No preview available
HomeMy WebLinkAboutMARCH 28, 2006 AGENDACITY OF VIRGINIA BEACH ` `COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At -Large DICE MAYOR LOUIS R. JONES, Bayside - District a HARRY E. DIEZEL Kempsville - District 2 ROBERT M. DYER, Centerville - District I 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 .LAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL AGENDA CITYMANAGER - JAMES K. SPORE CITY ATTORNEY - LESLIE L. LILLEY CITY CLERK - RUTHHODGES SMITH, WC 28 MARCH 2O06 I. CITY COUNCIL COMMENTS II. REVIEW OF AGENDA ITEMS III. INFORMAL SESSION A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION IV. FORMAL SESSION CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE: (757) 427-4303 FAX (757) 426-5669 E-MAIL: Crycncl@vbgov.com - Conference Room - 3:30 PAI 11 - Conference Room - 4:00 PM 11 - Council Chamber - 6:00 PM II A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. INVOCATION: Captain Dale Parker Chaplain, Naval Air Station Oceana C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS G. AGENDA FOR FORMAL SESSION H. CONSENT AGENDA I. PRESENTATION FY 2006-2007 RESOURCE MANAGEMENT PLAN Catheryn Whitesell, Director, Management Services RESOLUTION/ORDINANCES March 14, 2006 Resolution to AUTHORIZE and DIRECT the City Manager to execute a Special Order by Consent re Lake Trant dredging project. 2. Ordinance to AUTHORIZE temporary encroachments by Frank A. and Joanne L. Jacobs into Treasure Creek to construct, reconstruct and maintain a pier, floating piers, bulkhead, et cetera, at 2237 Leeward Shore Drive. (DISTRICT 5 — LYNNHAVEN) Ordinance to ACCEPT and APPROPRIATE a grant of $24,000 from the Bill and Melinda Gates Foundation to the Library Department's FY 2005-2006 Operating Budget re computer equipment upgrade in selected libraries. 4. Ordinance to TRANSFER $179,200 in the FY 2005-2006 Operating Budget from Human Services Integration — Information Technology to Revenue Assessment and Collections System re upgrade to the City Treasurer's cashiering system. K. PLANNING 1. Ordinances re Base Realignment and Closure Commission (BRAC) compliance: a. ESTABLISH the Oceana Land Use Conformity Program and IMPLEMENT the Oceana Land Use Conformity Committee b. AMEND Chapter 35.2 of the City Code to ADD Article 2, §§ 35.2-10 and 35.2-11 to ESTABLISH the APZ-1 Technology/Business Opportunity Zone C. ADD City Code § 35-72.1 and AMEND City Code § 35-72 to ESTABLISH the APZ-1 Property Tax Exemption District d. AMEND the Economic Development Investment Program (EDIP) policy and procedure re the Oceana Land Use Conformity program e. AMEND and REORDAIN Article 18 of the City Zoning Ordinance (CZO), § § 1803 and 1807 (Appendix A), and ADD §§ 1808 —1810 re allowing certain uses that are conditional in the underlying zoning district as principal uses (APZ-1 Incentives Ordinance) f. AMEND Chapter 1 of the Comprehensive Plan re incorporating voluntary conversion of certain nonconforming uses to conforming uses in Accident Potential Zone 1 (APZ-1) g. AMEND and REORDAIN the Airport Noise Attenuation and Safety Ordinance (Appendix I) and ADD § 14 re avigation easements within Air Installation Compatible Use Zones (AICUZ) h. ADOPT the plan for compliance with the BRAC requirements, REQUEST General Assembly Delegation sponsorship and support for necessary legislation and AUTHORIZE acquisition in APZ-1 and the Interfacility Traffic Area APPROPRIATE $15-Million to fund the City's APZ-1 program and comply with the BRAC requirements re acquisition and the Oceana Land Use Conformity Plan re shared State revenue of $7.5-Million 2. Application of ALCAR, L.L.C. for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural Districts to Conditional R-7.5 Residential District on Nimmo Parkway right-of-way (unimproved) and Rockingchair Lane. (DISTRICT 7 — PRINCESS ANNE). INDEFINITELY DEFERRED RECOMMENDATION: STAFF RECOMMENDATION: March 23, 2004 APPROVAL DEFER INDEFINITELY 3. Application of Munden Land, L.L.C. for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural Districts to Conditional PD-H2 Planned Unit