beach, Virginia (the "Foundation'), and VIRGINIA WESLEYAN COLLEGE, a private institution of higher education located at 1584 Wesleyan Drive in the City of Norfolk, Virginia (the "College"). RECITALS A. The Foundation has or will shortly contract for the purchase of a 42-foot vessel (the "Vessel") to be used to support the collection and research operations of the Virginia Aquarium & Marine Science Center (the "Aquarium"). The Vessel will be constructed and equipped in accordance with a proposal dated November 11, 2004, prepared by the Glass Boat Works, Inc., of Exmore, Virginia, a copy of which is attached to this MOU, marked "Exhibit A" and incorporated herein by reference. The estimated cost of the Vessel, including a 10% contingency, is $300,000. B. The College has begun, or will shortly begin, to offer courses of instruction in marine science, oceanography and related subjects and wishes to use the Vessel, on a part time basis, to facilitate and enhance the level of instruction it is able to offer its students. To that end, the College has offered to contribute fimds to the cost of acquiring and operating the Vessel, in return for the right to use it on a part time basis, as a part of its course of instruction. C. The Foundation is willing to permit the College to use the Vessel, on a part time basis, subject to the conditions set forth in this MOU. D. The City will allow the Vessel to be docked at public property located at the Aquarium. AGREEMENT 1. The College will pay to the Foundation, 50% of the Foundation's actual cost of acquiring the Vessel and of transporting it to the docks of the Aquarium on Owls Creek in the City of Virginia Beach. The Foundation will, however, retain sole title and ownership of the Vessel, and in the event of cancellation or termination of this MOU for any cause, shall be under no obligation to reimburse the College for any portion of the funds the College has contributed to acquiring and equipping the Vessel, except as hereafter specifically provided. 2. The College will pay 100% of the cost of any equipment which is added to the Vessel at its request and which is not included in the specifications contained in Exhibit A attached. I-6399413 3. The College will pay 50% of the cost of maintaining the Vessel, including all required maintenance, transportation, and repair costs. 4. The College will pay 50% of the cost of insuring the Vessel with the coverages deemed necessary by the Foundation and the City, and the College will be named as an insured in every policy providing such coverages. 5. The Foundation will secure and maintain in full force and effect at all times during the term of this MOU all policies required herein. All policies of insurance required herein shall be written by insurance companies licensed to conduct the business of insurance in the Commonwealth of Virginia, and shall be acceptable to the City and the College, and shall carry the provision that the insurance will not be canceled or materially modified without thirty (30) days prior written notice to the City, the Foundation, and the College. In the event that the Vessel is destroyed or damaged beyond economical repair by an accident or casualty which is covered by such insurance and the decision is made by the Foundation not to repair or replace the Vessel, the College shall be entitled to share in the proceeds of such insurance in the same proportion as the fair market value of the College's interest in the Vessel bears to the total fair market value of the Vessel at the time of the loss or destruction. 6. The College will pay 50% of any cost incurred in docking the Vessel which will be permanently docked either on City property located at the docks of the Aquarium, or at the nearest convenient marina 7. The Foundation and the City, acting through the Director of the Aquarium or her designee, shall have sole authority to authorize use of the Vessel. The Vessel shall be used solely for educational, research, environmental, or marine animal rescue purposes, or for purposes related directly to the mission of the Aquarium or of the College. At no time shall the Vessel be used for purposes that are primarily social or recreational in nature, or which are intended primarily to raise funds. Any third party that is permitted to use the Vessel shall execute a user permit and pay an appropriate fee sufficient to cover all costs associated with its use of the Vessel. 8. Ih the event the Vessel is used solely for the benefit of the College or solely for the benefit of the City, the party for whose sole benefit the Vessel is used shall pay 100% of the operating costs. In the event the Vessel is used for the joint benefit of the College and the City, each party shall pay 50% of the operating costs. In the event that the Vessel is used partly for the benefit of a third party and partly for the benefit of either or both the College and/or the City, the operating costs shall be divided equally among those parties for whose benefit the Vessel was used. 9. The City, acting through the Director of the Aquarium or her designee, will select the crew for the Vessel. 10. The responsibility of the parties to this agreement, as between the City and the Foundation, on the one hand, and the College, on the other, for loss, damage, injury or death arising out of the docking, mooring, use or possession of the Vessel shall be determined as follows: I-639941.3 2 (a) The College shall be solely responsible for, and shall indemnify and hold wholly harmless the City, the Foundation, and their respective agents, employees, licensees, volunteers, servants, members, trustees, and officers from and against all loss, cost, damage and expense, including reasonable attorney fees and litigation costs, arising from death, personal injury, or loss of or damage to property, which occurs during the docking, mooring, or use of the Vessel by the College, or by its teachers, instructors, employees, students, or licensees, or by any other person, including any member of the crew, who is on or about the Vessel in connection with its use by or on behalf of the College, whether or not negligence or fault on the part of the Foundation or the City may have caused or contributed to such loss, damage, injury or death. (b) As between the Foundation and the College, the Foundation shall be solely responsible for, and shall indemnify and hold wholly harmless the College, and its agents, employees, teachers, instructors, students, and licensees, from and against all loss, cost, damage and expense, including reasonable attorney fees and litigation costs, arising from death, personal injury, or loss of or damage to property, which occurs during the docking, mooring, or use of the Vessel by the Foundation, or by its agents, employees, volunteers, licensees, trustees, or officers, or by any other person, including the crew, who is on or about the Vessel in connection with its use by or on behalf of the Foundation, whether or not negligence or fault on the part of the College may have caused or contributed to such loss, damage, injury or death. As between the City and the College, the City shall be solely responsible for and, (i) to the extent permitted by law without waiving its sovereign immunity and (ii) additionally, to the extent the loss, damage, injury or death is not covered by insurance secured by the Foundation under paragraphs 4 and 5 of this MOU, the City shall indemnify and hold wholly harmless the College, and its agents, employees, teachers, instructors, students, and licensees for all loss, cost, damage and expense arising from death, personal injury, or loss of or damage to property, which occurs during the docking, mooring, or use of the Vessel by the City or by its agents, employees, volunteers, licensees, trustees, or officers, or by any other person, including the crew, who is on or about the Vessel in connection with its use by or on behalf of the City. (c) Notwithstanding any other provision of this paragraph 10, the College, on the one hand, and the City and the Foundation, on the other, shall be jointly responsible for, and shall equally share (as between the College on the one hand, and the Foundation and the City, on the other) the responsibility for all loss, cost, expense, and liability, arising from death, personal injury, or loss of or damage to property, including the Vessel and the property of the parties hereto, which arises or occurs from any cause while the Vessel is being used jointly by the College and the Foundation, or by the College and the City. 11. The Vessel will be available for use by the College (i) on reasonable advance notice to the City, and (ii) whenever it is not needed by the Aquarium. The Foundation and the Staff of the Aquarium shall make every reasonable effort, in good faith, to accommodate requests by the College to use the Vessel, and shall deny any such request only when scheduling conflicts cannot be satisfactorily resolved. In the event that the staff of the Aquarium and the staff of the College are unable to agree on a request by the College to use the Vessel, the Director of the Aquarium shall decide the matter and her decision shall be final. Notwithstanding any provision in this MOU to the contrary, the City, acting through the Director of the Aquarium or her designee, I-639941.3 3 reserves the right, in its sole discretion, to cancel or postpone the College's scheduled use of the Vessel. 12. This MOU may not be terminated, except for a violation of its terms, for one year following the date the Vessel is delivered to the Foundation at the Aquarium's docks in the City. Thereafter, any party may terminate the MOU for any reason upon giving sixty days prior written notice to the other parties of its intent to do so; provided, that if this MOU is terminated by the Foundation or by the City for any cause other than a breach of the terms of this MOU by the College, the Foundation shall pay to the College a sum equal to the fair market value of the College's financial interest in the Vessel at the time of termination. In the event of termination of this MOU for any cause, any equipment added to the Vessel at the request of the College, and that can be removed without damage to the Vessel, may be removed by the College, at its sole expense, within a reasonable time, upon reasonable advance notice to the Foundation and the City. Any equipment added or installed upon the Vessel at the request of the College that cannot be removed without damage to the Vessel, shall become the sole property of the Foundation upon termination of this MOU. Termination of this MOU shall have no effect on the liabilities of any party accruing prior to the date of termination. 13. Any notice required by this MOU to be given to the Foundation shall be given to the President, the Virginia Aquarium & Marine Science Center Foundation, Inc. 717 General Booth Boulevard, Suite 1, Virginia Beach, Virginia, 23451 with a copy to the Director, the Virginia Aquarium & Marine Science Center at the same address. Notices to the City shall be sent to the City Manager, Building 1, Municipal Center, Virginia Beach, Virginia, 23456. Any notice required by this MOU to be given to the College shall be given to Dr. Elizabeth Malcolm, Assistance Professor of Ocean and Atmospheric Sciences, Virginia Wesleyan College, 1584 Wesleyan Drive, Norfolk, Virginia, 23502 or to her successor. As evidence of their agreement to the tenses and conditions set forth herein, the parties affix their authorized signatures hereto: I-639941.3 4 THE CITY OF VIRGINIA BEACH BY: City Manager/Authorized Designee THE VIRGINIA AQUARIUM & MARINE SCIENCE CENTER FOUNDATION, INC. BY: ITS: VIRGINIA WESLEYAN COLLEGE By: ITS: Approved as to Content: Museums & Cultural Arts Approved as to Legal Sufficiency: City Attorney's Office Approved as to Legal Sufficiency: Counsel for the Foundation I-639941.3 5 NEW L'm S RELEASE 717 General Booth Blvd. Virginia Beach, VA 23451 V I R G I NIA AQUARIUM A .-- lc-c� 1-17- FOR MORE INFORMATION: Joan Barns Virginia Aquarium 1757.437.6215 1 jmbams@VirginiaAquarium.com April 4, 2005 Virginia Aquarium & Marine Science Center and Virginia Wesleyan College Announce Partnership with New Research Vessel (Virginia Beach, VA) — In recognition of the American Zoo & Aquarium Association (AZA) "Wonders of Water" national awareness campaign, the Virginia Aquarium & Marine Science Center and Virginia Wesleyan College (VWC) announced at a special ceremony held at the Aquarium April 1 a unique partnership. This collaboration will further research and conservation of Virginia's waters and the marine animals that make it their home. Officials from both organizations unveiled a rendering of a 42 ft research and education vessel that will be used by the VWC Department of Ocean and Atmospheric Science faculty and students as well as the Virginia Aquarium Stranding Team. The vessel will enhance Aquarium operations and activities, including collections, stranding response, research, release of rehabilitated animals and educational programming. At least seven VWC classes will use the research vessel for field trips including oceanography, marine biology, ecology, environmental chemistry, and environmental geology. "What better classroom could you have than the Chesapeake Bay?" said VWC Assistant Professor Ocean and Atmospheric Science Elizabeth Malcom, Ph.D. "Students will be collecting marine organisms, sediment and water samples themselves with research quality equipment giving them invaluable hands-on experience. We also plan to use the vessel to expand research opportunities available to students who work independently with a faculty mentor. And we hope to begin new scientific collaborations between the college and the Aquarium. By joining these research efforts, our students can help to solve real problems, contributing to our knowledge of the ocean environment." Page 2. Aquarium & VWC Research Vessel Aquarium Director of Research and Conservation Mark Swingle said, "We are excited about our partnership with VWC and it resulting in a research vessel that will allow us to collect animals and explore parts of Virginia waters that we never could before. More importantly, this vessel represents our continued dedication and commitment to studying the precious marine life that lives off our coast and how human impact effects everyone." The Chesapeake Classic Boat will be custom made by Glass Boat Works Inc. of Exmore, VA. Its cost of nearly $300,000 will be equally shared by the Virginia Aquarium Foundation and VWC. Special features to support the needs of the research vessel include: • Expansive deck space, rear controls and dive support for aquatic animal collecting. • Tower, observation deck and full electronics will assist with marine mammal research. • Galley, v-berth and chart table will allow for short-term live aboard operations in coastal waters within a 500-mile range. During the announcement ceremony, Virginia Beach Mayor The Honorable Meyera E. Oberndorf unveiled a bright orange life ring that will be used on the vessel. In a symbolic gesture the mayor, along with Virginia Aquarium Executive Director Lynn Clements, Virginia Aquarium Foundation President Donald H. Patterson, Jr., VWC College President Billy Greer, Ph.D., Mr. Swingle, Dr. Malcom and invited guests, signed the life ring. The research vessel should take six months to build. The Virginia Aquarium is an accredited member of the AZA. The AZA "Wonders of Water' campaign encourages families to learn about and conserve water. The program aims to help people understand that from the air we breathe to the food we eat, people and animals all depend on the ocean for survival. In its 2004 final report, the U.S. Commission on Ocean Policy commended public aquariums for their important role in education the public about ocean issues. April is officially designated as Zoo and Aquarium Month. Chartered in 1961 and affiliated with the United Methodist Church, Virginia Wesleyan College is a small, private four-year liberal arts institution whose 300-acre campus borders Norfolk and Virginia Beach. tom.,.-..._ x-•-�'� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: $110,000,000 City of Virginia Beach Development Authority Public Facility Revenue Bonds, Series 2005A MEETING DATE: April 12, 2005 ■ Background: City Council through the Capital Improvement Program and Tax Increment Financing Program has authorized the financing of various public facilities (see project description) with the utilization of public facilities revenue bonds through the Va. Beach Development Authority (VBDA). The financing portion of the program costs totals $362.9 million. On September 9, 2003, VBDA issued the first series of these bonds for $165 million as was requested by City Council on August 26, 2003. To continue financing the costs of the projects it is now necessary to request that VBDA issue its Public Facility Revenue Bonds, Series 2005A in the amount not to exceed $110 million which includes a small refunding of approximately $10 million for the 1993 Refunding Certificates of Participation. ■ Considerations: As with the Series 2003A, the Series 2005A will be issued under the Master Agreement of Trust with a Second Supplemental Agreement. Under the plan of financing a First Supplemental Support Agreement between VBDA and the City will outline the City's annual payments to VBDA in amounts sufficient to pay the debt service on the 2005A bonds. The bonds will be sold, electronically, by competitive bid on May 10, 2005, and on such terms as shall be satisfactory to the City Manager, provided that the bonds shall have a true interest cost not to exceed 6.5%. The actions of the City Manager shall be conclusive and no further action shall be necessary on the part of City Council. The final terms of the bond sale will be provided to City Council. VBDA will review this issue for approval at its meeting on April 21sc ■ Public Information: Public information will be handled through the normal Council agenda process. The bond authorization was part of the public information process of the CIP. In addition, the Resolution authorizes the distribution of the Preliminary Official Statement for marketing purposes. Also, a Notice of Sale will be placed in The Bond Buyer. ■ Alternatives: There are no alternative funding sources at this time. This request follows previously approved CIPs. in Recommendations: The enclosed Resolution approving a plan of Financing with VBDA and authorizing the execution of various financing documents associated with the Plan is recommended for approval by City Council. ■ Attachments: Project Description Draft of Second Supplemental Trust Agreement Resolution Draft of First Supplemental Support Agreement Draft of Preliminary Official Statement Recommended Action: Adopt resolution. Submitting Department/Agency: Financee' City Manager' anage ,� , THE PROJECTS Generally. The Projects to be financed in whole or in part with the proceeds of the Series 2005A Bonds have been authorized by City Council either through the City's six -year Capital Improvement Program ("CIP") or through tax -increment financing programs. The CIP is revised annually and approved by City Council in conjunction with its adoption of the City's annual operating budget. For a more detailed discussion of the CIP, see the subsection "Capital Improvement Program" in Appendix A. The Projects approved in the CIP include the Convention Center Replacement, the Virginia Marine Science Museum parking project, the Pavilion Theater Replacement Project, the Open Space Site Acquisition program and the Thirty - First Street Parking Garage. The Ninth Street Parking Garage was approved as part of the current CIP on February 8, 2005. The Projects authorized under tax -increment financing programs are the Town Center Garage Block 10 and the Town Center Garage Block 12. At the times these projects were included in either the CIP or in a tax -increment financing program, City Council also addressed the need to ensure that adequate revenues would be available to the City to undertake these significant projects. With respect to the Convention Center Replacement, the Virginia Marine Science Museum parking project, the Pavilion Theater Replacement Project and the Open Space Site Acquisition program that were initially approved in the Fiscal Year 2001-02 CIP, City Council increased certain taxes that are projected to be sufficient to pay for such projects. The tax increases of 2.5% on the hotel tax (total tax of 8%, effective November 1, 2001); 1% on the restaurant tax (total tax of 5.5%, effective July 1, 2001); and 5 cents on a pack of cigarettes (effective July 1, 2001). As of June 30, 2004, these increased taxes have generated an aggregate of $25,168,425 in additional revenue to support the costs of these projects. With respect to the two Town Center Parking Garage projects and the other public infrastructure facilities to be undertaken by the Authority and the City in the Town Center of Virginia Beach, the City created the Central Business District - South tax increment financing district. The tax increment revenues and other available revenues derived from this TIF district are anticipated to be sufficient to pay the costs of the public parking garages and the other public infrastructure facilities without resorting to a special service district tax that also could be levied in a Town Center special service district. As of June 30, 2004, $3,267,462 in tax increment revenues have been generated since this TIF district was created. With respect to the Thirty -First Street Parking Garage project located at the oceanfront in the City's resort area, the City will charge for parking in the garage. Based on the projected use of the facility, it is anticipated that the parking revenues and increased revenues from sales, personal property, hotel and restaurant taxes and business licenses that result from the Thirty - First Street hotel and retail development will be sufficient to pay for the operations of the garage including debt service over time. The remaining projects (Ninth Street Parking Garage, Emergency Communications Operation Center, Revenue Assessment and Collection System, City Human Resource Payroll System, Communications Infrastructure Replacement and Fire Apparatus Equipment), representing less than fifteen percent of the currently projected total public facility revenue bond program fundings, will receive General Fund support from existing revenue sources. Description of the Projects. The aggregate cost of the Projects currently is estimated to be approximately $448.5 million. The City currently plans to finance approximately $362.9 million of these costs through the Authority's issuance of its public facility revenue bonds in several series. The Series 2003A Bonds were the first series issued under this plan, and the Series 2005A Bonds are the second series to be so issued. The remaining costs of Projects (approximately $85.6 million) will come from other funding sources, including state and federal funding, sale of property, general obligation bonds, General Fund appropriations and various fund balances, pay-as-you-go funding and private contributions. Prospective purchasers of the Series 2005A Bonds should note that the CIP is a six -year program and the funding sources and amounts are subject to modification over time at the discretion of City Council. The following sets forth brief descriptions of the Projects to be financed in whole or in part with the proceeds of the Series 2005A Bonds: Convention Center Replacement - This project provides for the replacement and relocation of the existing pavilion convention center on the same site. It will provide for approximately 150,000 square feet of exhibit hall, 25,000 square feet of meeting rooms and 32,000 square feet of ballroom space. Total estimated cost of this project is approximately $206,100,000. Thirty -First Street Parking Garage - This project is for the construction of an approximate 1,000 space parking garage, 26,000 square feet of retail space, a pedestrian bridge from the garage to a proposed hotel to be developed on the oceanfront and a public park adjacent to the hotel. Total estimated cost of this project is $31,508,684. Town Center Garage Block 10 - This project is for the construction of an approximate 840 space parking garage located in the Town Center district of the City. Total estimated cost of this project is $13,500,000. For a further discussion of the Town Center Project, see "Tax Increment Financing" and "Other Long -Term Obligations" in the section "City Indebtedness and Capital Plan" in Appendix A. Town Center Garage Block 12 - This project is for the construction of an approximate 305 space parking garage located in the Town Center district of the City. Total estimated cost of this project is $8,300,000. For a further discussion of the Town Center Project, see "Tax Increment Financing" and "Other Long -Term Obligations" in the section "City Indebtedness and Capital Plan" in Appendix A. Open Space Site Acquisition - This project provides for the acquisition of land for preservation and/or recreational purposes. Total estimated cost of this project is $51,840,000. Ninth Street Parking Garage - This project is for the acquisition of an existing parking garage in the City's oceanfront area. The 212,910-square foot garage has 853 parking spaces on 4 levels. The City is purchasing 664 spaces on levels 2 through 4. Total estimated cost of this project is $9,750,000. Virginia Marine Science Museum Parking - This project will provide a 500 space parking lot across the road from the museum and will address the safe crossing of pedestrians from the parking area to the museum. Total estimated cost of this project is $3,000,000. 2 Emergency Communications Operation Center - This project is for the design and construction of the new Emergency Communications Center and Emergency Operation Center, to be located in the Municipal Center, on the north side of the intersection of Princess Anne Road and James Madison Boulevard, across the street from the Public Safety Building. Total estimated cost of this project is $10,456,000. Revenue Assessment and Collection System - This project provides for a comprehensive, fully integrated tax system to replace the computer systems currently used to support tax revenue assessment and collection. This is a joint project of the Commissioner of Revenue, City Treasurer and Real Estate Assessor. Total estimated cost of this project is $11,095,900. Pavilion Theater Replacement - This project replaces the current 1,000 seat Pavilion Theater with a new theater at the Town Center and includes parking. Total estimated cost of this project is $50,000,000. City Human Resource Payroll System - This project replaces the City's ten year old payroll system with a new information system utilizing current network infrastructure. Total estimated cost of this project is $10,283,106. Communications Infrastructure Replacement - This project will replace various components of the public safety communications infrastructure related to equipment associated with receiving, dispatching, transponding and answering public safety calls. Total estimated cost of this project is $24,850,000. Fire Apparatus Equipment - This project funds replacement of heavy equipment fire apparatus that costs over $50,000 and have a useful life of over ten years. Total estimated cost of this project is $17,870,000. 