Development District (R-10 Residential and P-1 Preservation) on the east side of Princess Anne Road, south of Sandbridge Road to develop single-family homes. (DISTRICT 7 — PRINCESS ANNE) INDEFINITELY DEFERRED September 13, 2005 RECOMMENDATION: APPROVAL 4. Application of KEVIN MILLER for a Conditional Use Permit re a recreational facility of an outdoor nature (skateboard ramp) at 120 Ojibwa Lane (DISTRICT 2 — KEMPSVILLE) RECOMMENDATION: DENIAL 5. N Application of LEO LUONG for a Conditional Use Permit for an automobile repair garage (body work) at 3440 Chandler Creek Road, Unit 102 (DISTRICT 3 — ROSE HALL) RECOMMENDATION: APPROVAL Application of VIRGINIA BEACH CITY CENTER, L.L.C. at 4752 Virginia Beach Boulevard (DISTRICT 4 — BAYSIDE) a. Change of Zoning District Classification from B-3 Central Business District to Conditional B-4C Central Business Mixed Use District to construct a mid -rise mixed use building containing retail, offices and residential condominiums. b. Conditional Use Permit for multi -family dwellings RECOMMENDATION: APPROVAL 7. Application of BELINDA KELTON for a Conditional Use Permit for a residential kennel at 1665 Nanneys Creek Road. (DISTRICT 7 — PRINCESS ANNE) RECOMMENDATION: DENIAL APPLICANT REQUESTS: WITHDRAWAL L. APPOINTMENTS BEACHES and WATERWAYS COMMISSION HUMAN RIGHTS COMMISSION INVESTMENT PARTNERSHIP ADVISORY COMMITTEE — PPEA MEAL TAX TASK FORCE OCEANA LAND USE CONFORMITY COMMITTEE SOCIAL SERVICES BOARD SOUTHEASTERN PUBLIC SERVICE AUTHORITY — SPSA M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT MAY 29 2006 CITY COUNCIL SESSIONS CANCELLED RE COUNCILMANIC ELECTION 2006 BUDGET SCHEDULE April 11(Workshop) Council Conference Room April 18 (Workshop) Council Conference Room April 20 (Workshop) Convention Center at 3:00 p.m. April 20 (Public Hearing) Bayside High School at 6:30 p.m. April 25 (Workshop) Council Conference Room April 25.(Public Hearing) Council Chamber at 6:00 p.m. May 3 (Reconciliation Workshop) Council Conference Room at 3:00 p.m. May 9 (City Council Action) Council Chamber If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 Hearing impaired, call: Virginia Relay Center at 1-800-828-1120 Agenda 03/14/2006mb www.vbgov.com 2006 BUDGET SCHEDULE April 11 (Workshop) Council Conference Room April 18 (Workshop) Council Conference Room April 20 (Workshop) Convention Center at 3:00 p.m. April 20 (Public Hearing) Bayside High School at 6:30 p.m. April 25 (Workshop) Council Conference Room April 25 (Public Hearing) Council Chamber at 6:00 p.m. May 3 (Reconciliation Workshop) Council Conference Room at 3:00 p.m. May 9 (City Council Action) Council Chamber If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 3854303 Hearing impaired, call: Virginia Relay Center at 1-800-828-1120 Agenda 03/14/2006mb www.vbgov.com CITY COUNCIL COMMENTS - Conference Room - 3:30 PAI H. REVIEW OF AGENDA ITEMS III. INFORMAL SESSION A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION - Conference Room - 4:00 PM IV. FORMAL SESSION - Council Chamber - 6:00 PM A. B. C. D. E. F. N CALL TO ORDER — Mayor Meyera E. Oberndorf INVOCATION: Captain Dale Parker Chaplain, Naval Air Station Oceana PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA ELECTRONIC ROLL CALL OF CITY COUNCIL CERTIFICATION OF CLOSED SESSION MINUTES INFORMAL and FORMAL SESSIONS AGENDA FOR FORMAL SESSION March 14, 2006 r Qy �6 0 Op OUR e . CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded here and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia Law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia Law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. H. CONSENT AGENDA I. PRESENTATION FY 2006-2007 RESOURCE MANAGEMENT PLAN Catheryn Whitesell, Director, Management Services J. RESOLUTION/ORDINANCES 1. Resolution to AUTHORIZE and DIRECT the City Manager to execute a Special Order by Consent re Lake Trant dredging project. 2. Ordinance to AUTHORIZE temporary encroachments by Frank A. and Joanne L. Jacobs into Treasure Creek to construct, reconstruct and maintain a pier, floating piers, bulkhead, et cetera, at 2237 Leeward Shore Drive. (DISTRICT 5 — LYNNHAVEN) 3. Ordinance to ACCEPT and APPROPRIATE a grant of $24,000 from the Bill and Melinda Gates Foundation to the Library Department's FY 2005-2006 Operating Budget re computer equipment upgrade in selected libraries. 4. Ordinance to TRANSFER $179,200 in the FY 2005-2006 Operating Budget from Human Services Integration — Information Technology to Revenue Assessment and Collections System re upgrade to the City Treasurer's cashiering system. `J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Authorizing and Directing the City Manager to Execute a Special Order by Consent Concerning the Lake Trant Dredging Project MEETING DATE: March 28, 2006 ■ Background: The City of Virginia Beach applied for and was granted a State Water Control Board Permit to dredge Lake Trant in order to improve the ability of the lake to accept stormwater runoff. The operation was undertaken for the City by a contractor and subcontractor. The operation was found to be in violation of several conditions of the dredging permit, and although the violations were committed by the subcontractor, the State Water Control Board holds the permitee responsible for violations. The State Water Control Board, through its enforcement agency, the Department of Environmental Quality, desires to enter into a Special Consent Order to resolve the violations. The conditions of the Consent Order include the payment of a $30,000.00 civil charge, which was reduced from $40,000.00. ■ Considerations: The execution of the Special Consent Order by March 29, 2006 will allow the City a reduction of the amount of the civil charge, reducing it to $30,000.00. The contractor and subcontractor will be responsible for reimbursement to the City for some portion of the civil charge. ■ Public Information: Publication is in the agenda. The State Water Control Board will require public notice and comment prior to its adoption of the Special Consent Order. ■ Alternatives: The City can refuse to enter into a Special Consent Order and the State Water Control Board will proceed with legal actions. If the City fails to enter into the Special Consent Order by March 29, 2006, the amount of the civil charge would increase to $40,000.00. ■ Recommendations: Authorize the City Manager to sign the Special Consent Order. ■ Attachments: Resolution and Summary of Terms Recommended Action: Approval of the Resolution Submitting Department/Agency: Public Wo L City Manage :. 5 �_7S� 4 1 A RESOLUTION AUTHORIZING AND 2 DIRECTING THE CITY MANAGER TO 3 EXECUTE A SPECIAL ORDER BY CONSENT 4 CONCERNING THE LAKE TRANT DREDGING 5 PROJECT 6 7 WHEREAS, within the boundaries of the City of Virginia 8 Beach, there is a 33 acre lake known as Lake Trant ("the Lake"); 9 and 10 WHEREAS, the City applied for and was granted a 11 Virginia Water Protection Permit ("Permit") to maintenance 12 dredge the Lake to improve its ability to accept stormwater 13 runoff; and 14 WHEREAS, the Department of Environmental Quality, on 15 November 17, 2005 and January 27, 2006 issued Notices of 16 Violations of the conditions and terms of the Permit to the City 17 of_Virginia Beach; and 18 WHEREAS, although the work was performed by a 19 subcontractor, which committed the violations, the State Water 20 Control Board holds the City, as the permitee, responsible for 21 violations of the terms of the Permit, including the placement 22 of unpermitted fill in the Lake, unpermitted depositing of fill 23 from barges and stockpiles into the Lake, and failures to report 24 and notify the Department of Environmental Quality of certain 25 information; and 26 WHEREAS, the City of Virginia Beach and the State 27 Water Control Board, through its representatives at the 28 Department of Environmental Quality, desire to enter into a 29 Special Order by Consent to resolve these violations; 30 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE 31 CITY OF VIRGINIA BEACH, VIRGINIA: 32 That the Council authorizes and directs the City 33 Manager or his designee to execute the Special Consent Order on 34 behalf of the City of Virginia Beach. 