3 RESOLUTION APPROVING A PLAN OF FINANCING WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, APPROVING CERTAIN DOCUMENTS PREPARED IN CONNECTION WITH SUCH FINANCING AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE SAME WHEREAS, the City of Virginia Beach, Virginia (the "City"), desires to undertake, in connection with the City of Virginia Beach Development Authority (the "Authority"), the financing of various public facilities from time to time, including, the replacement of the Pavilion Theater and the Convention Center, the construction of a parking facility for the Virginia Marine Science Museum, Open Space Site acquisition, construction of an Emergency Communications Operations Center, the construction of the Thirty -First Street parking garage, acquisition of the Ninth Street parking garage, the construction of the Town Center Block 10 and 12 garages, acquisition of a Revenue Assessment and Collection System and a City/School Human Resource Payroll System and the replacement of certain Communications Infrastructure and Fire Apparatus Equipment (collectively, the "2005A Capital Projects"); and WHEREAS, on June 24, 1993, there were issued $36,700,000 Refunding Certificates of Participation Evidencing Direct and Proportionate Interest of Owners Thereof in Payments to be Made by the City of Virginia Beach, Virginia, under a Real Property Lease Agreement (the "1993 Refunding Certificates"), the proceeds of which were used to refund (a) the 1987 Certificates of Participation in a Real Property Lease in the outstanding principal amount of $1,900,000 and (b) the 1990 Certificates of Participation in a Real Property Lease in the outstanding principal amount of $30,390,000; WHEREAS, it appears that the City can effect considerable savings by undertaking a refunding of a portion of the 1993 Refunding Certificates maturing on September 1 in the years 2005, 2006, 2007 and 2010 in the outstanding principal amount of $9,600,000 (the "Refunded Certificates" and, such refunding, together with the 2005A Capital Projects, the "2005A Project"): WHEREAS, the Authority, pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"), under which it is created, is authorized to acquire, improve, maintain, equip, own, lease and dispose of "Authority facilities," as defined in the Act, to finance or refinance such facilities, to issue its revenue bonds, notes and other obligations from time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and WHEREAS, in furtherance of the purposes of the Act, the City requests the Authority to undertake the 2005A Project for the benefit of the City and to issue its Public Facility Revenue Bonds, Series 2005A, in the maximum aggregate principal amount not to exceed $110,000,000 (the "Bonds") to finance costs incurred or to be incurred in connection with the 2005A Project and the costs of issuing the Bonds; and WHEREAS, there have been presented to this meeting drafts of the following documents (the "Documents"), proposed in connection with the undertaking of the 2005A Project and the issuance and sale of the Bonds: (a) Second Supplemental Agreement of Trust draft dated April 4, 2005 (the "Second Supplemental Agreement"), supplementing the Agreement of Trust dated as of September 1, 2003, as previously supplemented, including the form the Bonds (collectively, the "Trust Agreement"), each between the Authority and Wachovia Bank, National Association, as trustee (the "Trustee"), pursuant to which the Bonds are to be issued and which is to be acknowledged and consented to by the City; (b) First Supplemental Support Agreement draft dated April 4, 2005, supplementing and amending the Support Agreement dated as of September 1, 2003 (the "Support Agreement"), each between the Authority and the City pursuant to which the City will make annual payments to the Authority in amounts sufficient to pay the principal of and interest on the Bonds; (c) Preliminary Official Statement draft dated April 4, 2005, of the Authority relating to the public offering of the Bonds (the "Preliminary Official Statement"); and (d) Continuing Disclosure Agreement draft April 4, 2005, pursuant to which the City agrees to undertake certain continuing disclosure obligations with respect to the Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. The following plan for financing the 2005A Project is hereby approved. The Authority will issue the Bonds in a maximum aggregate principal amount not to exceed $110,000,000. The Authority will use the proceeds of the Bonds to finance the costs of the 2005A Project and the costs of refunding the Refunded Certificates and issuing the Bonds. Pursuant to the Support Agreement, the City will make Annual Payments and Additional Payments (as each is defined in the Support Agreement) to the Authority in amounts sufficient to amortize the Bonds and to pay the fees or expenses of the Authority and the Trustee. The obligation of the Authority to pay principal of and premium, if any, and interest on the Bonds will be limited to annual payments and additional payments received from the City. The Bonds will be secured by an assignment of the Annual Payments and certain Additional Payments due under the Support Agreement, all for the benefit of the holders of the Bonds. The obligation of the City to make Annual Payments and Additional Payments will be subject to the City Council making annual appropriations in amounts sufficient for such purposes. The plan of financing for the 2005A Project shall contain such additional requirements and provisions as may be approved by the City. 2. The City Council, while recognizing that it is not empowered to make any binding commitment to make appropriations beyond the current fiscal year, hereby states its intent to make annual appropriations in future fiscal years in amounts sufficient to make all payments due 2 under the Support Agreement and hereby recommends that future City Councils do likewise during the term of the Support Agreement. 3. The City Manager is hereby authorized and directed to execute the Documents (except for the Preliminary Official Statement), which shall be in substantially the forms submitted to this meeting, which are hereby approved, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager, his execution to constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. 4. (a) In making completions to the Support Agreement, the City Manager, in collaboration with Government Finance Associates, Inc. and Government Finance Group, the City's financial advisors (the "Financial Advisors"), shall provide for Annual Payments in amounts equivalent to the payments on the Bonds, which shall be sold to the purchaser thereof on terms as shall be satisfactory to the City Manager; provided that the Annual Payments shall be equivalent to the Bonds maturing in installments ending not later than in 2025; having a true or "Canadian" interest cost not exceeding 6.5% (taking into account any original issue discount); and being sold to the purchaser thereof at a price not less than 99% of the aggregate principal amount thereof (without taking into account any original issue discount or premium). (b) The Bonds shall be sold by competitive bid in the principal amount determined by the City Manager, in collaboration with the Financial Advisors, and the City Manager shall receive bids for the Bonds and award the Bonds to the bidder providing the lowest "true" or "Canadian" interest cost, subject to the limitations set forth in the paragraph above. Following the sale of the Bonds, the City Manager shall file a certificate with the City Clerk setting forth the final terms of the Bonds. The actions of the City Manager in approving the terms of the Bonds shall be conclusive, and no further action shall be necessary on the part of the City Council. 5. The Preliminary Official Statement in the form presented to this meeting is approved with respect to the information contained therein pertaining to the City. The purchaser of the Bonds is authorized to distribute to prospective purchasers of the Bonds the Preliminary Official Statement in form deemed to be "near final," within the meaning of Rule 15c2-12 of the Securities and Exchange Commission (the "Rule"), with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager. Such distribution shall constitute conclusive evidence that the City has deemed the Preliminary Official Statement to be final as of its date within the meaning of the Rule, with respect to the information therein pertaining to the City. The City Manager is authorized and directed to approve such completions, omissions, insertions and other changes to the Preliminary Official Statement that are necessary to reflect the terms of the sale of the Bonds, determined as set forth in paragraph 4, and the details thereof and that are appropriate to complete it as an official statement in final form (the "Official Statement") and distribution thereof by the purchaser of the Bonds shall constitute conclusive evidence that the City has deemed the Official Statement final as of its date within the meaning of the Rule. 6. The City covenants that it shall not take or omit to take any action the taking or omission of which shall cause the Bonds to be "arbitrage bonds" within the meaning of Section 3 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and regulations thereunder, or otherwise cause interest on the Bonds to be includable in the gross income for Federal income tax purposes of the registered owners thereof under existing law. Without limiting the generality of the foregoing, the City shall comply with any provision of law that may require the City at any time to rebate to the United States of America any part of the earnings derived from the investment of the gross proceeds of the Bonds. The City shall pay from its legally available general funds any amount required to be rebated to the United States of America pursuant to the Code. 7. The City Manager is authorized and directed to determine which of the Refunded Certificates, if any, shall be refunded. The Refunded Certificates to be refunded, if any, are specifically and irrevocably called for redemption on September 1, 2005. The Second Supplemental Agreement shall provide for notice of redemption to be given in accordance with the trust agreement and the resolutions providing for the issuance of the Refunded Certificates to the registered owners of the Refunded Certificates. 8. In the event the City Manager determines that it is in the City's best interest that all or a portion of the Refunded Certificates should be refunded, the City Manager and the Director of Finance, or either of them, are authorized and directed to execute an escrow deposit agreement (the "Escrow Agreement") between the City and The Bank of New York, as successor trustee for the Refunded Certificates (the "Escrow Agent"). The Escrow Agreement shall be in the form approved by the City Manager, in collaboration with the City Attorney and the City's bond counsel, and shall provide for the deposit and investment of a portion of the proceeds of the Bonds for the defeasance of the Refunded Certificates. The execution of the Escrow Agreement by the City Manager or the Director of Finance shall constitute conclusive evidence of such official's approval of the Escrow Agreement. The Escrow Agreement shall provide for the irrevocable deposit of a portion of the proceeds of the Bonds (the "Refunding Portion") in an escrow fund which shall be sufficient, when invested in noncallable, direct obligations of the United States Government (the "Government Obligations"), to provide for payment of principal of and interest on the Refunded Certificates; provided, however, that such Bond proceeds shall be invested in such manner that none of the Bonds will be "arbitrage bonds" within the meaning of Section 148 of the Code. The Escrow Agent is authorized and directed to execute an initial subscription form for the purchase of the Government Obligations and such other contracts and agreements necessary to provide for the defeasance of the Refunded Certificates as are approved by the City Manager or the Director of Finance, in collaboration with the City Attorney and the City's bond counsel. 9. Any authorization herein to execute a document shall include authorization to deliver it to the other parties thereto and to record such document where appropriate. 10. All other acts of the City Manager, the Director of Finance and other officers of the City that are in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bonds, the refunding of the Refunded Certificates and the undertaking of the 2005A Project are hereby approved and ratified. 11. This Resolution shall take effect immediately. 4 SECOND SUPPLEMENTAL AGREEMENT OF TRUST between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee Dated as of , 2005 TABLE OF CONTENTS Parties.............................................................................................................................................. 1 Recitals.............................................................................................................................................1 GrantingClause...............................................................................................................................1 ARTICLE I SECOND SUPPLEMENTAL AGREEMENT Section 1.101. Authorization of Second Supplemental Agreement................................................2 Section1.102. Definitions................................................................................................................2 Section 1.103. Rules of Construction..............................................................................................3 ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2005A BONDS Section 1.201. Authorization of Series 2005A Bonds and Series 2005A Projects ..........................3 Section 1.202. Details of Series 2005A Bonds................................................................................4 Section 1.203. Form of Series 2005A Bonds...................................................................................5 Section 1.204. Securities Depository Provisions.............................................................................5 Section 1.205. Delivery of Series 2005A Bonds.............................................................................6 ARTICLE III REDEMPTION OF SERIES 2005A BONDS Section 1.301. Redemption Date and Price.....................................................................................6 Section 1.302. Selection of Series 2005A Bonds for Redemption..................................................6 Section 1.303. Notice of Redemption..............................................................................................6 ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2005A BONDS Section 1.401. Application of Proceeds of Series 2005A Bonds.....................................................6 ARTICLE V ESTABLISHMENT OF ACCOUNT Section 1.501. Series 2005A Project Account.................................................................................7 (i) ARTICLE VI SECURITY FOR SERIES 2005A BONDS Section 1.601. Security for Series 2005A Bonds.............................................................................7 ARTICLE VII MISCELLANEOUS Section 1.701. Limitations on Use of Proceeds...............................................................................7 Section 1.702. Limitation of Rights.................................................................................................8 Section1.703. Severability..............................................................................................................8 Section 1.704. Successors and Assigns............................................................................................8 Section1.705. Applicable Law........................................................................................................8 Section1.706. Counterparts.............................................................................................................8 Signatures.........................................................................................................................................8 Exhibit A - Form of Series 2003 Bond....................................................................................... A-1 This SECOND SUPPLEMENTAL AGREEMENT OF TRUST dated as of , 2005, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, having a corporate trust office in Richmond, Virginia, as trustee (in such capacity, together with any successor in such capacity, herein called the "Trustee"), provides: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Authority and the Trustee have entered into an Agreement of Trust dated as of September 1, 2003 (the "Master Agreement of Trust"), as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, pursuant to which the Authority has agreed to issue from time to time public facility revenue bonds or notes and use the proceeds thereof to finance costs incurred in connection with certain Projects (as hereinafter defined) for the benefit of the City of Virginia Beach, Virginia (the "City"); and WHEREAS, pursuant to a Trust Agreement dated as of October 1, 1987, as supplemented, between the City of Virginia Beach, Virginia, First Union Commercial Corporation and The Bank of New York, as successor trustee, there were issued on June 24, 1993, $36,700,000 Refunding Certificates of Participation Evidencing Direct and Proportionate Interest of Owners Thereof in Payments to be Made by the City of Virginia Beach, Virginia, under a Real Property Lease Agreement (the "1993 Refunding Certificates', the proceeds of which were used to refund (a) the 1987 Certificates of Participation in a Real Property Lease in the outstanding principal amount of $1,900,000 and (b) the 1990 Certificates of Participation in a Real Property Lease in the outstanding principal amount of $30,390,000; WHEREAS, it appears that the City can effect considerable savings by undertaking a refunding of a portion of the 1993 Refunding Certificates maturing on September 1 in the years 2005, 2006, 2007 and 2010 in the outstanding principal amount of $9,600,000; WHEREAS, within the limitations of and in compliance with the Master Agreement of Trust, the City has requested the Authority to issue a series of public facility revenue bonds to finance the costs of the Series 2005A Projects (as hereinafter defined); and WHEREAS, the Authority has agreed to issue the Series 2005A Bonds (as hereinafter defined) in the aggregate principal amount of $ , secured by a pledge of the revenues and receipts derived from a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of , 2005 (the "Support Agreement"), between the Authority and the City, and the City has agreed, subject to the annual appropriation by the Council of the City, to make annual payments that will be sufficient to pay the principal of and premium, if any, and interest on such public facility revenue bonds as the same shall become due; and WHEREAS, the Authority has taken all necessary action to make the Series 2005A Bonds, when authenticated by the Trustee and issued by the Authority, valid and binding limited obligations of the Authority and to constitute this Second Supplemental Agreement a valid and binding agreement authorizing and providing for the details of the Series 2005A Bonds; NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereto agree as follows: ARTICLE I SECOND SUPPLEMENTAL AGREEMENT Section 2.101. Authorization of Second Supplemental Agreement. This Second Supplemental Agreement is authorized and executed by the Authority and delivered to the Trustee pursuant to and in accordance with Articles III and X of the Master Agreement of Trust. All terms, covenants, conditions and agreements of the Master Agreement of Trust shall apply with full force and effect to the Series 2005A Bonds and to the holders thereof, except as otherwise provided in this Second Supplemental Agreement. Section 2.102. Definitions. Except as otherwise defined in this Second Supplemental Agreement, words defined in the Master Agreement of Trust are used in this Second Supplemental Agreement with the meanings assigned to them in the Master Agreement of Trust. In addition, the following words shall have the following meanings unless a different meaning clearly appears from the context: "Escrow Agreement" shall mean the Escrow Deposit Agreement dated , 2005, between the City and The Bank of New York. "Letter of Representations" shall mean the Blanket Letter of Representations dated July 11, 1997, from the Authority to the Securities Depository and any amendments thereto or successor agreements between the Authority and any successor Securities Depository with respect to the Series 2005A Bonds. Notwithstanding any provision of the Master Agreement of Trust, including Article X regarding amendments, the Trustee may enter into any such amendment or successor agreement without the consent of Bondholders. "Project" or "Projects" shall have the meaning set forth in the Support Agreement. "Refunded Certificates" shall mean the $36,700,000 Refunding Certificates of Participation Evidencing Direct and Proportionate Interest of Owners Thereof in Payments to be Made by the City of Virginia Beach, Virginia, under a Real Property Lease Agreement maturing on September 1 in the years 2005, 2006, 2007 and 2010, issued pursuant to a Trust Agreement dated as of October 1, 1987, as supplemented, between the City of Virginia Beach, Virginia, First Union Commercial Corporation and The Bank of New York, as successor trustee. "Second Supplemental Agreement" shall mean this Second Supplemental Agreement of Trust between the Authority and the Trustee, which supplements and amends the Master Agreement of Trust. 2 "Securities Depository" shall mean The Depository Trust Company, a corporation organized and existing under the laws of the State of New York, and any other securities depository for the Series 2005A Bonds appointed pursuant to Section 1.204, and their successors. "Series 2005A Bonds" shall mean the Authority's $ Public Facility Revenue Bonds, Series 2005A, authorized to be issued pursuant to this Second Supplemental Agreement. "Series 2005A Projects" shall mean have the meaning set forth in the Support Agreement. "Series 2005A Project Account" shall mean the Series 2005A Project Account established in Section 2.501 of this Second Supplemental Agreement. Section 2.103. Rules of Construction. The following rules shall apply to the construction of this Second Supplemental Agreement unless the context otherwise requires: (a) Words importing the singular number shall include the plural number and vice versa. (b) Words importing the redemption or calling for redemption of Series 2005A Bonds shall not be deemed to refer to or connote the payment of Series 2005A Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this Second Supplemental Agreement. (d) The headings herein and Table of Contents to this Second Supplemental Agreement herein are solely for convenience of reference and shall not constitute a part of this Second Supplemental Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to payment of Series 2005A Bonds are references to payment of principal of and premium, if any, and interest on the Series 2005A Bonds. ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2005A BONDS Section 2.201. Authorization of Series 2005A Bonds and Series 2005A Projects. There are hereby authorized to be issued the Series 2005A Bonds in an aggregate principal amount of $ to (a) finance the Cost of the Series 2005A Projects (b) refund the Refunded Certificates and (c) finance costs incident to refunding the Refunded Certificates and issuing the Series 2005A Bonds, in accordance with Article IV hereof. Kj Section 2.202. Details of Series 2005A Bonds. (a) The Series 2005A Bonds shall be designated "Public Facility Revenue Bonds, Series 2005A," shall be dated , 2005, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof and shall be numbered R-1 upward. The Series 2005A Bonds shall bear interest at rates, payable semiannually on each and , beginning , 2005, and shall mature in installments on in years and amounts, as follows: Year Amount Rate Year Amount Rate (b) Each Series 2005A Bond shall bear interest (a) from its date, if such Series 2005A Bond is authenticated prior to the first interest payment date, or (b) otherwise from the interest payment date that is, or immediately precedes, the date on which such Series 2005A Bond is authenticated; provided, however, that if at the time of authentication of any Series 2005A Bond payment of interest is in default, such Series 2005A Bond shall bear interest from the date to which interest has been paid. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (c) Principal of the Series 2005A Bonds shall be payable to the registered holder(s) upon the surrender of Series 2005A Bonds at the corporate trust office of the Trustee in Richmond, Virginia. Interest on the Series 2005A Bonds shall be payable by check or draft mailed to the registered owners at their addresses as they appear on the registration books kept by the Trustee on the [15th] day of the month preceding each interest payment date; provided, however, if the Series 2005A Bonds are registered in the name of a Securities Depository or its nominee as registered holder or at the option of a registered holder(s) of at least $1,000,000 of Series 2005A Bonds, payment shall be made by wire transfer pursuant to the wire instructions received by the Trustee from such registered holder(s). If the nominal date for making any payment on the Series 2005A Bonds is not a Business Day, the payment may be made on the next Business Day with the same effect as if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest shall be payable in lawful money of the United States of America. 4 Section 2.203. Form of Series 2005A Bonds. The Series 2005A Bonds shall be in substantially the form set forth in Exhibit A, with such appropriate variations, omissions and insertions as are permitted or required by the Master Agreement of Trust and this Second Supplemental Agreement. Section 2.204. Securities Depository Provisions. Initially, one certificate for each maturity of the Series 2005A Bonds will be issued and registered to the Securities Depository, or its nominee. The Authority shall enter into a Letter of Representations relating to a book -entry system to be maintained by the Securities Depository with respect to the Series 2005A Bonds. In the event that (a) the Securities Depository determines not to continue to act as a securities depository for the Series 2005A Bonds by giving notice to the Trustee and the Authority discharging its responsibilities hereunder or (b) the Authority, at the direction of the City, determines (1) that beneficial owners of Series 2005A Bonds shall be able to obtain certificated Series 2005A Bonds or (2) to select a new Securities Depository, then the Trustee shall, at the direction of the Authority, attempt to locate another qualified securities depository to serve as Securities Depository or authenticate and deliver certificated Series 2005A Bonds to the beneficial owners or to the Securities Depository participants on behalf of beneficial owners substantially in the form provided for in Exhibit A; provided, however, that such form shall provide for interest on the Series 2005A Bonds to be payable (i) from , 2005, if it is authenticated prior to , 2005, or (ii) otherwise from the or that is, or immediately precedes, the date on which it is authenticated (unless payment of interest thereon is in default, in which case interest on such Series 2005A Bonds shall be payable from the date to which interest has been paid). In delivering certificated Series 2005A Bonds, the Trustee shall be entitled to rely conclusively on the records of the Securities Depository as to the beneficial owners or the records of the Securities Depository participants acting on behalf of beneficial owners. Such certificated Series 2005A Bonds will be registrable, transferable and exchangeable as set forth in Sections 204 and 205 of the Master Agreement of Trust. So long as there is a Securities Depository for the Series 2005A Bonds (A) it or its nominee shall be the registered holder(s) of the Series 2005A Bonds, (B) notwithstanding anything to the contrary in this Second Supplemental Agreement, determinations of persons entitled to payment of principal and interest, transfers of ownership and exchanges and receipt of notices shall be the responsibility of the Securities Depository and shall be effected pursuant to rules and procedures established by such Securities Depository, (C) the Authority and the Trustee shall not be responsible or liable for maintaining, supervising or reviewing the records maintained by the Securities Depository, its participants or persons acting through such participants, (D) references in this Second Supplemental Agreement to registered holder(s) of the Series 2005A Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial owners of the Series 2005A Bonds and (E) in the event of any inconsistency between the provisions of this Second Supplemental Agreement, other than those set forth in this paragraph and the preceding paragraph, and the provisions of the Letter of Representations such provisions of the Letter of Representations shall control. E Section 2.205. Delivery of Series 2005A Bonds. The Trustee shall authenticate and deliver the Series 2005A Bonds when there have been filed with or delivered to it all items required by Section 303 of the Master Agreement of Trust. ARTICLE III REDEMPTION OF SERIES 2005A BONDS Section 2.301. Redemption Date and Price. The Series 2005A Bonds may not be called for redemption by the Authority except as follows: (a) The Series 2005A Bonds maturing on or after may be redeemed by the Authority, at the direction of the City, on or after , in whole or in part at any time (in increments of $5,000), at a redemption price of [100%] of the principal amount, or portion thereof, of Series 2005A Bonds to be redeemed plus interest accrued to the redemption date. Section 2.302. Selection of Series 2005A Bonds for Redemption. If less than all of the Series 2005A Bonds are called for redemption, the Series 2005A Bonds to be redeemed shall be selected by the Securities Depository or any successor securities depository pursuant to its rules and procedures or, if the book -entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Series 2005A Bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof. In selecting Series 2005A Bonds for redemption, each Series 2005A Bond shall be considered as representing that number of Series 2005A Bonds which is obtained by dividing the principal amount of such Series 2005A Bond by $5,000. If a portion of a Series 2005A Bond shall be called for redemption, a new Series 2005A Bond in principal amount equal to the unredeemed portion thereof shall be issued to the registered owner upon the surrender thereof. Section 2.303. Notice of Redemption. Notice of redemption of Series 2005A Bonds shall be given in the manner set forth in Section 402 of the Master Agreement of Trust. ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2005A BONDS Section 2.401. Application of Proceeds of Series 2005A Bonds. The proceeds of the Series 2005A Bonds ($ ) shall be paid to the Trustee and applied as follows: (a) $ , representing accrued interest on the Series 2005A Bonds, shall be deposited in the Interest Account in the Bond Fund; (b) $ shall be transferred to The Bank of New York and applied as set forth in the Escrow Agreement to refund the Refunded Certificates; and (c) $ shall be transferred to the City for deposit in the Series 2005A Project Account in the Project Fund. ARTICLE V ESTABLISHMENT OF ACCOUNT Section 2.501. Series 2005A Project Account. There shall be established within the Project Fund a special account entitled "Series 2005A Project Account." The portion of the proceeds of the Series 2005A Bonds specified in Section 1.401(b) shall be deposited by the City in the Series 2005A Project Account. Money in the Series 2005A Project Account shall be used in accordance with the provisions of Section 503 of the Master Agreement of Trust. ARTICLE VI SECURITY FOR SERIES 2005A BONDS Section 2.601. Security for Series 2005A Bonds. The Series 2005A Bonds shall be equally and ratably secured under the Master Agreement of Trust with the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, and any other series issued pursuant to Article III of the Master Agreement of Trust, without preference, priority or distinction of any Bonds over any other Bonds, except as provided in the Master Agreement of Trust. ARTICLE VII MISCELLANEOUS Section 2.701. Limitations on Use of Proceeds. The Authority intends that interest on the Series 2005A Bonds shall be excluded from gross income for Federal income tax purposes. The Authority covenants with the holders of the Series 2005A Bonds not to take any action that would adversely affect, and to take all action within its power necessary to maintain, the exclusion of interest on all Series 2005A Bonds from gross income for Federal income taxation purposes. 7 Section 2.702. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Second Supplemental Agreement or the Series 2005A Bonds is intended or shall be construed to give to any person other than the parties hereto and the holders of Series 2005A Bonds any legal or equitable right, remedy or claim under or in respect to this Second Supplemental Agreement or any covenants, conditions and agreements herein contained since this Second Supplemental Agreement and all of the covenants, conditions and agreements hereof are intended to be and are for the sole and exclusive benefit of the parties hereto and the holders of Bonds as herein provided. Section 2.703. Severability. If any provision of this Second Supplemental Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof and this Second Supplemental Agreement shall be construed and enforced as if such illegal provision had not been contained herein. Section 2.704. Successors and Assigns. This Second Supplemental Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 2.705. Applicable Law. This Second Supplemental Agreement shall be governed by the applicable laws of the Commonwealth of Virginia. Section 2.706. Counterparts. This Second Supplemental Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. IN WITNESS WHEREOF, the Authority and the Trustee have caused this Second Supplemental Agreement to be executed in their respective corporate names as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Chairman WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee CS Title Acknowledged and Consented To: CITY OF VIRGINIA BEACH, VIRGINIA, Title: 7 EXHIBIT A Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED R-1 REGISTERED UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY INTEREST RATE Public Facility Revenue Bond, Series 2005A MATURITY DATE REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DATED DATE 2005 CUSIP 92774G DOLLARS The City of Virginia Beach Development Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), for value received, hereby promises to pay upon surrender hereof at the principal corporate trust office of Wachovia Bank, National Association, Richmond, Virginia as trustee, or its successor in trust (the "Trustee"), under the Agreement of Trust (as hereinafter defined) solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon on each and , beginning , 2005, at the annual rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Interest is payable (a) from , 2005, if this bond is authenticated prior to , 2005, or (b) otherwise from the or that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the date to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the [15th] day of the month preceding each interest payment date on registration books kept by the Trustee; provided, however, that at the option of a registered owner of at least $1,000,000 of Bonds (as hereinafter defined), payment will be made by wire transfer pursuant to A-1 the most recent wire instructions received by the Trustee from such registered owner. If the nominal date for making any payment on this bond a Business Day (as hereinafter defined), the payment may be made on the next Business Day with the same effect as if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest are payable in lawful money of the United States of America. "Business Day" shall mean a day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any day on which banking institutions are authorized by law to close in the city in the Commonwealth of Virginia in which the Trustee has its principal corporate trust office. Notwithstanding any other provision hereof, this bond is subject to book -entry form maintained by The Depository Trust Company ("DTC"), and the payment of principal and interest, the providing of notices and other matters shall be made as described in the Authority's Letter of Representations to DTC. This bond is one of an issue of $ Public Facility Revenue Bonds, Series 2005A (the "Bonds"), authorized and issued pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. The Bonds are issued under and secured by an Agreement of Trust dated as of September 1, 2003, between the Authority and the Trustee, as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, and a Second Supplemental Agreement of Trust dated as of , 2005 (collectively, the "Agreement of Trust"). The Agreement of Trust assigns to the Trustee, as security for the Bonds, (a) the revenues and receipts derived from a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of , 2005 (collectively, the "Support Agreement"), each between the Authority and the City of Virginia Beach, Virginia (the "City"), and (b) the Authority's rights under the Support Agreement (except for the Authority's rights under the Support Agreement to the payment of certain fees and expenses and the rights to notices). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Authority and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. Additional bonds secured by a pledge of revenues and receipts derived from the City under the Support Agreement on a parity with the Bonds and the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, may be issued under the terms and conditions set forth in the Agreement of Trust. Terms not otherwise defined herein shall have the meaning assigned such terms in the Agreement of Trust. The Bonds are issued to (a) finance the acquisition, construction and equipping of various capital improvements for the City, (b) refund the $36,700,000 Refunding Certificates of Participation Evidencing Direct and Proportionate Interest of Owners Thereof in Payments to be Made by the City of Virginia Beach, Virginia, under a Real Property Lease Agreement maturing on September 1 in the years 2005, 2006, 2007 and 2010 (the "Refunded Certificates"), issued pursuant to a Trust Agreement dated as of October 1, 1987, as supplemented, between the City of Virginia Beach, Virginia, First Union Commercial Corporation and The Bank of New York, as successor trustee, and (c) pay costs incurred in refunding the Refunded Certificates and issuing the Bonds. Under the Support Agreement, the City has agreed to make payments that A-2 will be sufficient to pay the principal of and interest on the Bonds as the same shall become due in accordance with their terms and the provisions and the terms of the Agreement of Trust. The obligation of the City to make payments under the Support Agreement constitutes a current expense of the City, subject to annual appropriation by the Council of the City. The obligation of the City to make payments under the Support Agreement does not constitute a debt of the City within the meaning of any constitutional or statutory limitation nor a liability of or a lien or charge upon funds or property of the City beyond any fiscal year for which the City has appropriated moneys to make such payments. THE BONDS AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM REVENUES AND RECEIPTS DERIVED FROM THE CITY RECEIVED BY THE AUTHORITY UNDER THE SUPPORT AGREEMENT, AND FROM CERTAIN FUNDS, AND THE INVESTMENT INCOME THEREON, HELD UNDER THE AGREEMENT OF TRUST, WHICH REVENUES, RECEIPTS AND FUNDS HAVE BEEN PLEDGED AND ASSIGNED TO SECURE PAYMENT THEREOF. THE BONDS AND INTEREST THEREON SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY. NEITHER THE COMMONWEALTH OF VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO EXCEPT FROM THE REVENUES AND RECEIPTS PLEDGED AND ASSIGNED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COMMONWEALTH OF VIRGINIA, OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE AUTHORITY HAS NO TAXING POWER. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority in his individual capacity, and neither the Chairman of the Authority nor any officer thereof executing this Bond shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. The Bonds may not be called for redemption by the Authority except as provided herein and in the Agreement of Trust. Optional Redemption. The Bonds maturing on or before , will not be subject to optional redemption before their respective maturity dates. The Bonds maturing on or after , may be redeemed prior to their respective maturities on or after at the option of the Authority, at the direction of the City, in whole or in part at any time at a redemption price of [100%] of the principal amount, or portion thereof, of Bonds to be redeemed plus interest accrued to the redemption date. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the Authority. If less than all of the Bonds of any A-3 maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book -entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Trustee shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Such notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later that the redemption date or (2) the Authority retains the right to rescind such notice on or prior to the scheduled redemption date, and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this Bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon surrender hereof, or if the book -entry system is discontinued, to the registered owners of the Bonds. The registered owner of this Bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust or the Support Agreement, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds are issuable as registered bonds in the denomination of $5,000 and integral multiples thereof. Upon surrender for transfer or exchange of this Bond at the corporate trust office of the Trustee in Richmond, Virginia, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Trustee, the Authority shall execute, and the Trustee shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the Authority, except that the Trustee may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Trustee shall treat the registered owner as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner, except that A-4 interest payments shall be made to the person shown as holder on the [fifteenth] day of the month preceding each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this Bond have happened, exist and have been performed. This Bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Trustee shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach Development Authority has caused this Bond to be signed by its Chairman, its seal to be imprinted hereon and attested by its Secretary, and this Bond to be dated , 2005. (SEAL) Attest: Secretary CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY A-5 Chairman CERTIFICATE OF AUTHENTICATION Date Authenticated: This Bond is one of the Series 2005A Bonds described in the within mentioned Agreement of Trust. WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee LIM Authorized Officer A-6 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. A-7 (Signature of Registered Owner NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. FIRST SUPPLEMENTAL SUPPORT AGREEMENT between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and CITY OF VIRGINIA BEACH, VIRGINIA Dated as of 112005 NOTE: THIS FIRST SUPPLEMENTAL SUPPORT AGREEMENT HAS BEEN ASSIGNED TO, AND IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE UNDER AN AGREEMENT OF TRUST DATED AS OF SEPTEMBER 1, 2003, AS SUPPLEMENTED BY A FIRST SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF SEPTEMBER 1, 2003, AND A SECOND SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF , 2005, WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE TRUSTEE AT RICHMOND, VIRGINIA. TABLE OF CONTENTS Page Parties............................................................................................................................................... I Recitals............................................................................................................................................. I GrantingClauses..............................................................................................................................I ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section1.1 Definitions....................................................................................................................2 Section 1.2 Rules of Construction..................................................................................................3 ARTICLE II REPRESENTATIONS Section 2.1 Representations by Authority......................................................................................3 Section 2.2 Representations by City...............................................................................................4 ARTICLE III AGREEMENT TO ISSUE BONDS Section 3.1 Agreement to Issue Series 2005A Bonds.....................................................................5 ARTICLE IV PAYMENT OBLIGATIONS; MASTER SUPPORT AGREEMENT AMENDMENTS Section 4.1 Amounts Payable.........................................................................................................5 ARTICLE V PREPAYMENT AND REDEMPTION Section 5.1 Prepayment and Redemption.......................................................................................5 ARTICLE VI SERIES 2005A ARBITRAGE REBATE FUND Section 6.1 Series 2005A Arbitrage Rebate Fund..........................................................................6 Section6.2 Rebate Requirement.....................................................................................................6 Section 6.3 Calculation and Report of Rebate Amount..................................................................6 Section 6.4 Payment of Rebate Amount.........................................................................................6 Section 6.5 Reports by Trustee.......................................................................................................7 (i) Section 6.6 Disposition of Balance in Series 2005A Arbitrage Rebate Fund................................7 ARTICLE VII MISCELLANEOUS Section7.1 Severability..................................................................................................................8 Section 7.2 Successors and Assigns................................................................................................8 Section7.3 Counterparts.................................................................................................................8 Section7.4 Governing Law............................................................................................................8 Signatures.........................................................................................................................................9 Receipt...........................................................................................................................................10 Exhibit A - Schedule of Payments.............................................................................................. A-1 THIS FIRST SUPPLEMENTAL SUPPORT AGREEMENT dated as of , 2005, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and the CITY OF VIRGINIA BEACH, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "City"), provides: WITNESSETH: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Act authorities the Authority to acquire, improve, maintain, equip, own, lease and dispose of "Authority facilities," as defined in the Act, to finance or refinance and lease facilities for use by, among others, a city, to issue its revenue bonds, notes and other obligations from time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and; and WHEREAS, the City desires to undertake a program of financing or refinancing the acquisition, construction and equipping of various public facilities that the City determines to undertake from time to time; and WHEREAS, in furtherance of the purposes of the Act, the City has requested the Authority to undertake one or more series of Projects (as defined in the Support Agreement, as hereinafter defined), and the Authority has determined to issue from time to time pursuant to the terms of an Agreement of Trust dated as of September 1, 2003 (the "Master Agreement of Trust"), between the Authority and Wachovia Bank, National Association, Richmond, Virginia, as trustee (the "Trustee"), as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, and a Second Supplemental Agreement of Trust dated as of , 2005, between the Authority and the Trustee (collectively, the "Agreement of Trust"), its public facility revenue bonds and to loan the proceeds thereof to the City to finance or refinance costs incurred'in connection with such Projects and costs of issuing such bonds; and WHEREAS, in furtherance of the purposes of the Act, the Authority and the City have entered into a Support Agreement dated as of September 1, 2003 (the "Master Support Agreement"), pursuant to which the Authority has agreed to loan from time to time such proceeds to the City, and the City has agreed to repay such loans, subject to appropriation by the City Council from time to time of sufficient moneys for such purpose; and WHEREAS, within the limitations and in compliance with the Agreement of Trust, the City has requested the Authority to issue a series of Bonds in the aggregate principal amount of $ (the "Series 2005A Bonds") and to loan such proceeds to the City to finance or refinance the costs of the Series 2005A Projects (as hereinafter defined) pursuant to the terms of this First Supplemental Support Agreement; and WHEREAS, all acts, conditions and things required by law to happen, exist and be performed precedent to and in connection with the execution of and entering into this First Supplemental Support Agreement have happened, exist and have been performed in regular and due time and in form and manner as required by law, and the parties hereto are now duly empowered to execute and enter into this First Supplemental Support Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other valuable consideration, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions. Unless otherwise defined in this First Supplemental Support Agreement, all words used herein shall have the meanings assigned to such terms in the Agreement of Trust or the Master Support Agreement. The following words as used in this First Supplemental Support Agreement shall have the following meanings unless a different meaning clearly appears from the context: "Agreement of Trust" shall mean the Agreement of Trust dated as of September 1, 2003, as previously supplemented, and as supplemented by the Second Supplemental Agreement of Trust. "Basic Agreements" shall mean the Agreement of Trust and the Support Agreement. "Support Agreement" shall mean the Master Support Agreement as supplemented by this First Supplemental Support Agreement. "First Supplemental Support Agreement" shall mean this Supplemental Support Agreement dated as of , 2005, between the Authority and the City, which supplements the Master Support Agreement. "Master Support Agreement" shall mean the Support Agreement dated as of September 1, 2003, between the Authority and the City. "Second Supplemental Agreement of Trust" shall mean the Second Supplemental Agreement of Trust dated as of , 2005, between the Authority and the Trustee, which supplements the Agreement of Trust. "Series 2005A Arbitrage Rebate Fund" shall mean the fund established in Section 6.1. "Series 2005A Bonds" shall mean the Authority's $ Public Facility Revenue Bonds, Series 2005A, authorized to be issued pursuant to the Second Supplemental Agreement of Trust. "Series 2005A Projects" shall mean the financing or refinancing of the acquisition, construction and equipping of all or a portion of the projects as set forth on Exhibit B. 2 Section 1.2 Rules of Construction. The following rules shall apply to the construction of this First Supplemental Support Agreement unless the context otherwise requires: (a) Words importing the singular number shall include the plural number and vice versa. (b) Words importing the redemption or calling for redemption of Bonds shall not be deemed to refer to or connote the payment of Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this First Supplemental Support Agreement. (d) The headings herein and Table of Contents to this First Supplemental Support Agreement herein are solely for convenience of reference and shall not constitute a part of this First Supplemental Support Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to payment of Bonds are references to payment of principal of and premium, if any, and interest on the Bonds. ARTICLE 11 REPRESENTATIONS Section 2.1 Representations by Authority. The Authority makes the following representations: (a) The Authority is a political subdivision of the Commonwealth of Virginia duly created under the Act; (b) Pursuant to the Act, the Authority has full power and authority to enter into the Basic Agreements and to perform the transactions contemplated thereby and to carry out its obligations thereunder and by proper action has duly authorized, executed and delivered the Basic Agreements. (c) The execution, delivery and compliance by the Authority with the terms and conditions of the Basic Agreements will not conflict with or constitute or result in a default under or violation of, (1) any existing law, rule or regulation applicable to the Authority, or (2) any trust agreement, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or other restriction of any kind to which the Authority or any of its assets is subject; (d) No finther approval, consent or withholding of objection on the part of any regulatory body or any official, Federal, state or local, is required in connection with the execution or delivery of or compliance by the Authority with the terms and conditions of the 91 Basic Agreements, except that no representation is made as to the applicability of any Federal or state securities laws; and (e) There is no litigation at law or in equity or any proceeding before any governmental agency involving the Authority pending or, to the knowledge of the Authority, threatened with respect to (1) the creation and existence of the Authority, (2) its authority to execute and deliver the Basic Agreements, (3) the validity or enforceability of the Basic Agreements, or the Authority's performance of its obligations thereunder, (4) the title of any officer of the Authority executing the Basic Agreements, or (5) the ability of the Authority to issue and sell its bonds. Section 2.2 Representations by City. The City makes the following representations: (a) The City is a political subdivision of the Commonwealth of Virginia; (b) The City has full power and authority to enter into the Basic Agreements to which it is a party and to perform the transactions contemplated thereby and to carry out its obligations thereunder and by proper action has duly authorized, executed and delivered the Basic Agreements; (c) The City is not in default in the payment of the principal of or interest on any of its indebtedness for borrowed money and is not in default under any instrument under or subject to which any indebtedness for borrowed money has been incurred, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in an event of default thereunder; (d) The City is not in default under or in violation of, and the execution, delivery and compliance by the City with the terms and conditions of the Basic Agreements to which it is a party will not conflict with or constitute or result in a default under or violation of, (1) any existing law, rule or regulation applicable to the City or (2) any trust agreement, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or restriction of any kind to which the City or any of its assets is subject, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in such a default or violation; (e) No further approval, consent or withholding of objection on the part of any regulatory body or any official, Federal, state or local, is required in connection with the execution or delivery of or compliance by the City with the terms and conditions of the Basic Agreements to which it is a party; and (f) There is no litigation at law or in equity or any proceeding before any governmental agency involving the City pending or, to the knowledge of the City, threatened with respect to (1) the authority of the City to execute and deliver the Basic Agreements to which it is a party, (2) the validity or enforceability of the Basic Agreements or the City's performance of its obligations thereunder, (3) the title of any officer of the City executing the Basic Agreements, or (4) the ability of the City to undertake the Series 2005A Projects. 