35 Adopted by the Council of the City of Virginia Beach, 36 Virginia, on the day of , 2006. CA-9968 OID/ordres/consent order.doc R-2 March 22, 2006 APPROVED AS TO CONTENT: '4:00ow E ( Pub orks APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office 2 Special Order by Consent between City of Virginia Beach ("City") and State Water Control Board ("SWCB") SUMMARY OF TERMS Purpose: To resolve the violations by the City of the City's Virginia Water Permit No. 04-1239, involving the dredging of Lake Trant. Premises: Lake Trant is a 33 acre lake located in the City of Virginia Beach. Term: The City will have 30 days from the date of the adoption of the Special Consent Order by the SWCB to fulfill the obligations listed below. Responsibilities of the City: • Pay a civil charge of $30,000. • Comply with the conditions of the VWP Permit for the continued dredging of Lake Trant. • Provide DEQ with a plan for restoration of the filled portions of Lake Trant and implement the plan. XAOID\LAND USE DIVISION - Team MOrdinances & Resolutions Prepared for Council\Consent ST.doc oSr CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Request for Encroachments into the City property known as Treasure Creek from the adjacent property owners, Frank A. Jacobs and Joanne L. Jacobs. MEETING DATE: March 28, 2006 ■ Background: Mr. and Mrs. Jacobs have requested permission to construct, reconstruct and maintain a pier, floating piers, bulkhead, return, riprap and existing pilings at the rear of their property located at 2237 Leeward Shore Drive. Given the nature of these encroachments, a termination notice of 180 days for removal was allowed in the Agreement. ■ Considerations: City Staff has reviewed the requested encroachments and has recommended approval of same, subject to certain conditions outlined in the Agreement. There are similar encroachments in Treasure Creek (as well as other canals of Bay Island), which is where Mr. and Mrs. Jacobs have requested to encroach. ■ Public Information: Advertisement of City Council Agenda ■ Alternatives: Approve the encroachments as presented, deny the encroachments, or add conditions as desired by Council. ■ Recommendations: Approve the request subject to the terms and conditions of the Agreement. ■ Attachments: Ordinance, Agreement, Plat, Pictures and Vicinity Map. Recommended Action: Approval of the ordinance. Submitting Department/Agency: Public Works/Real Estate q'Y) ,_0( City Manager:�4==\CAI V X:\01MEALESTATEEncroachm 833 Jacobs Agenda Item.doc 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS INTO 5 A PORTION OF CITY PROPERTY 6 KNOWN AS TREASURE CREEK BY 7 FRANK A. JACOBS AND JOANNE L. 8 JACOBS, THEIRS HEIRS, ASSIGNS 9 AND SUCCESSORS IN TITLE 10 11 WHEREAS, Frank A. Jacobs and Joanne L. Jacobs desire to 12 construct, reconstruct and maintain a pier, floating piers, 13 bulkhead, return, riprap and existing pilings within City 14 property known as Treasure Creek and located at the rear of 2237 15 Leeward Shore Drive. 16 WHEREAS, City Council is authorized pursuant to §§ 15.2- 17 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to 18 authorize temporary encroachments upon the City's property 19 subject to such terms and conditions as Council may prescribe. 20 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 21 VIRGINIA BEACH, VIRGINIA: 22 That pursuant to the authority and to the extent thereof 2.3 contained in §§ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, 24 as amended, Frank A. Jacobs and Joanne L. Jacobs, their heirs, 25 assigns and successors in title are authorized to construct, 26 reconstruct and maintain temporary encroachments for a pier, 27 floating piers, bulkhead, return, riprap and existing pilings in 28 the City's property as shown on the map marked Exhibit "A" 29 attached hereto and entitled: "ENCROACHMENT PLAT 2237 LEEWARD 30 SHORE DRIVE PROPOSED WATERFRONT IMPROVEMENTS FOR FRANK JACOBS 31 VIRGINIA BEACH, VIRGINIA," a copy of which is on file in the 32 Department of Public Works and to which reference is made for a 33 more