4 ARTICLE III AGREEMENT TO ISSUE BONDS Section 3.1 Agreement to Issue Series 2005A Bonds. The Authority shall contemporaneously with the execution and delivery hereof proceed with the issuance and sale of the Series 2005A Bonds bearing interest, maturing and having the other terms and provisions set forth in the Agreement of Trust. ARTICLE IV PAYMENT OBLIGATIONS; MASTER SUPPORT AGREEMENT AMENDMENTS Section 4.1 Amounts Payable. (a) The Master Support Agreement is hereby amended to replace in its entirety the Exhibit A attached thereto with the new Exhibit A attached hereto. Pursuant to Article IV of the Master Support Agreement and subject specifically to the limitation of Section 4.4 thereof, the City shall pay to the Authority or its assignee the Annual Payments specified in Exhibit A attached hereto on or before the due dates set forth in such exhibit. The Annual Payments shall be payable without notice or demand at the designated corporate trust office of the Trustee. (b) The definition of "Additional Payment(s)" in the Master Support Agreement is hereby amended to read as follows: "Additional Payment(s)" shall mean such payment or payments made by the City pursuant to Section 4.1(b) and (c) and payments made by the City from time to time as necessary to pay rebate due under the Code with respect to any Series of Bonds. ARTICLE V PREPAYMENT AND REDEMPTION Section 5.1 Prepayment and Redemption. The City shall have the option to prepay any Annual Payment at the times and in the amounts as necessary to exercise its option to cause the Series 2005A Bonds to be redeemed as set forth in such Series 2005A Bonds. Such prepayments of Annual Payments shall be made at the times and in the amounts as necessary to accomplish the optional redemption of the Series 2005A Bonds as set forth in the Series 2005A Bonds. The Series 2005A Bonds shall be prepaid or redeemed in the manner and at the times set forth in the Series 2005A Bonds. Upon the exercise of such option, the City shall also pay as Additional Payments, the amounts necessary to pay the premium, if any, due on such Series 2005A Bonds on the date or dates of their redemption. W The City shall give the Trustee notice of any redemption of such Series 2005A Bonds at least 15 days prior to the latest date that notice of redemption may be given pursuant to Section 402 of the Master Agreement of Trust, such notice to the Trustee to specify the redemption date, the principal amount of Series 2005A Bonds to be redeemed, the premium, if any, and the section of the Agreement of Trust pursuant to which such redemption is to be made. ARTICLE VI SERIES 2005A ARBITRAGE REBATE FUND Section 6.1 Series 2005A Arbitrage Rebate Fund. There is hereby established the City of Virginia Beach, Virginia, Series 2005A Public Facility Revenue Bond Arbitrage Rebate Fund (the "Series 2005A Arbitrage Rebate Fund") to be held by or on behalf of the City. Subject to the limitation in Section 4.4 of the Master Support Agreement, the City shall deposit moneys in the Series 2005A Arbitrage Rebate Fund from time to time for payment of the rebate obligations under the Code (the "Rebate Amount"). The City may establish separate accounts in the Series 2005A Arbitrage Rebate Fund for such payments. Section 6.2 Rebate Requirement. Except with respect to earnings on funds and accounts qualifying for exceptions to the rebate requirement of Section 148 of the Code, the City shall pay, but solely from amounts in the Series 2005A Arbitrage Rebate Fund, the Rebate Amount to the United States of America, as and when due, in accordance with Section 148(f) of the Code, as provided in this Article, and shall retain records of all such determinations until six years after payment of the Series 2005A Bonds. Section 6.3 Calculation and Report of Rebate Amount. (a) The City selects as the end of the bond year with respect to the Series 2005A Bonds pursuant to Treasury Regulation Section 1.148-1. (b) Within 30 days after the initial installment computation date which is the last day of the fifth bond year, unless such date is changed by the City prior to the date that any amount with respect to the Series 2005A Bonds is paid or required to be paid to the United States of America as required by Section 148 of the Code, and at least once every five years thereafter, the City shall cause the Rebate Amount to be computed and shall deliver a copy of such computation (the "Rebate Amount Certificate") to the Authority and the Trustee. Prior to any payment of the Rebate Amount to the United States of America as required by Section 148 of the Code, a Rebate Amount Certificate setting forth such Rebate Amount shall be prepared or approved by (1) a person with experience in matters of governmental accounting for Federal income tax purposes or (2) a bona fide arbitrage rebate calculation reporting service. Section 6.4 Payment of Rebate Amount. Not later than 60 days after the initial installment computation date, the City shall pay solely from amounts in the Series 2005A Arbitrage Rebate Fund to the United States of America 3i at least 90% of the Rebate Amount as set forth in the Rebate Amount Certificate prepared with respect to such installment computation date. At least once on or before 60 days after the installment computation date that is the fifth anniversary of the initial installment computation date and on or before 60 days after every fifth anniversary date thereafter until final payment of the Series 2005A Bonds, the City shall pay to the United States of America not less than the amount, if any, by which 90% of the Rebate Amount set forth in the most recent Rebate Amount Certificate exceeds the aggregate of all such payments theretofore made to the United States of America pursuant to this Section. On or before 60 days after final payment of the Series 2005A Bonds, the City shall pay to the United States of America the amount, if any, by which 100% of the Rebate Amount set forth in the Rebate Amount Certificate with respect to the date of final payment of the Series 2005A Bonds exceeds the aggregate of all payments theretofore made pursuant to this Section. All such payments shall be made solely from amounts in the Series 2005A Arbitrage Rebate Fund. Notwithstanding any provision of the Support Agreement to the contrary, no such payment shall be made if the City receives and delivers to the Trustee and the Authority an opinion of Bond Counsel to the effect that (a) such payment is not required under the Code in order to prevent the Series 2005A Bonds from becoming "arbitrage bonds" within the meaning of Section 148 of the Code or (b) such payment should be calculated and paid on some alternative basis under the Code, and the City complies with such alternative basis. The Authority covenants that, if so requested by the City, it shall execute any form required to be signed by an issuer of tax-exempt bonds in connection with the payment of any Rebate Amount (including Internal Revenue Service Form 8038-T) based on information supplied to the Authority by the City. The City shall supply all information required to be stated on such form and shall prepare such form. Except for the execution and delivery of such form upon timely presentation by the City, the Authority shall have no responsibility for such form or the information stated thereon. Section 6.5 Reports by Trustee. The Trustee shall provide the City within 10 days after each and within 10 days after the final payment of the Series 2005A Bonds with such reports and information with respect to earnings of amounts held under the Agreement of Trust as may be requested by the City in order to comply with the provisions of this Article. Section 6.6 Disposition of Balance in Series 2005A Arbitrage Rebate Fund. After each payment required in Section 6.4 is made and any additional amount necessary to pay the full rebate obligation is retained, the remaining amount in the Series 2005A Arbitrage Rebate Fund shall be retained by the City and used for any lawful purpose. 7 ARTICLE VII MISCELLANEOUS Section 7.1 Severability. If any provision of this First Supplemental Support Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof. Section 7.2 Successors and Assigns. This First Supplemental Support Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 7.3 Counterparts. This First Supplemental Support Agreement may be executed in any number of counterparts, each of which shall be an original, all of which together shall constitute but one and the same instrument. Section 7.4 Governing Law. This First Supplemental Support Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. E:3 IN WITNESS WHEREOF, the parties have caused this First Supplemental Support Agreement to be duly executed by their duly authorized representatives as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Chairman CITY OF VIRGINIA BEACH, VIRGINIA I0 Seen and agreed to: City Manager WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee Title 9 RECEIPT Receipt of the foregoing original counterpart of the First Supplemental Support Agreement dated as of , 2005, between the City of Virginia Beach Development Authority and the City of Virginia Beach, Virginia, is hereby acknowledged. WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee LIM Title 10 SCHEDULE OF PAYMENTS SERIES 2003A BONDS Due Total Date Principal Interest Payment 5/20/04 $ 5,975,278.13 $5,975,278.13 11/20/04 $ 3,865,000 3,983,518.75 7,848,518.75 5/20/05 3,925,543.75 3,925,543.75 11/20/05 4,595,000 3,925,543.75 8,520,543.75 5/20/06 3,833,643.75 3,833,643.75 11/20/06 5,945,000 3,833,643.75 9,778,643.75 5/20/07 3,714,743.75 3,714,743.75 11/20/07 6,255,000 3,714,743.75 9,969,743.75 5/20/08 3,620,918.75 3,620,918.75 11/20/08 6,570,000 3,620,918.75 10,190,918.75 5/20/09 3,456,668.75 3,456,668.75 11/20/09 6,225,000 3,456,668.75 9,681,668.75 5/20/10 3,301,043.75 3,301,043.75 11/20/10 6,540,000 3,301,043.75 9,941,043.75 5/20/11 3,137,543.75 3,137,543.75 11/20/11 6,880,000 3,137,543.75 10,017,543.75 5/20/12 2,965,543.75 2,965,543.75 11/20/12 7,235,000 2,965,543.75 10,200,543.75 5/20/13 2,775,625.00 2,775,625.00 11/20/13 7,600,000 2,775,625.00 10,375,625.00 5/20/14 2,576,125.00 2,576,125.00 11/20/14 8,010,000 2,576,125.00 10,586,125.00 5/20/15 2,365,862.50 2,365,862.50 11/20/15 8,470,000 2,365,862.50 10,835,862.50 5/20/16 2,154,112.50 2,154,112.50 11/20/16 8,950,000 2,154,112.50 11,104,112.50 5/20/17 1,930,362.50 1,930,362.50 11/20/17 9,450,000 1,930,362.50 11,380,362.50 5/20/18 1,694,112.50 1,694,112.50 11/20/18 9,965,000 1,694,112.50 11,659,112.50 5/20/19 1,444,987.50 1,444,987.50 11 /20/ 19 10,505,000 1,444,987.50 11,949,987.50 5/20/20 1,182,362.50 1,182,362.50 11 /20/20 11,080,000 1,182,362.50 12,262,362.50 5/20/21 905,362.50 905,362.50 11/20/21 11,665,000 905,362.50 12,570,362.50 5/20/22 613,737.50 613,737.50 11/20/22 12,285,000 613,737.50 12,898,737.50 5/20/23 306,612.50 306,612.50 11/20/23 12,910,000 306,612.50 13,216,612.50 TOTAL $165,000,000 $101,768,621.88 $266,768,621.88 EXHIBIT A SERIES 2005A BONDS Due Date Principal Interest Total Payment A-1 EXHIBIT B DESCRIPTION OF SERIES 2005A PROJECTS The following sets forth brief descriptions of the Projects to be financed in whole or in part and the certificates to be refunded with the proceeds of the Series 2005A Bonds: Convention Center Replacement - This project provides for the replacement and relocation of the existing pavilion convention center on the same site. It will provide for approximately 150,000 square feet of exhibit hall, 25,000 square feet of meeting rooms and 32,000 square feet of ballroom space. The cost of this project is approximately $206,100,000. Thirty -First Street Parking Garage - This project is for the construction of an approximate 1,000 space parking garage, 26,000 square feet of retail space, a pedestrian bridge from the garage to a proposed hotel to be developed on the oceanfront and a public park adjacent to the hotel. The cost of this project is approximately $31,508,684. Town Center Garage Block 10 - This project is for the construction of an approximate 840 space parking garage located in the Town Center district of the City. The cost of this project is approximately $13,500,000. Town Center Garage Block 12 - This project is for the construction of an approximate 305 space parking garage located in the Town Center district of the City. The cost of this project is approximately $8,300,000. Open Space Site Acquisition - This project provides for the acquisition of land for preservation and/or recreational purposes. Acquisition may include areas to remain in a natural state, land to be improved as parks and active recreation facilities, land to preserve flood plains and/or act as storm water management facilities and land to use for right-of-way to improve as trails. The cost of this project is approximately $51,840,000. Ninth Street Parking Garage - This project is for the acquisition of an existing parking garage in the City's oceanfront area. The 212,910-square foot garage has 853 parking spaces on four levels. The City is purchasing 664 spaces on levels two through four. The cost of this project is approximately $9,750,000. Virginia Marine Science Museum Parking - This project will provide a 500 space parking lot across the road from the museum and will address the safe crossing of pedestrians from the parking area to the museum. The cost of this project is approximately $3,000,000. Emergency Communications Operation Center - This project is for the design and construction of a new Emergency Communications Center and Emergency Operation Center, to be located in the Municipal Center, on the north side of the intersection of Princess Anne Road and James Madison Boulevard, across the street from the Public Safety Building. The cost of this project is approximately $10,456,000 Revenue Assessment and Collection System - This project provides for a comprehensive, fully integrated tax system to replace the computer systems currently used to support tax revenue assessment and collection. The cost of this project is approximately $11,095,900. Pavilion Theater Replacement - This project replaces the current 1,000 seat Pavilion Theater with a new theater at the Town Center and includes parking. The cost of this project is approximately $50,000,000. City/School Human Resource Payroll System - This project replaces the City's ten year old payroll system with a new information system utilizing current network infrastructure. The cost of this project is approximately $10,283,106. Communications Infrastructure Replacement - This project will replace various components of the public safety communications infrastructure related to equipment associated with receiving, dispatching, transponding and answering public safety calls. The cost of this project is approximately $24,850,000. Fire Apparatus Equipment - This project funds replacement of heavy equipment fire apparatus that costs over $50,000 and have a useful life of over ten years. The cost of this project is approximately $17,870,000. Refunding - The $36,700,000 Refunding Certificates of Participation Evidencing Direct and Proportionate Interest of Owners Thereof in Payments to be Made by the City of Virginia Beach, Virginia, under a Real Property Lease Agreement maturing on September 1 in the years 2005, 2006, 2007 and 2010 (the "Refunded Certificates"), issued on June 24, 2004, will be refunded on September 1, 2005. The Refunded Certificates were issued pursuant to a Trust Agreement dated as of October 1, 1987, as supplemented and amended, between the City of Virginia Beach, Virginia, First Union Commercial Corporation and The Bank of New York, as successor trustee. M:1Pa 22764.000266 RICHMOND 1406542v1 IN CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution Appointing Jamie E. K. Tyler and Aimee E. Knapp as Assistant City Attorneys MEETING DATE: April 12, 2005 ■ Background: Section 2-166 of the City Code provides that "[t]he city council may, from time to time, upon recommendation of the city attorney, appoint such deputy and assistant city attorneys as it may deem necessary to serve at the pleasure of the city attorney." ■ Considerations: The proposed appointment of Jamie E. K. Tyler and Aimee E. Knapp will fill vacancies in the City Attorney's Office. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: City Attorney City Manager: I A RESOLUTION APPOINTING JAMIE E. K. TYLER 2 AND AIMEE E. KNAPP AS ASSISTANT CITY ATTORNEYS 3 4 BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 5 VIRGINIA: 6 That, pursuant to § 2-166 of the Code of the City of Virginia 7 Beach, Jamie E. K. Tyler and Aimee E. Knapp are hereby appointed as 8 Assistant City Attorneys, effective May 1, 2005. E 10 Adopted by the Council of the City of Virginia Beach, 11 Virginia, on the day of 12 13 14 15 16 17 18 19 20 21 22 23 CA9589 H:\GG\Ordres\Tyler-Knapp.Appointment.Res.doc R1 April 1, 2005 APPROVED AS TO LEGAL SUFFICIENCY: )b&4� �#- &�Ll City Attorney's Office 1 2005. K. PLANNING Variance to §4.4 (b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance (CZO) for JOHN C. AND MARY VOGEL TRUST to subdivide a family parcel at 2388-2400 London Bridge Road(DISTRICT 7 — PRINCESS ANNE) 2. Application of ENOCH BAPTIST CHURCH for a Modification of a Conditional Use Permit (approved by City Council on and December 16, 1997, and August 28, 2001) to allow a child care center in conjunction with the church. at 5641 Herbert Moore Road (DISTRICT 2 — KEMPSVILLE) 3. Application of GOOD SAMARITAN EPISCOPAL CHURCH for a Modi zcation o Condition Number S of a Conditional Use Permit (approved by City Council on December 13, 1976, and November 9, 2004) re certain level of improvements to the adjacent right-of-way at 848 Baker Road (DISTRICT 2 — KEMPSVILLE) 4. Application of LAND & BUILDING IV. L.C. for the Modification of'Proffer Number 1 re Conditional Changeof Zoning (approved by City Council on March 28, 2000 Troy A. Titus), re a building strip mall at 5221 Indian River Road (DISTRICT 1 — CENTERVILLE) 5. Application of MICHAEL J. & HELEN V. STANDING / FOGGS SEAFOOD CORPORATION re the enlargement of a Nonconforming Use to enlarge the existing free standing restaurant at 415 Atlantic Avenue (DISTRICT 6 — BEACH) 6. Application of RICK GRAHAM for a Conditional Use Permit re automotive repair garage within an existing building in the Owls Creek Commerce Center at 1228 Jensen Drive (DISTRICT 6 — BEACH) 7. Application of JAMES E. MILLER for a Conditional Use Permit for a bulk storage yard at 593 South Birdneck Road (DISTRICT 6 — BEACH) O •g. � 7 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: John C. and Mary Vogel Trust — Subdivision Variance MEETING DATE: April 12, 2005 ■ Background: Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for John C. and Mary Vogel Trust. Property is located at 2388-2400 London Bridge Road (GPIN 24050006930000). DISTRICT 7 — PRINCESS ANNE ■ Considerations: The existing lot is 15.7 acres and has rural commercial uses as well as rural residential use. The applicant desires to subdivide 2.74 acres from the Site A-1 as requested by the property owner in his last will and testament. The City Zoning Ordinance requires a minimum lot area of 3 acres for parcels used for non-residential purposes. Since the lot being created is being used for non-residential purposes and is only 2.74 acres, a variance is necessary. This subdivision would provide for the division of the family parcel as provided for in the will of the former property owner. The complicating issue is that the will specified that the parcel be divided as shown on the submitted plat. Unfortunately, the lot being created, Parcel A-1A lacks 0.16 acre of meeting the minimum lot size requirement for a non-residential parcel in the AG Districts. Staff concludes that the granting of a variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. Planning Commission placed this item on the consent agenda because staff recommended approval and there was no opposition. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following condition: John C. and Mary Vogel Trust Page 2 of 2 The subdivision of the sites shall substantially adhere to the submitted plan entitled "Preliminary Subdivision of Lot A-1, Princess Anne Hunt Club, Inc. for John Vogel", updated 06/08/01, prepared by NDI, L.L.C. Basgier and Associates Division. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the City of Virginia Beach Planning Department. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/A ency: Planning Department 9 City Manage . �� JOHN C. & MARY VOGEL TRUST Agenda Item # 2 March 9, 2005 Public Hearing Staff Planner: Karen Prochilo REQUEST: Subdivision Variance to Section 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance. a ` Ev p�" z`r�10p• ADDRESS / DESCRIPTION: Property located at 2388 and 2400 London Bridge Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24059006930000 7 — PRINCESS ANNE 15.7 acres Existing Lot: The existing lot is 15.7 acres and has rural SUMMARY OF REQUEST commercial uses as well as rural residential use. Proposed Lots: It is the intent of the applicant to subdivide 2.74 acres from the Site A-1 as requested by the property owner in his last will and testament. The City Zoning Ordinance requires a minimum lot area of 3 acres for parcels used for non-residential purposes. Since the lot being created is only 2.74 acres, a variance is necessary. It= 5999iw Lot A_1 LOI A-1A Lot Width in feet 150 375 255 Lot Area in acres 3 12.96 2.74* "variance required LAND USE AND ZONING INFORMATION EXISTING LAND USE: This primarily rural property is separated into three areas: a). an area zoned B-2 with a pole barn, produce stand and some smaller structures to house animals, b). 2.74 acres for the kennel, and c). the single family dwelling with barn. SURROUNDING LAND North: • Undeveloped land / AG-1 Agricultural District USE AND ZONING: South: • Across London Bridge Road are single family dwellings / R-20 Residential District East: • Single-family homes / PD-H2 (R-5D) Planned Development District and R-20 Residential District West: . Rural Residential / AG-2 Agricultural District NATURAL RESOURCE AND There are no significant natural resource features on the site. The site CULTURAL FEATURES: does possess some cultural interest since it is one of the remaining agricultural uses north of the Green Line. AICUZ: The majority of the site is in an AICUZ of less than 75 dB Ldn surrounding NAS Oceana. A small corner of the property is in the greater than 75 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): London Bridge Road in the vicinity of this application is considered a four lane divided minor suburban arterial as is designated on the Master Transportation Plan (MTP). There are currently no projects to upgrade this roadway at this time. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic London Bridge 20,000 ADT 28,200 ADT (Level of Existing Land Use — Road Service "C") 100 ADT Proposed Land Use - unchanged ' Average Daily Trips z as defined by existing produce stand, bus traffic, kennel and residential use The Comprehensive Plan recognizes this site as being within COMPREHENSIVE PLAN the Primary Residential Area. The land use planning policies and principles for this area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in the area. Section 9.3 of the Subdivision Ordinance states: No variance shall be authorized by the Council unless it finds that: JOHN AND MARY A. Strict application of the ordinance would produce undue hardship. B. The authorization of the variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. C. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. D. The hardship is created by the physical character of the property, including dimensions and topography, or by other extraordinary situation or condition of such property, or by the use or development of property immediately adjacent thereto. Personal or self- inflicted hardship shall not be considered as grounds for the issuance of a variance. E. The hardship is created by the requirements of the zoning district in which the property is located at the time the variance is authorized whenever such variance pertains to provisions of the Zoning Ordinance incorporated by reference in this ordinance. EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the condition below. The applicants are requesting a variance for the purpose of subdividing out a non-residential parcel from the larger existing parcel. This subdivision would provide for the division of the family parcel as provided for in the will of the former property owner. The complicating issue is that the will specified that the parcel be divided as shown on the submitted plat. Unfortunately, the lot being created, Parcel A-1 A lacks 0.16 acre of meeting the minimum lot size requirement for a non-residential parcel in the AG Districts. Staff concludes that the granting of a variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. CONDITION The subdivision of the sites shall substantially adhere to the submitted plan entitled "Preliminary Subdivision of Lot A-1, Princess Anne Hunt Club, Inc. for John Vogel", updated 06/08/01, prepared by NDI, L.L.C. Basgier and Associates Divsion. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the City of Virginia Beach Planning Department. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. JOHN AND MARY O H N 2 0 Z Z O N > Rezonings Mtge Special Restrictions 1 04/12/92 Conditional zoning Ag-2 to B-2 Granted 2 10/22/91 CUP (Recreational and amusement facility) Granted 01/28/85 CUP (Addition to kennel) Granted 3 05/23/00 CUP (Recreational of an outdoor nature) Granted 4 08/25/92 CUP (Truck rental) Denied m l7a. y fC an "• "C% t i 7j 3 ¢ � Cs on � 627 Ca qC m of Q m Q 2 f 3» y C 4ri LJ L ... v g T ,Y V wr GGm `q .� aI T U. C CL V � 3� m . t7 'tt C M 1 9' c? E N.of C q. K v 4i/ O} E eua f m °a fl m c o acm=ICA,x 6-3 #- B "w rt• 3 r f c 3 4 a c w 4�' E c O Q c q o�u x, i3 ca v..m my .5 f {ta tq gcmOA GaQc �Cc�mcarn lFEtQ c a m T f let c'>ozLmumcma a- 3+. c <Q 3 �7 B, E C Q m J 0. Y➢ 3 i L1 ^} G B a E L C m 2 Lou T t � T T • ! � � i 3 a O is = �*1-i4i, a u p a» K m mYc>'y4Q 0ci m �,•� 4j` t a5 F pG O. _°ooy wr dam q'�� ,,� jr Tj jj ,i a z -- JOHN AND MARY yyY w Item #2 John C. & Mary Vogel Trust Subdivision Ordinance 2388-2400 London Bridge Road District 7 Princess Anne March 9, 2005 CONSENT William Din: The second item that I have is Item #2, John C. and Mary Vogel Trust. This is a request for a subdivision variance for John C. and Mary Vogel Trust. Property is located at 2388-2400 London Bridge Road in the Princess Anne District. Bill Gambrell: Madame Chairman and members of the Planning Commission. My name is Bill Gambrell. I'm a private land planner and I represent the applicant. I'm glad to be on the consent agenda. I appreciate it. The conditions that staff has indicated in the staff report is acceptable to the applicant. Again, thanks for having us on the consent agenda. William Din: Thank you. Is there any objection to this item being placed on the consent agenda? If not, Mr. Barry Knight is going to explain why we placed this on consent. Barry Knight: The request is for a subdivision variance. There are just a little bit short on their acreage. When the City acquired right-of-way from London Bridge Road. We brought this portion below the minimum. It was originally in the will. They wanted the property separated this way and at that time when the will it met that criteria. There is also a natural boundary along side of the ditch, and we believe it is a hardship for the applicant so we put this on consent agenda. I think it would be a proper use of the land. William Din: Thank you Mr. Knight. The first item on consent is Item #2, John C. and Mary Vogel Trust. This is a request for a subdivision variance on property located at 2388-2400 London Bridge Road in the Princess Anne District. I would like to move to approve this item on the consent agenda. Dorothy Wood: Thank you Mr. Din. Barry Knight: I second the motion. Dorothy Wood: A motion by Mr. Din and seconded by Mr. Knight. Any discussion? AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE Item #2 John C. & Mary Vogel Trust Page 2 KATSIAS AYE KNIGHT AYE MILLER AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved Item #2 for consent. Dorothy Wood: Thank you. -40- Item IV-M.3. PUBLIC HEARING ITEM # 43026 (Continued) PLANNING This Ordinance shall be effective in accordance with Section 107 (t) of the Zoning Ordinance Adopted by the Council of the City of Virginia Beach, Virginia, on the Sixteenth of December Nineteen Hundred and Ninety -Seven. Voting 11-0 (By Consent) Council Members Voting Aye John A. Baum, Linwood O Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E. Oberndorf, Nancy K Parker, Vice Mayor William D Sessoms, Jr and Louisa M Strayhorn Council Members Voting Nay None - 39 - Item IV-M.3. PUBLIC HEARING ITEM # 43026 PLANNING Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED an Ordinance upon application ofENOCH BAPTIST CHURCHfor a Conditional Use Permit ORDINANCE UPON APPLICATION OF ENOCH BAPTIST CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHURCHRO12972158 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Enoch Baptist Church for a Conditional Use Permit for a church on the South side of Moore's Pond Road, 583 72 feet East of Baker Road. Said parcel is located at 5641 Moore's Pond Road„ containing 3 314 acres BAYSIDE BOROUGH The following conditions shall be required I Development of the site shall be in substantial conformance with the site plan entitled "Proposed Site Plan, Enoch Baptist Church" received 29 October 1997 and on file with the Planning Department 2 Architectural design, colors and materials shall match those identified on the elevation entitled "Proposed Elevation, Enoch Baptist Church, Moore's Pond Road, Virginia Beach, Virginia" and on file with the Virginia Beach Planing Department If this design must be altered to meet the zoning ordinance restriction for height, the revised architectural design must be approved by the Planning Director or his Designee prior to site plan approval 3 If the applicant chooses to construct a freestanding sign, it must be monument -style, no taller than eight feet (8) and constructed of brick that matches the building 4. Clearing of understory growth within the Eastern and Southern bu, fJm shall be performed by hand No trees with a caliper larger than four inches (4') shall be removed in these areas L:a__.