particular description; and 34 BE IT FURTHER ORDAINED, that the temporary encroachments 35 are expressly subject to those terms, conditions and criteria 36 contained in the Agreement between the City of Virginia Beach 37 and Frank A. Jacobs and Joanne L. Jacobs (the "Agreement"), 38 which is attached hereto and incorporated by reference; and 39 BE IT FURTHER ORDAINED, that the City Manager or his 40 authorized designee is hereby authorized to execute the 41 Agreement; and 42 BE IT FURTHER ORDAINED, that this Ordinance shall not be in 43 effect until such time as Frank A. Jacobs and Joanne L. Jacobs 44 and the City Manager or his authorized designee execute the 45 Agreement. 46 Adopted by the Council of the City of Virginia Beach, 47 Virginia, on the day of , 2006. APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM V"Y) - &� q, 10kgow - S G ATURE CITY ATTORNEY PA) fW Matt DEPARTMENT CA-9833 X:\OID\REAL ESTATE\Encroachments\PW Ordinances\CA9833 Jacobs.doc R-1 February 22, 2006 X:IOIDIREAL ESTATEIEncroachmentslPW OrdinanceslCA9833 Jacobs.doc PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(c) (4) THIS AGREEMENT, made this 23rd day of December, 2005, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and FRANK A. JACOBS and JOANNE L. JACOBS, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as Lot "210", Section Two, Bay Island Subdivision and being further known, designated and described as 2237 Leeward Shore Drive, Virginia Beach, Virginia 23451 (GPIN 2409-19-5768); WHEREAS, it is proposed by the Grantee to construct, reconstruct, and maintain a pier, floating piers, bulkhead, return, riprap and existing pilings, collectively "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in constructing, reconstructing, and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City property known as Treasure Creek, the `Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit a Temporary Encroachment within the Encroachment Area. GPIN: No GPIN Assigned (Treasure Creek) 2409-19-5768-0000 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use the Encroachment Area for the purpose of constructing, reconstructing, and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed, reconstructed, and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat entitled: "ENCROACHMENT PLAT 2237 LEEWARD SHORE DRIVE PROPOSED WATERFRONT IMPROVEMENTS FOR FRANK JACOBS, VIRGINIA BEACH, VIRGINIA," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within one hundred eighty (180) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses 2 and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Planning Department prior to commencing any construction within the Encroachment Area. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the Grantee must submit for review and approval, a survey of the Encroachment Area, certified by a registered professional 3 engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Frank A. Jacobs and Joanne L. Jacobs, the said Grantee, have caused this Agreement to be executed by their signature. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. CITY OF VIRGINIA BEACH M- City Manager/Authorized Designee of the City Manager M (SEAL) ATTEST: City Clerk Frank A. Jacobs l"I Joanne L. Jacobs STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 200t, by DESIGNEE OF THE CITY MANAGER. My Commission Expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: BEACH. CITY MANAGER/AUTHORIZED Notary Public The foregoing instrument was acknowledged before me this day of , 2008, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA My Commission Expires: Notary Public 5 STATE OF VIRGIN CITY/ OF ,1(U, u.a..r64cj,�Wit: ,�Q The foregoing instrument was acknowledged before me this �3 r—of 2005, by Frank A. Jacobs and Joanne L. Jacobs. 3z� Notary Public My Commission Expires: APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM 0, S NATURE ho 4r Fsf- DEPARTMENT X:\Pmjects\Encroachments\Applicants\Jacobs, Frank # 1388 Leeward Dr- RABWgreement Encroachment.Frm.doc 0 po PLTH /pF (A o TOM B. L z EXHIBIT "A" r U N y -0 14 S/ONAL �G MHW WIDTH _ -71' MLW = =Q.90 - PROPOSED TOP OF RAP _ Mhw 1.60' \ Ste• 2Q 5'X 5' FLOATING PIER TQP F j, ,DPROP , 9 .. E.IP,F�,L?