- 1:_..7 CA L..cr__ -L_17 L_7r7__•__--- o VIP <i CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Enoch Baptist Church — Modification of a Conditional Use Permit (child care) MEETING DATE: April 12, 2005 ■ Background: An Ordinance upon Application of Enoch Baptist Church for the Modification of a Conditional Use Permit approved by City Council on August 28, 2001. The proposal would allow a child care center in conjunction with the church. Property is located at 5641 Herbert Moore Road (GPIN 14682411340000). DISTRICT 2 — KEMPSVILLE ■ Considerations: The applicant is requesting a use permit for child daycare within an existing church. The original Conditional Use Permit granted by City Council for the establishment of the church was on December 16, 1997. In 2001, the church requested a modification of conditions as the site layout and architectural design of the building was altered from the original approval. In addition, the church requested modification of a condition to allow for consistent road improvement requirements with other property owners on the street. The church stated that the cost was too great for them to incur and that they would be unable to secure funding from lending institutions for this expense. Furthermore, widening the road would have necessitated the removal of a number of mature trees along the north side of the street behind an existing row of townhouses. Property owners in the vicinity were concerned about privacy and negative visual impacts if that existing buffer of trees were removed. City Council approved these modifications permitting the minor architectural and site layout changes as well as reducing the required width of the pavement from 22 feet to 15 feet. The church along with the required right-of-way improvements including sidewalk, curb and gutter and additional asphalt, have all been constructed. The 2001 Conditional Use Permit, however, did not include a daycare operation; thus, a modification to the use permit is required. The church is proposing a "before and after school" program, Monday through Friday from 6:00 a.m. to 8:00 p.m., for up to 100 children, ages 2 through 12 years. No additional structure will be constructed on the property, as the church will utilize approximately 2,500 square feet of existing space within the church. Enoch Baptist Church Page 2 of 2 This proposal is in conformance with the Comprehensive Plan's recommendations for this area and is compatible with the adjacent residential neighborhood. No alteration to the exterior of the structure is proposed and there is ample area on the property for the construction of a play area. Planning Commission placed this item on the consent agenda because it is compatible with the existing uses in the area, provides a much -needed service to the area, and staff recommended approval. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following condition: All conditions attached to the Conditional Use Permit granted by the City Council on August 28, 2001, shall remain in affect. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting DepartmenVAgency: Planning Department . City Manage . �s6vt ENOCH BAPTIST CHURCH Agenda Item # 5 March 9, 2005 Public Hearing Staff Planner: Carolyn A.K. Smith REQUEST: Modification of the Conditional Use Permit approved by the City Council on August 28, 2001, for a church. The purpose of the modification is to allow child care. ADDRESS / DESCRIPTION: Property located on 5641 Herbert Moore Drive. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14682411340000 2 - KEMPSVILLE 3. 33 acres The original Conditional Use Permit granted by City Council for SUMMARY OF REQUEST the establishment of the church was on December 16, 1997. A Modification to that Conditional Use Permit was reviewed and approved by the City Council in August of 2001. The 2001 Conditional Use Permit has seven (7) conditions: 1. Development of the site shall be in substantial conformance with the site plan entitled "Site Plan, Enoch Baptist Church," by Gallup Surveyors and Engineers, dated May 15, 2001 which has been exhibited to City Council and is on file with the Planning Department. The plan must be modified to remove the stockpile area shown in the southeast corner and add a note that trees are to be protected in this area. Further modifications to the plan may also be necessary to comply with site plan requirements. 2. Architectural design, colors, and materials shall match those identified on the elevations entitled "Enoch Baptist Church — Phases I & Il," by Andrei T. Banks, which have been exhibited to City Council and are on file with the Planning Department. 3. If the applicant chooses to construct a freestanding sign, it must be monument style, no taller than eight feet (8'), and constructed of brick that matches the building. 4. Clearing of understory growth within the eastern and southern buffers shall be performed by hand. No trees with a caliper larger than four inches (4") shall be removed in these areas. ENOCH 5. A fifteen -foot (15') buffer shall be preserved on the western border of the property. Category IV landscaping shall be installed within this buffer area, modified as necessary to comply with any height limitations imposed by Virginia Power. 6. Road improvements for Herbert Moore Road shall consist of curb, gutter, sidewalk, and drainage facilities for the area fronting the subject property. Pavement width of the road in this area must be a minimum of fifteen feet (16). 7. The minimum front yard setback shall be measured from the ultimate right-of-way line for Moore's Pond Road (Herbert Moore Road). Since the 2001 Conditional Use Permit did not include the daycare operation, a modification to the permit is required. The church is proposing a before and after school program, Monday through Friday from 6:00 a.m. to 8:00 p.m., for up to 100 children, ages 2 through 12 years. No additional structure will be constructed on the property, as the church will utilize approximately 2,500 square feet of existing space within the church. LAND USE AND ZONING INFORMATION EXISTING LAND USE: A church with associated parking lot. SURROUNDING LAND North: . Herbert Moore Drive, townhouses / A-12 Apartment District USE AND ZONING: South: . Townhouses / A-12 Apartment District East: . Townhouses / A-12 Apartment District West: . Group home, church, Baker Road / R-10 Residential District NATURAL RESOURCE AND CULTURAL FEATURES: There are no significant environmental features on the property. AICUZ: The site is in an AICUZ of less than 65 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): There are no improvements planned within the MTP for either Herbert Moore Drive or Baker Road. The Public Works Department recommends that with this request, the asphalt width along Herbert Moore Drive, in front of this site, be expanded to a minimum width of 24 feet as additional development has occurred along Herbert Moore Drive, thereby increasing the amount of traffic along this right-of-way. This issue was a subject of the 2001 Use Permit request and is discussed in the Evaluation section at the end of this report. TRAFFIC: Street Name Present Present Generated Traffic Volume Capacity Baker Road 13,127 ADT 13,600 — Existing Land'Iftwr9aPP&At ' s as d 15,g00 ADT' fined y exis ng churc as defined by exis plus daycare (448 weep HU u?Je eay Pr p her Land U 9 s � 566WAa DWT here ht t WATER: This site has an existing ater meter thatmay be used or u grade is an ei I IIQIII 111 1 IGI&JGII IVIVVIG 1 t - Dr SEWER: This site is already connected to City sanitary sewer. Sanitary sewer and pump station analysis may be required for Pump Station 336 to determine if flows can be accommodated. There is a sanitary sewer manhole within a public utility easement east of the site. The Comprehensive Plan designates this area as "Primary COMPREHENSIVE PLAN Residential Area." The land use planning policies and principles for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. In a general sense, the established type, size and relationship of land uses, residential and non-residential, located in and around neighborhoods should serve as a guide when considering future development. Staff recommends approval of this EVALUATION AND RECOMMENDATION request with a condition. The recommended condition is provided below. The existing use permit did not address the church's desire to have a "latchkey' program for before and after school child care. With the approval of this request, the church will be able to operate this valuable and needed community service for approximately 100 children. It is Staff's opinion that this proposal is in conformance with the Comprehensive Plan's recommendations for this area and is compatible with the adjacent residential neighborhood. No alteration to the exterior of the structure is proposed and there is ample area on the property for the construction of a play area. In 2001, the church requested a modification of conditions as the site layout and architectural design of the building was altered from the original approval. In addition, the church requested modification of a condition to allow for consistent road improvement requirements with other property owners on the street. The church stated that the cost was too great for them to incur and that they would be unable to secure funding from lending institutions for this expense. Furthermore, widening the road would have necessitated the removal of a number of mature trees along the north side of the street behind an existing row of townhouses. Property owners in the vicinity were concerned about privacy and negative visual impacts if that existing buffer of trees were removed. City Council approved these modifications permitting the minor architectural and site layout changes as well as reducing the required width of the pavement,. ENOCH BAPTIST CHURCH AgendaItem# 5 Page 3 from 22 feet to 15 feet. The church along with the required right-of-way improvements including sidewalk, curb and gutter and additional asphalt, have all been constructed. CONDITION All conditions attached to the Conditional Use Permit granted by the City Council on August 28, 2001, shall remain in affect. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. ENOCH ED N # 1 11/9/04 CUP church expansion 12/13/76 CUP church # 2 4/22/04 CUP dormitory 4/24/89 CUP school # 3 8/28/01 CUP modification of conditions for church 12/16/97 CUP church 2/11/92 CUP church # 4 11/28/83 Change of Zoning R-5 to A-1 # 5 4/17/79 CUP group home Granted Granted Granted Granted Granted Granted Withdrawn Granted Granted " c e 3 QU cac M g i e i Tr C 1 w @ m y� S�=m�ag m c nb� Ecc.c�'arc6�5 Zcm�� �Kq•Ea$a.9 Q��G trTi�o_ �mQ�a��E o.�G rq m a Z `air? c s sb$ � a 1 t9.G�'� pf P G r WUS 6! yp ro- op G m 3 AS m CIO AT F C g tip �$ r t c $hL.a €Str�o t9 S cs Sc it, a W[l) I WX g4p5}} m � w a s a 'o l. A G L d., w' 1 0; cS U" ztl C S E a ZS Q a¢ ffi Q d.' 0 42 � -.,�. co6 D7 � YJ q �4 � . CID ca+ O_ ppa 'ia 3 im E4 5 E iy ,c try m g an b ai c�cawc � c�° � mc� `�u0.a�� � a_� c4 H W W LU U) 0 Cl) W Item #5 Enoch Baptist Church Modification of a Conditional Use Permit 5641 Herbert Moore Road District 2 Kempsville March 9, 2005 CONSENT William Din: Our next item is Item #5, Enoch Baptist Church. This is an application to modify the Conditional Use Permit previously approved by City Council on August 28, 2001. This would allow childcare center in conjunction with the church. Property is located at 5641 Herbert Moore Road in the Kempsville District. Latoya Johnson: Hello and thank you for having me. My name is Latoya Johnson. I stand on the behalf of Dr. Daniels from Enoch Baptist Church. I am the church Administrative Assistant, and yes, we have read the conditions and we have no objection. William Din: Thank you very much. Latoya Johnson: Thank you. William Din: Is there any objection to this being placed on the consent agenda? If not, Mr. Ron Ripley will speak on this issue. Ronald Ripley: The Planning Commission has concluded very much with adding the additional childcare provision to the Conditional Use Permit, which was granted to them in August 2001. It is a good use of the land. It a good thing that we would normally do and we don't see any problem with this. There is a comment about Public Works suggesting that the road be widened. Staff s recommendation and Planning Commission agrees to leave it at 15 feet. It seems to be adequate, and the trees that the next application will go into a little further but we agreed with the staff. William Din: Thank you Mr. Ripley. The third item for consent is Item 45 is Enoch Baptist Church. It's an application to modify a Conditional Use Permit approved previously on August 28, 2001 to allow a childcare center in conjunction with a church on property located at 5641 Herbert Moore Road in the Kempsville District. I would like to move to approve this item on the consent agenda. Dorothy Wood: Thank you Mr. Din. Barry Knight: I second the motion. Dorothy Wood: A motion by Mr. Din and seconded by Mr. Knight. Any discussion? Item #5 Enoch Baptist Church Page 2 AYE 11 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE MILLER AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE NAY 0 ABS 0 ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has approved Item #5 for consent. Dorothy Wood: Thank you. 3/8/2005 11:13 PM FROM: Fax TO: 426-5667 PAGE: 002 OF 002 26 Cypress Pointe HOA Amherst Homes Civic League Aragon Village Civic League Center Green COA Crystal Point HOA Cypress Point Civic Assoc Diamond Lake Estates Civic League DiamondSprings/ Carderrwood Civic League Grand Lake Civic League LW CVrdens Civic League Lake Cypress Civic League Lake Edward Area Civic League Lake Shores Gvic League Lake Smith Terrace, Haygood Point 8: Governor Square Civic League Lake Smith Civic League Lakeview Park Civic League Lawson Forest Civic League Lynbrook Landing Civic League Newsome Farms Civic League Traditions at Cypress Point HOA Wesleyan Chase Civic League Wesleyan Forest Civic League Wesleyan Pines Campus East Community Assoc Witchduck Lake r-4n A — Northwest Beach Partnership Board Members: P.j Padnck -President, Bruce Weller - is' Vice President, Dave Tirado - 2`a Vice President, Kale Warren - Treasurer, Tuesday, March 8, 2005 Virginia Beach Planning Commission Hearing March 9, 2005 Re: Agenda Item #5 Enoch Baptist Church, modification of Conditional Use Permit, allowing a child care center. Honorable Chairperson Woods and esteemed Commissionaires, The Board of Northwest Beach Partnership wishes to express their support for Enoch Baptist Church's application for modification. We are confident Enoch Baptist Church has the community's best interest in mind as they continue to find ways to fill the needs of the surrounding community. The church's location in the community offers an atmosphere of a quiet safe haven in a busy community. The church has quickly become an important resource partner for the surrounding neighborhood. We would like to take this opportunity to thank the Church for their outreach in the community. We are looking forward to the opportunity to help and further support their efforts and their good works. Thank you for the. opportunity to be heard on this matter. Respectfully, Northwest Beach Partnership Board northwestbeachpartners@verizon.net - 4h - Item V-K.6. PLANNING ITEM # 53125 lContinued) This Ordinance shall be effective in accordance with Section 107 9 of the Zoning Ordinance Adopted by the Council of the Ctrs of Virginia Beach, Virginia, on the 9th of Nlovelnhei Two Thousand Four Voting 9-0 (By Consent) Council .Members Voting Ale Harr- E Diezel, Robert W Dyer. Yice Ugyor Louis R Jone,. Raba S McClanan. Mavor.,Vfetieta E Oberndort. Peter W Schmidt, Ron 4 Villanueiri, James L Wood and Rawmury Wilson Council Members Voting Nay None Council .Members Absent Richar d A Maddox rind Jtnt Reeve Aloi ember 9, 2004 -45- Item V-K.6 PL411+h'[A'G ITEM # 53225 Upon motion b), Vice Mayot Jones, seconded by Councilman Schmidt, Cltc Council ADOPTED an Ordinance upon application of of GOOD SAMARITAN EPISCOPAL CHU'RCHfot a Conditional Lase Permit ORDINANCE UPON APPLICAMN OF GOOD SA:%IAR]TAtV EPISCOPAL CHURCH FOR 4 COADITIO_V•4L USE PEX-Wl T h OR 4 CHURCH (EATA'4`SIO ) RO110437203 BE IT HEREBY ORDALNED BY THE COUNCIL OF THE CITYOF VIRGINIA BEACH, VIRGINJA Ordinance upon Application of Good Sumartian Episcopal Church for a Conditional U%ePermit for at chut ch (evpairwon) on propel 11 located at 848 Baker Road (GP1A' 14681460320000) DISTRICT 2 - KE41PSVILLE The tollowing conditions shall he required All conditions attached to the Conditional Lis e Permit granted bi• the Cur Council on Deceinbet 13 1976, shall i eiiiain iti oflect i The modifications to the site shall be developed in substanital conformance with the submitted Preliminary Site Plan entitled "Good Samar itan Addition. "pi epa► ed b}- tunic DeZrgn Studio s, dated 04107104 which has been exhibited to the Virginia Beac h City Council and is un file in the t irginta Beach Planning Depat anent 3 The addition to the existing one (I) -slag) church bialdingshall be developed in substantial conformance it ith the %iihmined elevation% entitled, "GoodSaniarttan 4ddition, Sheet Avuntbet .4- 2 and A- 2 I - prepared by Ionic DeZrgn Studios, dated 04107104. which has been exhibited to they Virginia Beach Cit) Council and is on file in the t i ginia Beach Planning Department 4 The final Occupancy Permit Jot the ptopowd new assembl)- (Z 813 squat eloot addition), identified as such un the plans h., teed above, shall! not he gtawed until seating to ac cominudaw no more than one hundicad tiic•itir free 1125) scuts is shiftedfioni the erisiing a%seinbly tU the pt uposed ne►v tit scinhh- 5 Aminrmum tucnty Jour font (24 )nidepavementsecttonshall be depicted on the final site plan and unialled in front of the pruperty, fi o►n the conwi of Baket Road and Herbot t :Moore Driie, fronting the ptopa,r.1• along Herbert -Woore Drive Noi•einbet ), 2004 Father Thomas Barkley represented the Church COUNCILMAN MCCOY RETURNED TO CHAMBERS On motion by Councilman Waterfield, seconded by Councilwoman Oberndorf, and by recorded vote as follows: Ayes: Council Members John A. Baum, George R. Ferrell, John R. Griffin, Mayor Clarence A. Holland, J. Henry McCoy, Jr., Meyera E. Oberndorf, J. Curtis Payne, Roger L. Riggs, Vice Mayor Patrick L. Standing, and Floyd E. Waterfield, Jr. Nays: None Absent: Councilman Robert B. Cromwell, Jr. City Council adopted the following resolution upon application of Chapel of The Good Samaritan for a Conditional Use Permit for a church: APPLICATION OF CHAPEL OF THE GOOD RO1276090 SAMARITAN FOR A CONDITIONAL USE PERMIT FOR A CHURCH Be it resolved by the Council of the City of Virginia Beach, Virginia, that: Application of Chapel of The Good Samaritan for a Conditional Use Permit for a church on certain property located at the Southeast corner of Baker Road and Moore's Pond Road, running a distance of 313 feet more or less along the East side of Baker Road, running a distance of 613.44 feet along the Southern property line, runn- ing a distance of 330.11 feet along the Eastern property line and running a distance of 550 feet more or less along the South side of Moore's Pond Road. Said parcel contains 4.413 acres. (Weblin Place Area). Bayside Borough For the information of the applicant, prior to the issuance of a building permit, the following will be required by the administrative staff: 1. Standard site improvements as required by the Site Plan Ordinance 2. City water and sewer. It is recommended that the applicant contact the Public Utilities Department concerning the availability of sewerage facilities in this area. 3. At least one (1) parking space per five (5) seats or bench seating spaces in the main auditorium shall be required. erty line, running a distance of 125 feet along the Southern property line and running a distance of 125 feet along the Eastern property line. Said parcel contains 15,625 square feet. (Euclid Place Area). Bayside Borough. For the information of the applicant, prior to the issuance of a building permit, the following will be required by the administrative staff: 1. Standard site improvements as required by the Site Plan Ordinance. 2. City water and sewer. ITEM #10288 Application of Chapel of The Good Samaritan for a Conditional Use Permit for a church on certain property located at the Soutlheast corner of 3ab:er Road and Moore's Pond Road, running a distance of 313 feet more or less along the East side of Laker Road, running a distance of 613.44 feet along the Southern property line, runninq a distance of 330.11 feet along the Eastern property line and running a distance of 550 feet rco,-e or less along the South side of 'oore's Pond Road. Said parcel contains 4.413 acres. (Weblin Place Area). 3AYSIDE ROROMI. Plannina Corrinission Recommendation: A motion was passed unanimously by the Planning Commission by a recorded vote of 13 to approve this request. For the information of the applicant, prior to the issuance of a building per- mit, the following will be required by the administrative staff: 1. Standard site improvements as required by the Site Plan Ordinance. 2. City water and se:.rer. It is recommended that the applicant ccntact the Public Utilities Department concerning the availability of sewer- age facilities in this area. 3. At least one (i) parking space per five (5) seats or bench seating spaces in the main auditorium shall be required. CUP - Church Addition ��NL1 eFq f .. ri CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Good Samaritan Episcopal Church — Modification of a Conditional Use Permit (church expansion) MEETING DATE: April 12, 2005 ■ Background: An Ordinance upon Application of Good Samaritan Episcopal Church for the Modification of a Conditional Use Permit approved by City Council on November 9, 2004. Property is located at 848 Baker Road (GPIN 14681460320000). DISTRICT 2 — KEMPSVILLE ■ Considerations: The church is seeking a modification of Condition 5 of a recently approved use permit. The condition requires a certain level of improvements to the adjacent right-of-way. The original Conditional Use Permit permitting the existing church was approved by the City Council on December 13, 1976. In November 2004, City Council approved a 2,813 square foot expansion to the church for an assembly space with new handicap accessible restrooms. This provided the opportunity to convert the current assembly space into a multipurpose space for social events. No new classrooms or an increase in seating capacity were proposed. The Conditional Use Permit has five (5) conditions. Condition 5 requires improvements to the Herbert Moore Drive right-of-way. Upon conducting detailed plans and cost estimates after the use permit approval, the applicant discovered that the extent of the improvements required by Condition 5 will result in a tremendous financial hardship for the church. The church's contractor has estimated the cost to remove trees, expand the asphalt, etc., would actually exceed the amount budgeted for the proposed multipurpose facility. The church, therefore, seeks to modify the recent use permit approval. Condition 5 was the result of comments from the Public Works Department that noted that Herbert Moore Drive should be improved to at least 24 feet of asphalt. In 2001, a similar situation occurred on a property to the east of this site, also with frontage along Herbert Moore Drive. That applicant, Enoch Baptist Church, requested a modification of a condition requiring full improvements to Herbert Good Samaritan Episcopal Church Page 2 of 2 Moore Road. The church instead requested improvement of the road consistent with other property owners on the street. Enoch Baptist Church stated that the cost of upgrading the existing right-of-way was too great for them to incur and that they would be unable to secure funding from lending institutions for this expense. Furthermore, widening the road would have necessitated the removal of a number of mature trees along the north side of the street behind an existing row of townhouses. Property owners in the vicinity were concerned about privacy and negative visual impacts if that existing buffer of trees was removed. City Council approved the request to reduce the required width of the pavement to 15 feet. Ultimately, the church and the right-of-way improvements, including sidewalk, curb and gutter and additional asphalt, were constructed. Staff concludes that the request to modify Condition 5 for Good Samaritan Episcopal Church is appropriate and is consistent with past recent decisions of the City Council regarding this portion of Herbert Moore Road. Planning Commission placed this item on the consent agenda because they concluded the existing road width is adequate, the request is consistent with the 2001 modification for Enoch Baptist Church, and there was no opposition. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. All conditions attached to the Conditional Use Permit granted by the City Council on December 13, 1976, shall remain in affect and all conditions attached to the Conditional Use Permit granted by the City Council on November 9, 2004, shall remain in affect with the exception of Condition #5. 2. Improvements, if any, shall be installed along Herbert Moore Drive to match the existing geometrics of the right-of-way. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: S K , GOOD SAMARITAN EPISCOPAL CHURCH Agenda Item # 6 March 9, 2005 Public Hearing Staff Planner: Carolyn A.K. Smith REQUEST: Modification of the Conditional Use Permit approved by the City Council on November 9, 2004 for expansion of the existing church. ADDRESS / DESCRIPTION: Property located 848 Baker Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14681460320000 2 — KEMPSVILLE 3.32 acres SUMMARY OF REQUEST The original Conditional Use Permit permitting the existing church was approved by the City Council on December 13, 1976. This original Conditional Use Permit had three (3) conditions: 1. Standard site improvements as required by the Site Plan Ordinance. 2. City water and sewer. It is recommended that the applicant contact the Public Utilities . Department concerning the availability of sewerage facilities in this area. 3. At least one (1) parking space per five (5) seats or bench seating spaces in the main auditorium shall be required. In November 2004, City Council approved a 2,813 square foot expansion for an assembly space with new handicap accessible restrooms. This provided the opportunity to convert the current assembly space into a multipurpose space for social events. No new classrooms or an increase in seating capacity were proposed. The Conditional Use Permit approved by the City Council on November 9, 2004, has five (5) conditions: All conditions attached to the Conditional Use Permit granted by the City Council on December 13, 1976 shall remain in affect. 2. The modifications to the site shall be developed in substantial conformance with the submitted Preliminary Site Plan entitled, "Good Samaritan Addition," prepared by Ionic DeZign Studios, dated 04/07/04, which has been exhibited to the City of Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 3. The addition to the existing one (1)-story church building shall be developed in substantial conformance with the submitted Elevations entitled, "Good Samaritan Addition, Sheet Number A- 2 and A-2.1" prepared by Ionic DeZign Studios, dated 04/07/04, which has been exhibited to the City of Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 4. The Final Occupancy Permit for the proposed new assembly (2,813 square foot addition), identified as such on the plans listed above, shall not be granted until seating to accommodate no more than 125 seats is shifted from the existing assembly to the proposed new assembly. 5. A minimum 24 foot wide pavement section shall be depicted on the final site plan and installed in front of the property, from the corner of Baker Road and Herbert Moore Drive, fronting the property along Herbert Moore Drive. Condition 5, of the 2004 approval, requires improvements to the right-of-way (Herbert Moore Drive). According to the applicant, Condition 5, in it's current state, is a tremendous financial hardship for the church and therefore, they are seeking to modify the recent approval. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Church with associateD parking. SURROUNDING LAND North: . Herbert Moore Road, townhouses / A-12 Apartment District USE AND ZONING: South: . Townhouses / A-12 Apartment District East: . Townhouses / A-12 Apartment District West: . Baker Road, Virginia Wesleyan College / R-15 Residential District NATURAL RESOURCE AND The site is within the Chesapeake Bay watershed. There is nothing of CULTURAL FEATURES: environmental or historical significance on this property. AICUZ: The site is in an AICUZ of less than 65 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): The church's entrance is located off of Herbert Moore Drive, east of Baker Road. There are no planned improvements within the MTP for either roadway. The Public Works Department recommends that the asphalt width along Herbert Moore Drive, in front of this site, be expanded to a minimum width of 24 feet. The position of the Staff is that additional development has occurred along Herbert Moore Drive, thereby increasing the amount of traffic along this right-of-way. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Baker Road 13,127 ADT 13,600—15,000 ADT Existing Land Use — 30 ADT weekday 191 ADT SundaYs Proposed Land Use no change Average Daily Trips s as defined by 125 seats in the sanctuary 3 no change as the number of seats in the sanctuary is not changing The Comprehensive Plan designates this area as "Primary COMPREHENSIVE PLAN Residential Area." The land use planning policies and principles for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. In a general sense, the established type, size and relationship of land uses, residential and non-residential, located in and around neighborhoods should serve as a guide when considering future development. Staff recommends approval of this EVALUATION AND RECOMMENDATION request with conditions recommended by staff with the use permit. The recommended conditions are provided below. Condition 5, of the 2004 approval, requires improvements to the right-of-way (Herbert Moore Drive). According to the applicant, Condition 5, in its current state, is a tremendous financial hardship for the church and, therefore, they are seeking to modify the recent approval. Comments from the Public Works Department have stated that Herbert Moore Drive should be improved to at least 24 feet of asphalt. This was made a condition of the November 2004 approval. Since that time, the church's contractor has estimated the cost of those improvements to the road and determined that the price to remove trees, expand the asphalt, etc., would actually exceed the amount budgeted for the proposed multipurpose facility, and thus, the church's expeditious desire to revisit and reconsider this condition. In 2001, a similar situation occurred on a property to the east of this site, also with frontage along Herbert Moore Drive. The Enoch Baptist Church requested a modification of conditions to revise their architectural design and site layout as well as a modification of a condition to allow for consistent road improvement requirements with other property owners on the street. Enoch Baptist Church stated that the cost of upgrading the existing right-of-way was too great for them to incur and that they would be unable to secure funding from lending institutions for this expense. Furthermore, widening the road would have necessitated the removal of a number of mature trees along the north side of the street behind an existing row of townhouses. Property owners in the vicinity were concerned about privacy and negative visual impacts if that existing buffer of trees were removed. City Council approved the minor architectural and site layout changes as well as the request to reduce the required width of the pavement to 15 feet. Ultimately, the church and the right-of-way improvements, including sidewalk, curb and gutter and additional asphalt, were constructed. Staff is agreeable to the elimination of the existing Condition 5, subject to the conditions listed below. CONDITIONS 1. All conditions attached to the Conditional Use Permit granted by the City Council on December 13, 1976, shall remain in affect and all conditions attached to the Conditional Use Permit granted by the City Council on November 9, 2004, shall remain in affect with the exception of Condition #5. 2. Improvements, if any, shall be installed along Herbert Moore Drive to match the existing geometrics of the right-of-way. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. •tip- �) �t.'� s"�' ° ;� �4� �'� x 100 O �•� as *•* t7/ d �...� y � _Y": - ° s a n „F° V aad ' Ul a"its ` W'^ d 0 . 5 ° � —P _ -- M/S '99 cyou EM13 d G +1! Ps a � r � gMlvG4iA NMI > r Turn poor way? Al I toil flow. 21 R`y r'd s Ass �: � �s .. 5 � te✓ SI., i� o G d T r e� I I //I I I /II ♦ u� p►�s ► �. rf �1. Y tt SIR \�i `,il'w1i1 irk►► -IRA F.1t•� li�li�%r' ttt�t .*!��e'`��{{ttt .. Woo t y�� rl• � / � 4•GC��LttA � NF `� � '♦ • I!A CID • rimNVI A pc�f• •► �^s i• Granted • • • Granted CUP modification of conditions church Granted • • Pchurch Granted •CUP church Withdrawn • privateCUP • • Granted Church addition Granted Change of Zoning R-5 to A-1 �I� I • ► group home . • _ 0 H TCf) i Z Z N a O m 3 i d 0 G..L m cep CL S ,. � Cy .� .tom-. m C s0 � � •47 m ESP o c pp INS E as } (y IA`�c i Cc £mca°'`"eri�d J y_p i '�ViC Cam p'atn d.a ig.p ed•G�;s O.`1' mO ~ i� t6 ?: i d p •—. p a., LO.:� � Z3 ^— m � � rt7 H_�p ID C O O yy .� a m a CL ° �•� � E � m y� epq � C c fi3 ¢ YJ fled 9d C�CSi 3 m 0 = CL ©a Q 3 C¢ati into v$d w Ana ssn r& O •� a 0 +x3 Soo:+a t O «L. Mgt W 3 'V G 1-mil e; L 3 �. . r it i � �" � � � ✓tr.+A' � ` /'�/1%/ems �% H Z W W H Q F- W w D cn O V/ W Item #6 Good Samaritan Episcopal Church Modification of a Conditional Use Permit 848 Baker Road District 2 Kempsville March 9, 2005 CONSENT William Din: My next item is Item 46, Good Samaritan Episcopal Church. This is also an application for the church to modify their existing Conditional Use Permit previously approved by City Council on November 9, 2004. Property is located at 848 Baker Road in the Kempsville District. There are two conditions associated with this item. Eugene Thompson: Good afternoon. My name is Eugene Thompson with IM Design Studios, and we are the architects representing Good Samaritan. Thank you for having us on the consent agenda. We have read the conditions and do accept those conditions. One clarification, that I want to make on Item #2, it indicates that any improvements, if any, shall be installed in accordance. We don't plan on any of those improvements but understand it that if improvements were to be made in the future that we have to comply with them. William Din: Thank you very much Mr. Thompson. Is there any objection to placing this item on the consent agenda? If not, Mr. Ripley will explain this issue. Ronald Ripley: This application is located to the west of the last application and they both share Herbert Moore Road. There is a photograph that tells the width of the existing pavement that services this particular property. The Conditional Use Permit that was granted in November 9, 2004, suggested that road be widened to 24 feet. But after looking at it closer and also with new applications to the rear, we feel that the road width is adequate. Plus if you see the line of trees on the left in the photograph, those trees would have to be removed, which we believe is perhaps would be, and as staff s recommendation, we agree with it necessary that it provides a nice blockage and transition because the townhouses that are located to the left of that photograph across the street from the church. So, Planning Commission's position that it is appropriate to adjust the Conditional Use Permit from 24 feet back to 15 feet and that is our recommendation. William Din: Thank you Mr. Ripley. The fourth item on consent is Item #6 is Good Samaritan Episcopal Church. It's an application for modifying the Conditional Use Permit as previously approved on November 9, 2004 on property located at 848 Baker Road in the Kempsville District with two conditions. I would like to move to approve these four items on the consent agenda. Dorothy Wood: Thank you Mr. Din. Item #6 Good Samaritan Episcopal Church Page 2 Barry Knight: I second the motion. Dorothy Wood: A motion by Mr. Din and seconded by Mr. Knight. Any discussion? AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE MILLER AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved Item #6 for consent. Dorothy Wood: Thank you. 3/8/2005 11:21 PM FROM: Fax TO: 426-5661 PAGE: 002 OF 002 26 Cypress Pointe HOA Amh rst Homes Civic L eague Aragon Village Civic League Center Cyeen COA Crystal Point HOA Cypress Point Civic Assoc Diamond Lake Estates Civic League DiamondSprings/ Gardenwood Civic league Gard Lake Civic League L$J CWdens Civic League Lake Cypress Civic League Lake Edward Area Civic League Lake Shores Civic League Lake Smith Terrace, Haygood Point d Governor Square Civic League Lake Smith Civic League Lakeview Park Civic L eatue Lawson Forest Civic League Lynbrook tandit Civic League Newsome Farms Civic League Traditions at Cypress Point HOA Wesleyan Chase Civic L eague Wesleyan Forest Civic League Wesleyan Pines Campus East Community Assoc Witchduck Lake r�rin Lkcnr Northwest Beach Partnership Board Members: P.j Padrick -President, Bruce Weller - i" Vice President, Dave Tirado - 2`d Vice President, Kale Warren - Treasurer, Tuesday, March 8, 2005 Virginia Beach Planning Commission Hearing March 9, 2005 Re: Agenda Item #6 Good Samaritan Episcopal Church, modification of Conditional Use Permit. Honorable Chairperson Woods and esteemed Commissionaires, The Board of Northwest Beach Partnership wishes to express their support for Good Samaritan's application for modification. We are confident that Good Samaritan has the community's best interest in mind as they prepare for the planned expansion. We would like to take this opportunity to thank the Church for all they have done for the community. We are looking forward to the opportunity to help and further support their efforts and their good works. Thank you for the opportunity to be heard on this matter. Respectfully, Northwest Beach Partnership Board northwestbeachRartnerseverizortnet similar architectural style and of the same exterior materials and colors as the three-story office building depicted on the referenced plan. Review of the.plans for the `future retail center' for compliance with this proffer shall be determined by the Director of Planning. WITNESS the following signatures and seals this 2nd day of February, 2000. GRANTOR: The Titus Family Revocable Living Trust%% Trustee STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this 2°d day of February, 2000, by Grace E. Titus, Trustee of the Titus Family Revocable Living Trust, dated September- 441 19 Notary Public My Commission Expires ,, 3 ��� including the authority (a) to order, in writing, than any noncompliance with such conditions be remedied, and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding. (2 ) The failure to meet all conditions and restrictions shall - constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the GRANTOR shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning cf the Property, and the ordinances and the conditions may be made available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and Indexed in the name of the GRANTOR and the GRANTEE. (5) The `future retail center' depicted on the exhibit entitled "PROPOSED OFFICE BUILDING AND FUTURE RETAIL CENTER FOR TRAY A. TITUS," prepared by William Verebely, of Verebely and Associates, dated December 29, 1999, shall be constructed in a (b) Greenhouses and plant nurseries; (c) Grocery stores, carry -out food stores and convenience stores, any of which are not freestanding. These conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the GRANTEE in writing as evidenced. by a certified copy of an ordinance or a resolution adopted by the governing body of the GRANTEE, after a public hearing before the GRANTEE which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. 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. GRANTOR covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, personal representatives, and assigns, and for GRANTEE and other successors in title or interest, voluntarily, and without any requirement by or exaction from the GRANTEE or its governing body and without any element of compulsion or quid pro quo for zoning, re -zoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical 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 the GRANTOR, their successors, personal representatives, assigns, GRANTEE, and other successors in interest or title: 1. When the Property is developed the Site plan, Landscape Plan, and Building Elevation shall be developed substantially as shown on the exhibit entitled "PROPOSED OFFICE BUILDING AND FUTURE RETAIL CENTER FOR TROY A. TITUS," prepared by William Verebely, of Verebely and Associates, dated December 29, 1999 which as been exhibited to the Virginia Beach City Council and is on file with •the Virginia Beach Department of Planning. 2. The following types of business establishments are some but not all of the uses that shall be prohibited on this Property: (a) Eating and drinking establishments with drive - through windows; of the Property from R-7.5 in part to B-2; and WHEREAS, the GRANTEE's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and , WHEREAS, the GRANTOR acknowledges that the competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects cf change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the GRANTOR'S re -zoning application gives rise; and WHEREAS, the GRANTOR has voluntarily proffered, in writing in advance of and prior to the public hearing before the GRANTEE, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the B-2 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the re -zoning and the need for which is generated by the re -zoning. NOW, THEREFORE, the GRANTOR, for himself, his successors, This agreement drafted by: Albert R. Hartley, Esquire 5221 Indian River Road Virginia Beach,. Virginia 23464 PROFFERED COVENANTS, RESTRICTIONS, AND CONDITIONS FROM THE TITUS FAMILY REVOCABLE LIVING TRUST, dated September 4,1997, owner, TO THE CITY OF VIRGINIA BEACH, a municipal corporation THIS AGREEMENT, made this 2nd day of February, 2000, by and between THE TITUS FAMILY REVOCABLE LIVING TRUST, dated September 4, 1997 (hereinafter called "TITUS"), owner and GRANTOR, party of the first part, Troy Titus, contract purchaser, and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, GRANTEE, party of the second part. WITNESSETH: WHEREAS, TITUS is the owner of a certain parcel of property located at 5221 Indian River Road in the City of Virginia Beach, a portion of which is currently zoned R-7.5 and a portion of which is currently zoned B-2, which is approximately 40,950 square feet in size and described in Exhibit "A" which is attached hereto and incorporated herein by reference, said property hereinafter referred to as the "Property"; and WHEREAS, Titus has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia by petition addressed to the GRANTEE so as to change the Zoning Classification City of Virginia seam In Reply Refer To Our File No. DF-4699 TO: FROM: RE: Leslie L. Lilley William M. Macali VA INTER -OFFICE CORRESPONDENCE DATE: March 22, 2000 DEPT: City Attorney DEPT: City Attorney Conditional Zoning Application Titus Family Revocable Living Trust The above -referenced revised conditional zoning application is scheduled to be heard by the City Council on March 28, 2000. I have reviewed the subject proffer agreement, dated February 2, 2000, 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. WMM Enclosure - 37- Item V-J.7. PLANNING ITEM # 46436 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED the Ordinance upon application of TROYA. TITUS for a Conditional Change of Zoning: ORDINANCE UPON APPLICA77ON OF TROY A. TITUS FOR A CHANGE OF ZONNG DISTRICT CLASSIFICATIONFROMB-2 and R- 7.5 TO CONDITIONAL B-2 Z03001162 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGIIVIA Ordinance upon application of Troy A. Titus for a Change of Zoning District Class fication from B-2 Community Business District on property located 210 feet more or less south of Indian River Road, beginning at a point 573.68 feet east of Kempsville Road (GPIN #1465-37-0414). The proposed zoning classification change to Conditional B-2 is for commercial land use. The Comprehensive Plan recommends use of this parcel for retail, service, office and other compatible uses within commercial centers in accordance with other plan policies. Said parcel is located at 521 Indian River Road and contains 1.474 acres. CENTERVILLE - DISTRICT 1. The following condition shall be required: 1. Agreement encompassing proffer shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the proceedings. This Ordinance shall be effective in accordance with Section 107 69 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty -eighth of March. Two Thousand Voting: I1-0 (By Consent) Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks 0 R-5 AM.] Land & ilding IV. LC rgG�NN�B;=1t� w y s CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Land & Building IV, L.C. — Modification of Proffers MEETING DATE: April 12, 2005 ■ Background: An Ordinance upon Application of Land & Building IV. L.C. for the Modification of Proffers for a Conditional Change of Zoning application approved by City Council on March 28, 2000 (Troy A. Titus). Property is located at 5221 Indian River Road (GPIN 14654704140000). The Comprehensive Plan designates this site as being part of the Primary Residential Area, suitable for appropriately located suburban residential and non-residential uses consistent with the policies of the Comprehensive Plan. The purpose of the requested modification is to develop the site for a strip retail center rather than the previously approved office building. DISTRICT 1 - CENTERVILLE ■ Considerations: A Conditional Rezoning from B-2 Community Business District and R-7.5 Residential District to Conditional B-2 Community Business District was approved by the City Council on March 28, 2000. That Conditional Rezoning has two (2) proffers. Proffer 1 mandates the site layout, including ingress/egress and landscaping; and limits the architectural design of the building to reflect that of the elevation submitted and approved in 2000. The former owner of the property has sold this 1.47 acre site to someone who is not desirous of developing the property in the same manner as that approved in 2000; therefore, a modification to the proffer agreement is required. The 2000 request permitted the construction of a three (3) story, brick office building to be located at the rear of the site. The approved plan identified an area as "future retail." The new concept plan has eliminated the office building and instead indicates retail shops on the property, consisting of a one (1) story, 10,000 square foot structure. Additional details of the retail shops are provided in the attached staff report. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The parcel is an unusual size and shape, creating some difficulties in terms of determining the best use and layout for the parcel. The proposed use is compatible with the adjacent residential Land & Building IV, L.C. Page 2 of 2 neighborhood, as a buffer is proffered larger than required by the Zoning Ordinance. In addition, the majority of the retail activity is as close as possible to Indian River Road, away from the multifamily dwellings, and in close proximity to the existing commercial uses. The rear of the shopping center, typically the least desirable aesthetically, faces west, again, away from the dwelling units and toward the existing commercial services. The exterior building materials will be an upgrade to what is currently on the site as well as compared to other commercial properties in the vicinity. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve the request as proffered. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Departmen* Yke City Manager. �- e-L 4 LAND & BUILDING IV, L.C. Agenda Item # 1 March 9, 2005 Public Hearing Staff Planner: Carolyn A.K. Smith ( 10 R-5D' 0 REQUEST: / o Modification of Proffers from the Conditional Change �C of Zoning from B-2 Community Business District and ,,;, R-7.5 Residential District to Conditional B-2 Community Business District granted by the City Council on March 28, 2000. ADDRESS / DESCRIPTION: Property located 5221 Indian River Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14654704140000 2 — KEMPSVILLE 1.474 acres A Conditional Rezoning from B-2 Community Business District SUMMARY OF REQUEST and R-7.5 Residential District to Conditional B-2 Community Business District was approved by the City Council on March 28, 2000. That Conditional Rezoning has two (2) proffers: 1. When the Property is developed, the Site Plan, the Landscape Plan and the Building Elevation shall be developed substantially as shown on the exhibit entitled "Proposed Office Building and Future Retail Center for Troy A. Titus, "prepared by William Verebely, of Verebely and Associates, dated December 29, 1999, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 2. The following types of business establishments are some but not all of the uses that shall be prohibited on this Property: • Eating and drinking establishments with drive through windows; • Greenhouses and plant nurseries; • Grocery stores, carryout food stores and convenience stores, any of which are freestanding. Proffer 1 mandates the site layout, including ingress/egress and landscaping; and limits the architectural design of the building to reflect that of the elevation submitted and approved in 2000. required. The 2000 request permitted the construction of a three (3) story, brick office building to be located at the rear of the site. The approved plan identified an area as "future retail." It was understood that the retail component of the request could not to be constructed until the applicant could provide adequate area available for the required parking. The revised concept plan has eliminated the office building and depicts a strip of retail shops on the property, consisting of a one (1) story, 10,000 square foot structure. The proposed elevations depict a primarily brick fagade with storefront windows. The parking depicted on the concept plan shows the minimum number of spaces for a retail center at 1 space per 200 square feet. In the event that a restaurant would attempt to occupy space in one of the units within the building, additional parking spaces would be needed to meet the City Zoning Ordinance, as a restaurant requires more parking than a retail use - at least 1 space per 100 square feet. LAND USE AND ZONING INFORMATION EXISTING LAND USE: There is an existing structure on the property that is slated for removal. At one time, this structure was used as an office and could have been a residential dwelling unit prior to that use. SURROUNDING LAND North: . Indian River Road USE AND ZONING: . Tire sales / B-2 Community Business District South: . Offices, restaurant / B-2 Community Business District • multifamily dwellings / PD-H2 Planned Development District East: . Car wash / B-2 Community Business District • Multifamily dwellings / PD-H2 Planned Development District West: . Auto repair / B-2 Community Business District NATURAL RESOURCE AND The front portion of the site is developed with an office building and CULTURAL FEATURES: associated parking. The rear of the property has been recently cleared and is void of any mature vegetation. There is nothing of significant environmental or cultural value on this site. AICUZ: The site is in an AICUZ of less than 65 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Indian River Road is considered a six (6) lane divided urban arterial. The MTP proposes an eight (8) lane divided facility with a 155 foot wide right-of-way. A Capital Improvement Project is slated for this area (CIP NO.2-106). This involves the construction of an eight (8) lane divided highway from Centerville Turnpike to Kempsville Road, and full improvements at the Indian River Road and Kempsville Road intersection. LAND TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Indian River 66,843 ADT 26,300 ADT (Level of Existing Land Use — Road Service "C") - 48,200 ADT 111 ADT ' (Level of Service "E") Proposed Land Use 3- 452 ADT Average Dairy i nps Y as defined by square footage of existing building zoned commercially 3as defined by construction of new, 10,000 square foot retail center WATER: This site has an existing water meter that may be used or upgrade. There is a 16 inch water transmission main in Indian River Road. SEWER: City sanitary sewer is not available as there is no sanitary sewer in the vicinity of this site. Health Department approval is required for a septic system. Private grinder pumps and force main may be an option. There is a 42 inch Hampton Roads Sanitation District sanitary force main in Indian River Road. The Comprehensive Plan identifies this area as being within COMPREHENSIVE PLAN the Primary Residential Area. The Comprehensive Plan's policies recognize that suburban commercial centers and other non-residential uses can be appropriate for this area. The Plan states, "Limited commercial or institutional activities providing desired goods and services to residential neighborhoods may be considered acceptable uses on the edge of established neighborhoods provided effective measures are taken to ensure compatibility and non-proliferation of such activities." The land use planning policies and principles for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. In a general sense, the established type, size and relationship of land uses, residential and non-residential, located in and around neighborhoods should serve as a guide when considering future development. Staff recommends approval of this EVALUATION AND RECOMMENDATION request with the proffers submitted by the applicant with the rezoning. The proffers are provided below. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The parcel is an unusual size and shape, creating some difficulties in terms of determining the best use and layout for the parcel. The proposed use is compatible with the adjacent residential neighborhood as a buffer is proffered larger than required by the Zoning Ordinance. In addition, the majority of the retail activity is as close as possible to Indian River Road, away from the multifamily dwellings, and in close proximity to the existing commercial uses. The rear of the shopping center, typically the least desirable aesthetically, faces west, again, away from the dwelling units and toward the existing commercial services. The exterior building materials will be an upgrade to what is currently on the site as well as compared to other commercial properties in the vicinity. LAND AND BUILDING Agenda Item # 1 Page 3 PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFERI: When the property is developed, the site plan, landscape plan and building elevation shall be developed substantially as shown on the site plan entitled "Proposed Retail Center for Land Building, IV, L.C. 5221 Indian River Road, Virginia Beach, VA" dated November 5, 2004, made by Verebely and Associates, Architects, Chesapeake, Virginia (Site Plan), which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. PROFFER 2: In addition to those uses which are prohibited by law, the following uses shall be prohibited on the Property • Eating and drinking establishments with drive -through windows; • Greenhouses and plant nurseries; and • Grocery stores, carry -out food stores and convenience stores, any of which are not freestanding. PROFFER 3: Grantor covenants and agrees that a monument sign shall be located as shown on the Site Plan. Grantor further covenants and agrees that tenant signs shall be installed to or above tenant entrance doors, and will be box type, lighted signs. STAFF COMMENTS: The proffers listed above are acceptable. They provide assurance regarding the level of quality of the project. The City Attorney's Office has reviewed the proffer agreement dated February 14, 2005, and found it to be legally sufficient and in acceptable legal form. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. LAND AND BUILDING Agenda Item # 1 Page 4 Z O F- Q w W 0 Z_ G J m G W CD O a O cc a apt ?ritw+�Na�1 Bum w csvvzt 71311tt NVION zn=--4-aK.. A4T-. 2 3 4 5 6 7 8 9 10/12/04 CUP mini warehouse 07/13/04 Modification of Conditions 08/08/00 Change of Zoning R-7.5 to A-12 with PD- H2 overlay 03/28/00 Change of Zoning B-2 & R-7.5 to Conditional B-2 07/05/88 Reconsideration of Conditions 01/12/99 CUP auto service station 05/23/88 CUP auto repair station 10/11/94 Change of Zoning R-5D to 0-1 09/28/93 Change of Zoning R-5D to 0-1 CUP funeral home 09/28/93 CUP auto repair facility 09/24/91 Reconsideration of Conditions, Change of Zoning 02/26/91 Reconsideration of Conditions, Change of Zoning Granted Granted Granted Granted Denied Denied Withdrawn Granted Granted Granted Denied Granted Granted O Cn _Z Z O N 10 12/18/89 Reconsideration of Conditions, of Zoning 01/09/89 CUP auto repair 01/09/89 Reconsideration of Conditions, of Zoning Change Change Granted Denied Denied 11 1 1 1 1 1 1W190 `f'Ja. C�J i,�.• 4iit � � L Ye � '� St i Q � o.x 1y � .. � .� uAi!° m�atl �Q m c? �=e t �enr c � oquctyD �m zz�sa c piL����y�j it s,���`'"+C Z•'g`�v�c Goalse 4-9 ;v�ri� y�i.m ezyi G.w+a�� pffi cv Olt S c t L 0 L> « L !c C a k 7 i 3'w C 3: m f} M ZR t } Y F C r k ET i O O Qom. �+.� Cl LAND Y2S F- W `m i i W O 'AA 'U Vl w Item #1 Land & Building IV, L.C. Modification of Proffers 5221 Indian River Road District 1 Centerville March 9, 2005 CONSENT Dorothy Wood: The next order of business will be the consent items. The Vice Chair Mr. Will Din will handle this large part of the agenda. William Din: Thank you Ms. Wood. Today we have six items on the consent agenda. These items are items that we believe are unopposed and therefore are placed on consent agenda. As I call each of the items up, would the representative or the applicant please come up to the podium, state your name, your relationship to the application, and state if you have read the conditions, if there are conditions associated with that item. We will go through each of these and then summarize it. The first application that I have is Item #1, Land & Building IV, L.C. This is an application for Modifying Proffers to an existing Conditional Change of Zoning application, which was previously approved by City Council on March 28, 2000 (Troy A. Titus). Property is located at 5221 Indian River Road in the Centerville District. William Verebely: Good afternoon Madame Chairman, members of the Commission. My name is William Verebely, Verebely & Associates Architects in Chesapeake. I'm here as agent for the owner, and we've read the proffers and conditions and we concur. William Din: Thank you very much. Is there any opposition to placing this item on consent? Okay. Thank you. Mr. Verebely, we're going to have to drop you down. Your item will be the first one that we hear. William Verebely: Okay. REGULAR Dorothy Wood: Our next order of business is our regular agenda. Our Secretary Mr. Strange, will you please call Item #1? Joseph Strange: Item #l, an Ordinance upon application of Land & Building IV, L.C. for the Modification of Proffers for a Conditional Change of Zoning application approved by City Council on March 28, 2000. Property is located at 5221 Indian River Road in the Centerville District. William Verebely: Madame Chairman may I invite my opposition up? I think she is going to withdraw her opposition. Item #1 Land & Building IV, L.C. Page 2 Dorothy Wood: Yes sir. We'll be more than happy too. It's always a pleasant way to work things out. Come arm in arm. Mary McFadden: My name is Mary McFadden. Dorothy Wood: Welcome Ms. McFadden. Mary McFadden: Thank you. Dorothy Wood: Would you please give us your name again Mr. Verebely. William Verebely: My name is William Verebely. Dorothy Wood: Thank you. Mary McFadden: He invited me to look at the plans of the projected strip shopping mall, which I had felt would just increase congestion in an already dangerously congested area. He showed the plans have actually been changed from what was approved in the year 2000 to have less traffic there with the new plan. It's only one story instead of the three- story office building. And, also they've gotten easement access through the Golden Corral from the rear of the property so it won't all be accessed from Indian River Road. And, therefore, I'm able to withdraw my objection to this plan. Dorothy Wood: We really appreciate you coming down. We really appreciate you taking your time to study the item. Thank you. Mary McFadden: Thank you. Dorothy Wood: Do I hear a motion? Eugene Crabtree: I'd move that we approve. Dorothy Wood: A motion by Mr. Crabtree, seconded by Mr. Din. Is there any discussion? AYE 11 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE MILLER AYE RIPLEY AYE NAY 0 ABS 0 ABSENT 0 Item #1 Land & Building IV, L.C. Page 3 STRANGE AYE WALLER AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved the application of Land & Building IV, L.C. In Reply Refer To Our File No. DF-f 108 FROM: no Leslie L. Lilley William M. Macali V CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: March 22, 2005 DEPT: City Attorney DEPT: City Attorney Conditional Zoning Application; Land & Building IV, L.C. The above -referenced conditional zoning application is scheduled to be heard by the City Council on April 12, 2005. I have reviewed the subj ect proffer agreement, dated February 14, 2005 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. WM1VUnlb Enclosure cc: Kathleen Hassen PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy-Ste 10 Chesapeake, VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS FROM LAND & BUILDING IV, L.C. TO THE CITY OF VIRGINIA BEACH, a municipal corporation THIS AGREEMENT, made this 14th day of February, 2005, by and between LAND & BUILDING IV, L.C., Owner and Grantor (hereinafter called "L&B"), party of the first part, and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the second part. WITNESSETH: WHEREAS, L&B is the owner of a certain parcel of property located at 5221 Indian River Road in the City of Virginia Beach, which said site was granted a change of zoning to Conditional B-2 (Community Business District) by the City of Virginia Beach, Virginia City Council on March 28, 2002, which said property is described in Exhibit A attached hereto and incorporated by this reference a part hereof, said property being hereinafter referred to as "the Property;" and WHEREAS, the proffered site plan for the change of zoning on said property to Conditional B-2 depicts a "three-story office building" and "future retail center," the previously recorded proffer agreement referred to being recorded in Book 4223 at page 1176, in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia; and WHEREAS, L&B has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change this restriction in order that the three-story office building be eliminated and a one-story retail center be constructed as shown on the preliminary site layout plan and building elevation GPIN 1465 47 0414 0000 PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy-Ste 107 Chesapeake, VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 entitled "PROPOSED RETAIL CENTER FOR LAND & BUILDING IV, L.C. 5221 INDIAN RIVER ROAD VIRGINIA BEACH, VA," dated November 5, 2004, made by Verebely & Associates, Architects, Chesapeake, Virginia; and WHEREAS, the proffers contained in this agreement replace, in their entirety, the previous proffers; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible uses conflict and that, in order to permit differing uses on and in the area of the Property, and at the same time to recognize the effects of change, and a need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's re -zoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the B-2 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property which has a reasonable relation to the re -zoning, the need for which is generated by the re -zoning. NOW, THEREFORE, the Grantor, for itself, its successors and assigns, and for Grantee and other successors in title or interest, voluntarily, and without any requirement -2- PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy-Ste 107 Chesapeake, VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, re -zoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical 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 the Grantor, its successors and assigns, Grantee, and other successors in interest or title: 1. When the Property is developed, the site plan, landscape plan and building elevation shall be developed substantially as shown on the site plan entitled "PROPOSED RETAIL CENTER FOR LAND & BUILDING IV, L.C. 5221 INDIAN RIVER ROAD VIRGINIA BEACH, VA," dated November 5, 2004, made by Verebely & Associates, Architects, Chesapeake, Virginia (Site Plan), which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. 2. In addition to those uses which are prohibited by law, the following uses shall be prohibited on the Property: (a) Eating and drinking establishments with drive -through windows; (b) Greenhouses and plant nurseries; and (c) Grocery stores, carry -out food stores and convenience stores, any of which are not freestanding. 3. Grantor covenants and agrees that a monument sign shall be located as shown on the Site Plan. Grantor further covenants and agrees that tenant signs shall be installed adjacent to or above tenant entrance doors, and will be box type, lighted signs. -3- PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy-Ste 107 Chesapeake. VA 23320 Phone:757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 These conditions, however, may be repealed, amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and, if not so recorded, said instrument shall be void. 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. Grantor further covenants and agrees that: (a) 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; (b) 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; -4- PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy-Ste 107 Chesapeake, VA 23320 Phone:757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 (c) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (d) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee; WITNESS the following signatures and seals as of the date first above written. GRANTOR: LAND & BUILDING IV, L.C. By MITCHELL DUNBAR, PRESIDENT STATE OF VIRGINIA AT LARGE, IN THE CITY OF to -wit: The foregoing instrument was subscribed, sworn to and acknowledged before me on41LM� I t. ly Ryan Mitchell Dunbar, who holds the office of President, on behalf of Land & Building IV, L.C. My Term of Office Expires: ("3�'�'" Ic -5- PREPARED BW RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy-Ste 107 Chesapeake, VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 EXHIBIT A ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND, WITH THE BUILDINGS AND IMPROVEMENTS THEREON, LYING, SITUATE AND BEING IN THE CITY OF VIRGINIA BEACH, VIRGINIA, AND BEING KNOWN, NUMBERED AND DESIGNATED AS PARCEL 3, AS SHOWN ON THAT CERTAIN PLAT ENTITLED, "RESUBDIVISION OF PARCEL'2' (M.B. 96, PAGE 7, SHEET 2) AND PROPERTY OF TROY A TITUS (M.B. 131, PAGE 29), KEMPSVILLE BOROUGH, VIRGINIA BEACH, VIRGINIA," WHICH SAID PLAT IS DULY RECORDED IN THE CLERK'S OFFICE OF THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, VIRGINIA, IN MAP BOOK 258, AT PAGES 23 AND 24. BEING THE SAME PROPERTY CONVEYED TO GRANTOR BY DEED OF A.J.R. LIMITED PARTNERSHIP, L.L.P., DATED NOVEMBER 5, 2003, AND DULY OF RECORD IN THE CLERK'S OFFICE AFORESAID AS INSTRUMENT NUMBER 200312160208002. -6- CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Michael J. and Helen V. Standing / Foggs Seafood Corp., Expansion of a Nonconforming Use MEETING DATE: April 12, 2005 ■ Background: A Resolution upon Application of Michael J. & Helen V. Standing / Foggs Seafood Corporation for the Enlargement of a Nonconforming Use on property located at 415 Atlantic Avenue (GPIN 24273219130000). DISTRICT 6 — BEACH ■ Considerations: Prior to April 18, 1988, the subject site was zoned B5 Resort Commercial District, which permitted freestanding restaurants. On April 18, 1988, City Council rezoned all properties east of Atlantic Avenue to RT-1 Resort Tourist District. The RT-1 Resort Tourist District only permits restaurants as an accessory use to a motel or hotel. Freestanding restaurants, such as this one, are not permitted and are now considered nonconforming. The applicant seeks approval of an expansion of a non -conforming use, requesting enlargement of an existing freestanding restaurant at this location to include the following: 1. An area for indoor, climate controlled trash disposal, an updated kitchen, larger restrooms, a larger foyer area with an upscale retail area that will also function as a waiting area and additional dining area. The existing restaurant has approximately 10,000 square feet of floor area and the proposed expansion consists of 3,550 square feet. Onsite parking will be reduced from 28 spaces to 20 spaces. 2. The addition of one sign on the building oriented toward the Atlantic Ocean. The new sign will be similar in style to the existing building signs on the front of the structure facing Atlantic Avenue with a surface area not to exceed ten square feet. The applicant was previously granted an expansion to this nonconforming restaurant in 1993 for an outdoor cafe and kitchen renovations. ■ Recommendations: Pursuant to Section 105(e) of the City Zoning Ordinance, a nonconforming use may be modified only if the City Council finds that the proposed use, as modified, will be "equally appropriate or more appropriate to the district than is the existing nonconformity." Standing / Foggs Seafood Page 2 of 2 This proposed change is equally as appropriate to the district as the existing nonconformity. The proposed addition is consistent with the area and the expansion in floor area for the use will not result in any greater nonconformity than exists now. Approval is recommended with the following conditions: 1. The site shall be developed substantially in accordance with the submitted plans titled "Schematic Site Plan for Waterman's Addition" prepared by Thomas Hamilton Associates, which has been exhibited to the City Council and is on file in the Department of Planning. 2. The building renovations shall substantially adhere to the exhibits titled 'Waterman's Addition Interior" and 'Waterman's Addition Exterior" prepared by Thomas Hamilton Associates, which has been exhibited to the City Council and is on file in the Department of Planning. 3. The retail area on the site shall not exceed 660 square feet as indicated on the plan. 4. One building sign shall be allowed oriented toward the Atlantic Ocean in accordance with the dimensional requirements listed in Section 2120) of the City Zoning Ordinance. ■ Attachments: Staff Review Disclosure Statement Resolution Recommended Action: Staff recommends approval with conditions. Submitting Department/Agency: Planning Department City Manager. k , I A RESOLUTION AUTHORIZING THE EXPANSION OF A 2 NONCONFORMING USE ON PROPERTY LOCATED AT 415 3 ATLANTIC AVENUE, IN THE BEACH DISTRICT 4 5 WHEREAS, Michael J and Helen V. Standing/Foggs Seafood 6 Corp., (hereinafter the "Applicant"), has made application to the 7 City Council for authorization to expand a nonconforming use, a 8 freestanding restaurant, situated on a certain lot or parcel of 9 land having the address of 415 Atlantic Avenue, in the RT-1 10 Resort Tourist District; and 11 WHEREAS,. the said use, a freestanding restaurant, is not a 12 permitted use in the RT-1 Resort Tourist District, but is 13 already existing on the parcel and is a nonconforming use; and 14 WHEREAS, pursuant to Section 105 of the City Zoning 15 Ordinance, the expansion of a nonconforming use is unlawful in 16 the absence of a resolution of the City Council authorizing such 17 18 19 20 21 22 23 24 25 action upon a finding that the proposed use, as expanded, will be equally appropriate or more appropriate to the zoning district than is the existing use; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Council hereby finds that the proposed use, as expanded, will be equally appropriate to the district as is the existing use. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF 26 VIRGINIA BEACH, VIRGINIA: 27 That the proposed expansion of the Applicant's use of the 28 parcel is hereby authorized, upon the following conditions: 29 1. The site shall be developed substantially in 30 accordance with the submitted plans titled "Schematic Site Plan 31 for Waterman's Addition" prepared by Thomas Hamilton Associates, 32 which has been exhibited to the City Council and is on file in 33 the Department of Planning. 34 2. The building renovations shall substantially adhere to 35 the exhibits titled "Waterman's Addition Interior" and 36 "Waterman's Addition Exterior" prepared by Thomas Hamilton 37 Associates, which has been exhibited to the City Council and is 38 on file in the Department of Planning. 39 3. The retail area on the site shall not exceed 660 40 square feet as indicated on the plan. 41 4. One building sign shall be allowed oriented toward the 42 Atlantic Ocean in accordance with the dimensional requirements 43 listed in Section 212(j) of the City Zoning Ordinance. Adopted by the Council of the City of Virginia Beach on the day of April, 2005. CA-9586 OID\Ordres\nonconforming-Foggs.doc R-1 March 30, 2005 K APPROVED AS TO CONTENT: 3-zo,o<- Planning epartment APPROVED AS TO LEGAL SUFFICIENCY: J�/L� �X, J&/- City Attorney's 6ffice MICHAEL J. AND HELEN V. STANDING/FOGGS SEAFOOD CORPORATION Staff Planner: Barbara Duke REQUEST: Enlargement of a Nonconforming Use for a restaurant ADDRESS / DESCRIPTION: Property located at 415 Atlantic Avenue GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24273219130000 6 - BEACH 15,000 square feet Prior to April 18, 1988, the subject site was zoned B5 Resort SUMMARY OF REQUEST Commercial District, which permitted freestanding restaurants. On April 18, 1988, City Council rezoned all properties east of Atlantic Avenue to RT-1 Resort Tourist District. The RT-1 Resort Tourist District only permits restaurants as an accessory use to a motel or hotel. Freestanding restaurants, such as this one, are not permitted and are now considered nonconforming. The applicant seeks approval of an expansion of a non -conforming use, requesting enlargement of an existing freestanding restaurant at this location to include the following: 1. An area for indoor, climate controlled trash disposal, an updated kitchen, larger restrooms, a larger foyer area with an upscale retail area that will also function as a waiting area and additional dining area. The existing restaurant has approximately 10,000 square feet of floor area and the proposed expansion consists of 3,550 square feet. Onsite parking will be reduced from 28 spaces to 20 spaces. 2. The addition of one sign on the building oriented toward the Atlantic Ocean. The new sign will be similar in style to the existing building signs on the front of the structure facing Atlantic Avenue with a surface area not to exceed ten square feet. The applicant was previously granted an expansion to this nonconforming restaurant in 1993 for an outdoor cafe and kitchen renovations. STANDING / FOGGS Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Freestanding restaurant SURROUNDING LAND North: . Hotel / RT-1 Resort Tourist District USE AND ZONING: South: . Hotel/RT-1 Resort Tourist District East: . Boardwalk West: . Hotel / RT-1 Resort Tourist District NATURAL RESOURCE AND CULTURAL FEATURES: A freestanding restaurant has existed on this site for 50 years. AICUZ: The site is in an AICUZ of less than 65 to 70dB Ldn surrounding NAS Oceana. ZONING HISTORY: MeAa01 Fig+ molan Rtn»d:»a Map M-7 Not to S!Fogges Seafood CaMoration 08� 61 S 1, y \ � R RT-1 Q5 ?K ST. °} s<e O RT-I \ 1 1 RTz3 i •1� ,i °pC0 \ �1 gR 7 III I Imo. / 7 11 Non -Conforming Use # 1 — 04/18/88 — Rezoning from B-5 to RT-1 — Granted 01/12/93 — Expansion to Nonconforming Use — Granted # 2 — 03/14/95 — CUP communication tower — Granted # 3 — 04/09/91 — CUP marina — Granted IMPACT ON CITY SERVICES The subject request will not have a significant impact on City services. The Comprehensive Plan recognizes this site as being within COMPREHENSIVE PLAN the Resort Area. The Comprehensive Plan states that we must continue to improve the quality of the Resort Area's physical environment. STANDING / FOGGS Page 2 Staff recommends approval of this EVALUATION AND RECOMMENDATION request. Section 105(d) of the City Zoning Ordinance states that no nonconforming use or structure shall be enlarged, extended, reconstructed, or structurally altered unless the City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity." Staff finds that the proposed enlargement is reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non -conforming use. The request, therefore, is acceptable with the conditions below. CONDITIONS 1. The site shall be developed substantially in accordance with the submitted plans titled "Schematic Site Plan for Waterman's Addition" prepared by Thomas Hamilton Associates, which has been exhibited to the City Council and is on file in the Department of Planning. 2. The building renovations shall substantially adhere to the exhibits titled ' Waterman's Addition Interior" and ' Waterman's Addition Exterior" prepared by Thomas Hamilton Associates, which has been exhibited to the City Council and is on file in the Department of Planning. 3. The retail area on the site shall not exceed 660 square feet as indicated on the plan. 4. One building sign shall be allowed oriented toward the Atlantic Ocean in accordance with the dimensional requirements listed in Section 2120) of the City Zoning Ordinance. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. STANDING I FOGGS Page 3 'N I STANDING / FOGGS Page 4 ATLALI-rim OGra4 ru ATL,AW (C, AVENUE �601 Jz/w 5GI-IE//1ATIG SITE PLAha WATEK/AAMS ADDITMJ STANDING / FOGGS Page 5 Z Q o. w 0 W U) O a O w a Z a J a w O O J U- c W w CL w a STANDING / FOGGS Page 6 Z O H Q w J w 0 Z_ G J_ m G w U) O a O w o. STANDING / FOGGS Page 7 NOIJ,Y3I'IddV Ba 9NIWHOdNO37N-ON ECU E Iw CO UJ JO U. Gn V C E r CJ v t r A G uj 2 C U W_ O C O U R it U C O N 6 C N y C N U CJ C - N `• T' C cA ayc� y`ny °c=�`oovin C `n •J. J CCL R a o N z C C y � I y G y y O vT C - N nT J Vi - O 16 U H y - U C O N y 9 _G O G N W C _ :G R S t0 G Ix v 2_ 0 = v v LL WF- FL y :, z n c a 31LE m c - tLuCL c E E y 3 R= O c n a 3g, rJ L y J JI `J ^G v O U _n u y C R�' n N R 0 C O � ETC a N- - J c o CC R-� U U n` 0 0 5Ell v C NOIJ,t"'NTTddV Ba 9XIWHOdNO3-KON STANDING / FOGGS Page 8 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Rick Graham — Conditional Use Permit (automotive repair garage) MEETING DATE: April 12, 2005 ■ Background: An Ordinance upon Application of Rick Graham for a Conditional Use Permit for an automotive repair garage on property located at 1228 Jensen Drive (GPIN 24173267690000). DISTRICT 6 — BEACH ■ Considerations: The applicant requests a Conditional Use Permit to allow the operation of an auto repair garage within an existing 6,000 square foot building in the Owls Creek Commerce Center. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The proposal is compatible with the other uses within the industrial center and with adjacent residential neighborhood as there will be no activity in the rear of the site. There is an existing wooded buffer adjacent to the residential area that will remain, and the applicant owns a storage yard across Jensen Drive where any outdoor storage of vehicles will occur. This area is exactly where such a use belongs — in the highest noise zone (greater than 75), within the Accident Potential Zone 1, and within an existing industrial park. The Planning Commission placed this item on the consent agenda because this type of use is appropriate in the noise zone of greater than 75 dB Ldn and in an accident potential zone, the use is consistent with the Comprehensive Plan's recommendations, and staff recommended approval. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: The applicant shall obtain all necessary permits, inspections and approvals form the Fire Department and the Permits and Inspections Division of the Planning Department before occupancy of the building. A Certificate of Occupancy of the use shall be obtained from the Permits and Inspections Division of the Planning Department. Rick Graham Page 2 of 2 2. All auto repair must take place inside the building. 3. No outside storage or display of equipment, parts, or materials shall be permitted. 4. No outdoor storage of vehicles in a state of obvious disrepair shall be permitted on this property. If vehicles in this condition require storage, then such vehicles shall be stored within the building or within the fenced bulk storage area owned and operated by the applicant across the street on Jensen Drive. 5. All outdoor lighting shall be shielded to direct light and glare onto the premises; said lighting and glare shall be deflected, shaded, and focused away from adjoining property. Any outdoor lighting fixtures shall not be erected any higher than 14 feet. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting DepartmenVAgency: Planning Department *44�� : City Manager RICK GRAHAM Agenda Item # 4 March 9, 2005 Public Hearing Staff Planner: Carolyn A.K Smith REQUEST: Conditional Use Permit for an automotive repair garage. ADDRESS / DESCRIPTION: Property located at 1228 Jensen Drive. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24173267690000 6 - BEACH 25,728 square feet The applicant requests a Conditional Use Permit to allow the SUMMARY OF REQUEST operation of an auto repair garage within an existing 6,000 square foot building in the Owls Creek Commerce Center. LAND USE AND ZONING INFORMATION EXISTING LAND USE: There is an existing 6,000 square foot building on the property that has three (3) separate units. One (1) of those units is currently occupied with an auto parts and service operation; the other units are currently vacant. SURROUNDING LAND North: . Office warehouse / 1-1 Light Industrial District USE AND ZONING: South: . Woods, single-family dwellings / R-10 Residential District Community Business District East: . Office warehouse / 1-1 Light Industrial District West: . Office warehouse / 1-1 Light Industrial District NATURAL RESOURCE AND The site is within the Chesapeake Bay watershed. There are no CULTURAL FEATURES: significant environmental resources on the site as it is developed with a 6,000 square foot structure and parking. also encumbered by a restrictive easement owned by the United States Department of the Navy. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Birdneck Road is a two (2) lane suburban arterial roadway. It is designated in the MTP as a 100 foot divided right-of-way with a multi -use path. Birdneck Road is listed in the CIP to be upgraded from an existing two (2) lane facility to a four (4) lane facility with construction scheduled to begin in December 2006. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Birdneck Road 18,427 ADT 13,600 ADT (Level of Existing Land Use — 42 Service "C")—15,000 ADT ADT ' (Level of Service "E") Proposed Land Use 3- 110 ADT 'Average Daily Trips 2 as defined by typical light industrial uses allowed under the 1-1 District 3 as defined by 6,000 square feet of auto garage service WATER: This site must connect to City water. There is a six (6) inch water main in Jensen Drive. SEWER: This site must connect to City sanitary sewer. Analysis of Pump Station 119 and the sanitary sewer collection system may be required to ensure future flows can be accommodated. There is a private eight (8) inch sanitary sewer main in Jensen Drive. The Comprehensive Plan recognizes this area as being within COMPREHENSIVE PLAN the Primary Residential Area. The site is located just outside the border of Strategic Growth Area 8. The land use planning policies and principles for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. The established type, size, and relationship of land use, both residential and non- residential, in and around these neighborhoods should serve as a guide when considering future development. Staff recommends approval of this EVALUATION AND RECOMMENDATION request with conditions. The recommended conditions are provided below. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The proposal is compatible with the other uses within the industrial center and with adjacent residential neighborhood as there will be no activitv in the rear of the site. In fact, there is an existing wooded.t that will remain and the applicant owns a storage yard across Jensen Drive where any outdoor storage of vehicles will occur. Staff's position is that this is exactly where such a use belongs — in the highest noise zone (greater than 75), within the Accident Potential Zone 1, and within an existing industrial park. CONDITIONS 1. The applicant shall obtain all necessary permits, inspections and approvals form the Fire Department and the Permits and Inspections Division of the Planning Department before occupancy of the building. A Certificate of Occupancy of the use shall be obtained from the Permits and Inspections Division of the Planning Department. 2. All auto repair must take place inside the building. 3. No outside storage or display of equipment, parts, or materials shall be permitted. 4. No outdoor storage of vehicles in a state of obvious disrepair shall be permitted on this property. If vehicles in this condition require storage, then such vehicles shall be stored within the building or within the fenced bulk storage area owned and operated by the applicant across the street on Jensen Drive. 5. All outdoor lighting shall be shielded to direct light and glare onto the premises; said lighting and glare shall be deflected, shaded, and focused away from adjoining property. Any outdoor lighting fixtures shall not be erected any higher than 14 feet. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. i i Z Q J a H N W O a X a a Z G J m LL O Q IL m 0 O O a kil ,. ON 2/25/03 Granted 01/28/93 Granted m•:Eel•- • • • - • -• m•role]-MISMI• .•- • -•. •. .•- -• 0 H Z Z N O m 8. O i L` � 4 0 m L� •C N W O. Q O N O go f0 = 0 C L D O c eA w N$-� E- N �±am toY�o� rdea ms�rr.aa ov N m O o m E N = `.. m C= A N m. m m 44 � b t m 4-D tq m m A`" O L� 4esp� F i Etty, o m �_m a d 96 s C= ( c a o 2 d43aim t 914 o.EIL A1E�pO" N Cm'a U cvi m C c-_ c-fq�•8 � fl•E U�... a GL O a" € E C• �` am�N- $ a�U .c mL m o m E cem m tp ' C L G 'a0 M 4 Y+ C 3mmq esc`m i���,'c gm��tY ,ccmvi:n a'.00W a�c`EBt�o:.=ecv ..�Ovmia 00>>5 0.0 O C U_ mL c i = c O d E o Li i m c ro ° I m �Em m a �a a ash` S E in� O I • , ! tt C jj V �' ¢ CtU 0 U � O ¢ �, .tic cacti= P 'v 2�' ffi � 0 Om�mv fl¢ ®oQ Q QQ m ri Ha ai E c a E oC2 . ` O W b it JR c aUc o m R.-m I© ro ;m c I c m c O n o CEL ]Ail cft 18> N O C G L3=� �` 7'... .a41 ._O i sue. CtG .Lm c { -•p st R-p 0 C Z 2 LU W D O V U) W DEPARTMENT OF THE NAVY W NAVAL AIR STATION OCEANA 1750 TOMCAT BOULEVARD VIRGINIA BEACH: VIRGINIA 23460-2168 IN REPLY REFER TO: 5726 Ser 33/ 163 February 17, 2005 Ms. Carolyn A. K. Smith City of Virginia Beach Department of Planning Municipal Center, Building 2, Room 115 2405 Courthouse Drive Virginia Beach, VA 23456-9040 Dear Ms. Smith: Thank you for the opportunity to review the Conditional Use Permit Application forwarded by your Planning Commission Routing Slip dated January 3, 2005 (routed January 18, 20051, covering an automobile repair garage at 1228 Jensen Drive. A Real Estate Contracting Officer ;at Naval Facilities Engineering Command, Mid -Atlantic has completed a thorough review of the proposed Conditional Use Permit Application. I have reviewed and support the attached copy of the Review and Findings that determined the use of the property for the automotive repair garage would be allowed under Paragraph 5(15) of the Declaration of Taking, as long as, the facility does not exceed the 120 feet above mean sea level height restriction. Be aware that our determination is based on Mr. Grahams representations of the use of the property in the permit application. Any change in use from that represented will render this determination void. Additionally, be advised that the Navy will periodically conduct random reviews, in the field, of the properties encumbered by covenants and restrictions to ensure that the interests of the United States are protected. If there are any questions, please contact Mrs. Patty Hankins at 322-4928. and very respectfully, e' r T. KEE T ap U.S Navy ffi ;2 Co riding ficer _ s Enclosure: Real Estate Contracting ffi is Review And Findings Copy to: COMNAVREG MIDLANT Mayor Meyera Oberndorf Virginia Beach City Council NAVFAC MIDLANT (Code DRE82/RES) Item #4 Rick Graham Conditional Use Permit 1228 Jensen Drive District 6 Beach March 9, 2005 CONSENT William Din: The next item that I have is Item #4, Rich Graham. This is an application by Mr. Graham for a Conditional Use Permit for an automotive repair garage on property located at 1228 Jensen Drive in the Beach District. There are five conditions. Rick Graham: Good afternoon members of the Planning Commission. I'm Rick Graham. I'm half owner Graham's Customized Shop. William Din: Thank you sir. Have you read the conditions and do you agree with those? Rick Graham: I have read them and I agree. William Din: Thank you. You might be aware but we have received a letter just prior to this meeting from a Ms. Cornick concerning this item. Have you read that issue also? Rick Graham: No, I haven't read that one. William Din: You might want to take a look at that. Ms. Prochilo can provide you with a copy of it. I think we can still keep this on consent. I think this is might be resolved between now and Council. So you might just be aware of that at this point. Rick Graham: Okay. William Din: We're going to continue with this on consent. Rich Graham: Thanks. William Din: Is there any objection to placing this on consent? Thank you Mr. Graham. Ms. Anderson will explain why we placed this on consent. Janice Anderson: Yes. Thank you. This is an application for a Conditional Use Permit for an automobile repair garage. It's to be located at an existing building that is located in an existing industrial park. The AIZUZ Js greater than 75 dbs and it is also an accident potential zone area so we believe this is a proper use in this area. There are conditions that were placed on this application that auto repair would be done inside the building. That there would be no outside storage of equipments or parts, and if any vehicles are in disrepair they would be required to be stored not on this property but across the street on Item #4 Rick Graham Page 2 a bulk storage area that has already been approved. The reasoning is that it does back up to a residential neighborhood and I believe as Mr. Din has stated, the letter that we have in opposition hopefully can be worked out prior to Council. The understanding that this is going to be a new building built but this Conditional Use Permit was requested for an existing building in this industrial park. And, we believe this is a proper use for this area and recommend approval. William Din: Thank you Ms. Anderson. The second item on consent is Item #4, Rick Graham. It's an application for a Conditional Use Permit for automotive repair garage on property located at 1228 Jensen Drive in the Beach District with five conditions. I would like to move to approve this item on the consent agenda. Dorothy Wood: Thank you Mr. Din. Barry Knight: I second the motion. Dorothy Wood: A motion by Mr. Din and seconded by Mr. Knight. Any discussion? AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE MILLER AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved Item #4 for consent. Dorothy Wood: Thank you. MAR-09-2005 12:00 P . 02 i02 Jane Gatlin Cornick 1168 Beautiful St. Virginia Beach, Va. 23451 757-581-6912 March 8, 2005 City of Virginia Beach Planning Commission Dear Ms. Prochilo, 1 am in receipt of a letter informing me of the intent to put an auto repair sh6p on the property at 1228 Jensen Dr. (2417 3267690000), which is adjacent to my property at 1168 Beautiful St_ I am officially stating that I do not want this garage near my home. The current buildings which are near the area promised that a privacy fence:would be put up tv protect our homes on beautiful street from being exposed to their rears, as well as the comings and goings of their customers. This privacy fence has yet to be erected. We do not want anothor building in this industrial (business park to be put up without any written contractual agreement that a privacy fence will be erected prior to the completion of the project. There are: small children and elderly people living on Beautiful St. who have made it their home. Beautiful street is a safe and wholesome environment where you can take walks, sit on your porch, and have barbeyues in your back yard. We should not be disturbed with the everyday commotion of an auto repair shop in our back yards. If built, this Garage must have reasonable hours of operation. They should not be opened hetarc 8:00a.m. daily, and the must close by 9:00p.m nightly. These stipulation, (a privacy fence al)d hours of operation) are not negotiable. Please take our homes and R:Lmily into consideration when snaking this discussion about our future. Sincerely, Jane G_ Cornick 7nT01 D M-�P CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: James E. Miller — Conditional Use Permit (bulk storage yard) MEETING DATE: April 12, 2005 ■ Background: An Ordinance upon Application of James E. Miller for a Conditional Use Permit for a bulk storage yard on property located at 593 South Birdneck Road (GPIN 24164830210000). DISTRICT 6 — BEACH ■ Considerations: The applicant requests a Conditional Use Permit for a Bulk Storage Yard. The applicant is a one -person operation that temporarily stores cut timber for lumber mills. Hours of operation vary with the delivery of the cut timber from Monday through Saturday. This application is the result of a Notice of Zoning Violation that the owner of the property received for bulk storage on the property. The use is consistent with the Comprehensive Plan's recommendations for this area and, with the conditions recommended below, is compatible with the adjacent properties. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. Where no existing mature landscaping is located along the perimeter of the storage yard adjacent to the neighboring properties, Category VI screening, as specified in the Landscape, Screening, and Buffering Specifications and Standards for the City of Virginia Beach is required. 2. The limits of the bulk storage area shall be confined to the designated locations depicted on the submitted plan entitled Site Layout for James E. Miller dated 01/03/05. 3. A six foot high wood privacy fence shall be installed along the rear and sides of the bulk storage yard area up to the western side of the Dominion Virginia Power easement. James E. Miller Page 2 of 2 4. To provide for erosion and sediment control, the area at the entrance to the bulk storage yard to the rear of the existing asphalt parking area shall be graded and compacted and railroad ballast acceptable to the Development Services Center shall be installed. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Departmen ---, City Manager: `� JAMES E. MILLER Agenda Item # 3 March 9, 2005 Public Hearing Staff Planner: Karen Prochilo REQUEST: Conditional Use Permit for bulk Storage Yard. ADDRESS / DESCRIPTION: Property located at 593 South Birdneck Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24164830210000 6 - BEACH 2.38 Acres The applicant requests a Conditional Use Permit for a Bulk SUMMARY OF REQUEST Storage Yard. The applicant is a one -person operation involving the temporary storage of cut timber for the lumber mills. Hours of operation vary with the delivery of the cut timber from Monday through Saturday. This application is the result of a notice of zoning violation that the owner of the property received for bulk storage on the property. LAND USE AND ZONING INFORMATION EXISTING LAND USE: An existing office/warehouse with parking is located on the front portion of this site. SURROUNDING LAND North: . Undeveloped / 1-2 Industrial District USE AND ZONING: South: . Contractors storage yard / 1-1 Industrial District East: . Across South Birdneck Road is a hotel laundry facility / 1-1 Industrial District West: . Duplexes / R-5D Residential District NATURAL RESOURCE AND There are no significant natural resources or cultural features associated CULTURAL FEATURES: with this site. JAMES E. MILLER Agenda -Item # 3 Page 1 AICUZ: The site is in APZ-2 and an AICUZ of greater than 75 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): South Birdneck Road in this vicinity is a two lane undivided minor suburban arterial. There is a current CIP Project 2-149, which would widen Birdneck from a two-lane roadway to a four -lane divided facility. Right-of-way acquisition is in process. Construction is scheduled to begin December 2006. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic S. Birdneck Road 22,312 ADT 13,600 ADT (Level of Existing Land Use — Service "C") 80 ADT 15,000 ADT' (Level of Proposed Land Use 3- Service "D") 10 ADT 16,200 ADT' (Level of Combined land use — 90 Service "E") ADT 'Average Daily Trips s as defined by office / warehouse 3as defined by bulk storage yard (one truck) FIRE: Bulk storage of combustible materials shall comply with the Virginia Statewide Fire Prevention Code. The Comprehensive Plan recognizes this area as being within COMPREHENSIVE PLAN Strategic Growth Area 8 East Oceana Area that is constrained by floodplain, high noise and accident potential zones. Properties located in this vicinity of Birdneck Road are suitable for low intensity industrial and other utilitarian activities. Staff recommends approval of this EVALUATION AND RECOMMENDATION request with conditions. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The proposal is compatible with the adjacent properties. CONDITIONS 1. Where no existing mature landscaping is located along the perimeter of the storage yard adjacent to the neighboring properties, Category VI screening, as specified in the Landscape, Screening, and Buffering Specifications and Standards for the City of Virginia Beach is required. JA 2. The limits of the bulk storage area shall be confined to the designated locations depicted on the submitted plan entitled Site Layout for James E. Miller dated 01/03/05. 3. A six foot high wood privacy fence is required along the rear and sides of the bulk storage yard area up to the western side of the Dominion Power easement. 4. At the entrance to the bulk storage yard to the rear of the asphalt parking, grade and compact the soil and provide railroad ballast acceptable to the Development Services Center. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. Colo& yaws Cl) a a o� c5 O O a F- oC W IL O w a O z W M 1 2 3 4 5 6 7 8 9 10 E. Miller 07/13/04 Rezoning B-2 & R-10 to Conditional 1-1 09/10/02 Conditional Use Permit for automobile repairs, painting & restoration 12/11/01 Conditional Use Permit for communication tower. 10/23/01 Conditional Use Permit for automobile repairs facility, painting, restoration & storage area. 10/09/01 Subdivision Variance 04/11/00 Variance to Subdivision Ordinance 11/10/98 Rezoning B-1 & AG-1 to Conditional 1-1 03/26/96 Subdivision Variance 07/08/85 Conditional Use Permit for contractor storage yard 06/22/81 Conditional Use Permit for bulk storage yard. JA Granted Granted Granted Granted Granted Granted Granted Granted Granted Granted 0 z z 0 N 13 -Z 72 3 5 eosin Cc *E *E G. —44 as 0 r: :E T Dino m— I a - w uj— c A 0 j. s -5 S:r 55- 0 a gg ES 8.2-9 43--: -am 0 -cc 2 0 -=Osa.2,g , -6 a j 0 ai ? >e ? 4c 0 2 iq c *C- M c — 0 . 82F Q q3 2 E — cc b2&-- 7E a :a- 00 ass f. It 23 -S z C 'El§ �Er 'S � 22. z z 'A e 3 . ell 18,120 E "ll 0 12 100 1 r 03 or CA .0 m =0 C� 4� gt 1 3 lw� 0 su 00 8 1 "27, J,IWU�d �SIl rNIJOIJI(NO3 NOI��"JI�ddV w 0I 0 ID 12- c C. H. g d.5Eij, C 4%1 ID LO E M a. • 00 W .04 cc Wc 41 10 = 21 C, W Item #3 James E. Miller Conditional Use Permit 593 South Birdneck Road District 6 Beach March 9, 2005 CONSENT William Din: The next item that I have is Item #3, James E. Miller. This is an application by Mr. Miller for a Conditional Use Permit for bulk storage on property located at 593 South Birdneck Road in the Beach District. There are now four conditions. James Miller: Yes. I'm James Miller. Dorothy Wood: Welcome Mr. Miller. William Din: Have you read the conditions? James Miller: I went through most of them. Yes. William Din: Do you agree with the four conditions being placed on there? James Miller: The only one is for gravel. That's my landlord has stated that this summer he is going to asphalt that all the way around the drive for his property. He has got it stated. For the fence, I would like to put a stockade fence being that I have to move the fence a little better than 10 feet in behind the natural barrier. I do have pictures of the natural barrier. It's over 10 feet wide and over 6 something feet tall. I don't want to cut any of the trees down. That is a natural block. Dorothy Wood: We'll have to hear it. William Din: We'll have to hear this issue. If you want to try to revise some of these conditions, you might want to get with Ms. Prochilo there, and try to get this straight. We'll hear the issue when it comes back up. James Miller: Okay. Thank you. William Din: Thank you sir. REGULAR Dorothy Wood: Our next one Joe. Item #3 James E. Miller Page 2 Joseph Strange: The next one is Item #3, James E. Miller. An Ordinance upon Application of James E. Miller for a Conditional Use Permit for a bulk storage yard on property located at 593 South Birdneck Road, District 6, Beach. Dorothy Wood: Mr. Miller, welcome back. James Miller: I talked to the lady out in the hallway. Dorothy Wood: Could you tell us your name again sir. James Miller: James Edward Miller. Dorothy Wood: Thank you sir. James Miller: I talked to the lady she said to explain to you why we had trouble with a wooden fence before. The people who lived behind it cut it down and used it for their firewood. But, with the way the shrubbery is and everything else that I have in the trees, I'm going to be moving the fence about twelve feet further into the property. And there is already a blockade there. I could put up a stockade fence and that would be give a better blind than a chain linked fence. Dorothy Wood: What about the soil? The parking? James Miller: The gravel? Dorothy Wood: Yes sir. James Miller: I could put gravel in but my landlord is planning on the summer asphalting it all the way around that greenhouse. We've had problems with the greenhouse leaving the sprinklers on and had big frog ponds out there. It's hard to dry out a road when it is solid wet all the time. Dorothy Wood: Thank you sir. Ronald Ripley: Can I ask a question? Dorothy Wood: Certainly. Ronald Ripley: I'm trying to understand the fence. Did you say you're going to bring the fence to the interior of the property? James Miller: Yes. I have a picture of where basically where the fence would be from where it was sir. Can I bring this to you? Ronald Ripley: Oh sure. Item #3 James E. Miller Page 3 James Miller: I have this hedge now. Ed Weeden: You need to return to the mic and explain the photo. James Miller: I have a hedge that is over 6 foot tall right now, and it is almost ten feet wide at this moment. I would bring it in on to Mr. Yoder's property, the fence inside so they would have to crawl over the top of the hedge and everything else to even get to the fence. That would be a little bit better blockade. Ronald Ripley: Mr. Scott, is that what you all envisioned bringing the fence to the inside? Dorothy Wood: Is there any other discussion? Ronald Ripley: I was asking Mr. Scott a question. Dorothy Wood: Okay. Sorry. Karen Prochilo: This applicant came in and we requested a fence behind the residential, which is requirement for bulk storage, landscaping Category 4 with fencing. The original fence he had out there, he had told me, was a wood fence, but it had been destroyed by the tenants that lived behind it. They burned and demolished it. So, our suggestion was to do a chain link fence so you wouldn't have that problem. He has now come forward and said that he would be happy to do a wood fence since the previous tenant has since moved and he's not having that problem with people again. So we're willing to do it either way, wood or chained link but bare in mind that it is a bulk storage facility. Chain link might last a little longer than the wood, but he is in the business with wood, so we can go either way. Ronald Ripley: My question was if I understood what he wanted to do he wanted to do the fence inside of the existing vegetation. It looks like it's kind of grown up. Is that what you envisioned? Karen Prochilo: Right. There is some overgrown vegetation there. We suggested that he clean it out, a little bit of it but that vegetation was actually planted by him. There are some mature trees to the right and left of where he has planted. He has only taken the photograph and I don't know if you noticed the mature vegetation that was surrounding it. This area that he has planted was where the fence was originally. So our suggestion is that he clean it out and put a fence behind it. Ronald Ripley: He's okay with what he suggested? Karen Prochilo: Yes. Dorothy Wood: Any other discussion? Item #3 James E. Miller Page 4 William Din: What about the asphalt? Is the asphalt going to cover the entire area? James Miller: No. Karen Prochilo: No. The asphalt was for the entrance. The entrance going from the asphalt area into the bulk storage area and it wouldn't completely consume the entire bulk storage area. William Din: So, the asphalt will meet the intent of putting this gravel there. Karen Prochilo: Well, what we need to do is determine when the owner is going to be actually doing that asphalt. Robert Miller: Why don't we and excuse me for interrupting. Dorothy Wood: Certainly Mr. Miller. Robert Miller: Why don't we agree as Mr. Miller has said that he'll put the stone in and we'll put the stone in and as they come back later we'll do asphalt. Karen Prochilo: That was our suggestion to him earlier. Dorothy Wood: Thank you so much. James Miller: I'm happy. Dorothy Wood: Are there any other comments? Robert Miller: I'd like to make a motion to approve. Dorothy Wood: Thank you. A motion by Bob Miller and seconded by Mr. Crabtree. Janice Anderson: Excuse me. Is that with the change to be a wood fence? Robert Miller: Yes. Janice Anderson: Okay, with the change with the wood fence. Okay. Dorothy Wood: Thank you ma'am. Thank you so much for coming down. James Miller: Thank you. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE Item #3 James E. Miller Page 5 CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE MILLER AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE Ed Weeden: By a vote of 11-01 the Board has approved the application of James Miller. Dorothy Wood: Thank you. L. APPOINTMENTS Community Policy and Management Team — CSA At Risk Community Services Board Francis Land House Board of Governors Health Services Advisory Board Human Rights Commission Investment Partnership Advisory Committee Minority Business Council Open Space Subcommittee Parks and Recreation Commission Performing Arts Theatre Advisory Committee Personnel Board The Planning Council Towing Advisory Board M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V 0 I M B L DATE: April 5, 2005 C E S L D C M R C A W I J L A N R H N I E D 0 A D D E M U L W Z Y N N D 0 E I E S 0 AGENDA E E E A 0 R V D V 0 0 ITEM # SUBJECT MOTION VOTE L R S N X F E T A N D I BRIEFING: A-1 RESORT AREA MOBILITY PLAN (RAMP) TRAFFIC/CIRCULATION Dean Block, Director, Department of Public Works 2 BUS RAPID TRANSIT (BRT) Councilman Maddox Michael Townes, Executive Director - Hampton Roads Transit (HRT) B JOINT LAND USE STUDY (JLUS) Robert Scott, POLICY COMMITTEE Director of Planning Il/III/ CERTIFICATION OF CLOSED Certified 11-0 Y Y Y Y Y Y Y Y Y Y Y NNNI- SESSION E F-1 MINUTES March 22, 2005 Approved 10-0 Y Y Y Y Y Y Y Y Y Y A B S T A I N E D G/H-1-a PUBLIC HEARINGS No Speakers LEASE OF CITY PROPERTY Giovanni's Restaurant — 2006 Atlantic Avenue b Keifers Bar and Grill — 2218 Atlantic Avenue I c Rockfish Cafe — 1601 Atlantic Avenue 2 BYRNE MEMORIAL JUSTICE No speakers ASSISTANCE GRANT Law enforcement and criminal rocessin $173,406 I-1 PUBLIC COMMENT CITYVIEW right-of-way alignment for 6 Speakers Constitution Drive Extended J/K-1-a Ordinances to RENEW existing franchises: GIOVANNI'S RESTAURANT at 2006 ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Atlantic Avenue CONSENT b KEIFER'S BAR & GRILL at 2218 ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Atlantic Avenue CONSENT PAGE CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V O I M B L DATE: April 5, 2005 C E S L D C M R C A W 1 J L A N R H N I E D O A D D E M U L W Z Y N N D O E I E S O AGENDA E E E A O R V D V O O ITEM # SUBJECT MOTION VOTE L R S N X F E T A N D c ROCKFISH BOARDWALK BAR/SEA ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y GRILL at 1601 Atlantic Avenue CONSENT 2-a Ordinances re the City Code: AMEND§ 34.9/ADD§ 34-35 re closure of ADOPTED 11-0 Y Y Y Y Y Y Y Y Y Y Y swimming ool gates b AMEND/REORDAIN § 21-321.2 re ADOPTED, BY 10-1 Y Y Y N Y Y Y Y Y Y Y maximum speed limits in designated CONSENT neighborhoods: Acredale Baylake Pines/Baylake Beach Bayville Park Bellamy Manor Birdneck Point Brighton on the Bay I I Church Point Country Haven Croatan Fairfield Hermitage Road L & J Garden Lake James Lake Shores Larkspur Little Neck Milburn Manor Stratford Chase Thoroughgood 3 Ordinance to AUTHORIZE agreement ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y between CityNHDA re SPARC home CONSENT ownership program 4-a Ordinances to AUTHORIZE temporary encroachments into portions of City owned row: Lake Joyce by P. DARRELL MCKOWN, ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y JR. at 4217 Battery Road. CONSENT DISTRICT 4 — BAYSIDE b WILLIAM S., SR./BONNIE M. OSBORN ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y at 4025 W. Colonial Parkway. CONSENT DISTRICT 3—ROSE HALL 5 Resolution REQUESTING Commonwealth ADOPTED, AS 11-0 Y Y Y Y Y Y Y Y Y Y Y Transportation Commissioner REFUSE REVISED, applications of Adams Outdoor REQUESTING Advertising re permits to cut VDOT DENY trees/vegetation in row of Virginia Beach PERMITS Blvd between Rosemont Road/Lynn Shores Drive/schedule a Public Hearing for citizens L-1 WEDGEWOOD ASSOCIATES COZ from APPROVED, AS 9-2 Y N Y N Y Y Y Y Y Y Y A-12 to Conditional A-24 with a PD-H2 on PROFFERED Bonney Road/Dolton Drive/Alicia Drive DISTRICT 2 — KEMPSVILLE M APPOINTMENTS: RESCHEDULED B Y C O N S E N S U S Community Policy and Management Team — CSA At Risk Community Services Board Francis Land House Board of Governors Health Services Advisory Board Human Rights Commission Investment Partnership Advisory Committee Minority Business Council Open Space Subcommittee Parks and Recreation Commission Performing Arts Theatre Advisory Committee Personnel Board The Planning Council Towing Advisory Board PAGE 3 CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V O I M B L DATE: April 5, 2005 C I E S L D C M R C A W I J L A N R H N I E D O A D D E M U L W Z Y N N D O E I E S O AGENDA E E E A O R V D V O O ITEM # SUBJECT MOTION VOTE L R S N X F E T A N D N UNFINISHED BUSINESS O NEW BUSINESS ADD ON RECESS TO CLOSED SESSION re APPROVED 11-0 Y Y Y Y Y Y Y Y Y Y Y a. Personnel Matters b. Publicly Held Property after which to certify and adjourn from the Conference Room @ 8:40 P.M. ADD ON CERTIFICATION OF CLOSED APPROVED 10-0 Y Y Y Y Y Y Y A Y Y Y SESSION P, 10:05 P.M. P ADJOURNMENT: 10:06 P.M. PUBLIC COMMENTS Non -Agenda Items 2 Speakers 2005-2006 RESOURCE MANAGEMENT PLAN SCHEDULE EVENT TOPIC LOCATION DATE Workshop Debt and Financial Ca aciQuality Physical Environment Council Con erence Room Aril 12, 2005 Workshop Safe Community and Quality Organization Council Conference Room April 14, 2005 Workshop Quality Education & Lifelong Learning; Constitutional Officers Council Conference Room Aril 19, 2005 Public Hearing Bayside High School April 21, 2005 6: 00 PM Workshop Economic Vitality, Cultural and Recreational Opportunities; Family and Youth Opportunities Council Conference Room April 26, 2005 Public Hearing Council Chamber April 26, 2005 6: 00 P.M. Reconciliation Workshop Council Conference Room May 3, 2005 Adoption ofFY2005- 2006 Resource • Mana ement Plan City Council Vote on Resource Management Plan Council Chamber May 10, 2005 6:00 P.M.