- IX. PILE �j2 12"-17LOATIN IER r --- -' = - t�,0 1 b• RN' PROPOSED BULKHEAD 1 AREA OF ENCROACHMENTS EXISTING = 965 S.F. PROPOSED = 2961 S.F. , 30.6% CHANGE - /pF DATE: 12/13/04 ENCROACHMENT PLAT DESIGNED: TeL 2237 LEEWARD SHORE DRIVE DRAWN: GMT PROPOSED WATERFRONT " IMPROVEMENTS SCALE: 1 " 30' FOR �t�c°°n'►a. t� PROD. : 2004-031 FRANK JACOBS 309Ly=ha,.pa.,wy VIRGINIA BEACH, VIRGINIA V'� "aB`i`b•vn23452 PH: psn ss; asos Fnx ps7) 463.35Z y . ` •T - _ � �" ♦,�,rQ _ .......+ ., /., �` � 7 ` ) , is , � I Y � r 2 s• t. i !1 � ! � � j�gy�jt � IF r I,., t� y rPot �l�'••' ` f.. 1 %i.' ,� ✓• 7. . �' � k'p 2'':•, fir"" 7 / (R fit; � i. Al • ` �. ` � �tp,. s'� ( • :� c, err r'ii �_ . 'tt��� a�^� - - /. '�• fir ' —i '.t I "� 1. Fy lra�iii�J.'' � t r•. ��• a 1 mil- �.�•' p'� S P ' Via': �' : ` '•i�'^Y'"� - 41f � , u SEQUENCE OF CONSTRUCTION 1 2 3 4 DEMOLITION OF CONSTRUCTION CONSTRUCTION CONSTRUCTION VICINITY MAP SCALE 1 " = 2000' A PORTION OF EXISTING BULKHEAD. OF NEW BULKHEAD. OF NEW RIPRAP. OF NEW PIER. PURPOSE : NEW PIER(S), BULKHEAD AND RIPRAP REVETMENT DATUM : NGVD29 (72) = 0.0 ADJACENT PROPERTY OWNERS m MAUME m NOWELL ® COOPER PERMIT APPLICATION VICINITY MAP Langley and McDonald, Inc Engineers Planners Surveyors 309 LI-NNHAVEN PAR WAY VIRGINIA BEACH, VIRGINIA 23452 757- 634306 (FAl� 757-463.3563 IN TREASURE CREEK AT : 2237 LEEWARD SHORE DRIVE CITY/COUNTY : VIRGINIA BEACH APPLICATION BY FRANK JACOBS DATE: DECEMBER 13, 2004 SCALE : 1" = AS NOTED SHT. 1 OF 4 PROD. # 2004-031 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate $24,000 from the Bill and Melinda Gates Foundation to the FY 2005-06 Operating Budget of the Library Department to Upgrade Computer Equipment in Selected Libraries MEETING DATE: March 28, 2006 ■ Background: The Bill and Melinda Gates Foundation has awarded the Virginia Beach Public Library $24,000 to participate in the Public Access Computer Hardware Upgrade Grant Program. The project is a continuation of the Gates Library Initiative Accelerated Grant Program for Large Libraries, which the Library Department received in February 2000. The Gates Foundation is committed to expanding opportunities for public access computing and the development of Internet and Web searching skills. Its primary purpose is to close the "digital divide" and assure that everyone in America has adequate access to a personal computer and to the Internet and is skilled in using these tools. ■ Considerations: The Library Department's computer labs are extremely popular. This opportunity to provide state of the art equipment will continue to enable our customers to develop computer literacy, access word processing and other important software programs and access resources available on the Internet. This grant is a follow-up to a previous Gates Foundation Grant that enhanced the Central Library computer lab and established a computer lab at the Oceanfront Area Library. This $24,000 grant is for the period from March 31, 2006 to December 31, 2008. The purpose of the grant is to provide sustainable public access computer hardware and software upgrades. The current grant does not require any matching funds from the City and will be used to upgrade computer memory and monitors in existing computer labs. ■ Public Information: Public information will be handled through the normal Council agenda process. ■ Recommendations: It is recommended that the grant of $24,000 be accepted and appropriated. ■ Attachments: Ordinance and Grant Award Letter Recommended Action: Approval Submitting Department/Agency: Department of Public Libraries City Manager: 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE 2 $24,000 FROM THE BILL AND MELINDA GATES 3 FOUNDATION TO THE FY 2005-06 OPERATING 4 BUDGET OF THE LIBRARY DEPARTMENT TO 5 UPGRADE COMPUTER EQUIPMENT IN SELECTED 6 LIBRARIES 7 8 9 WHEREAS, the Bill and Melinda Gates Foundation has awarded 10 a $24,000 grant to the Library Department to upgrade computer 11 equipment in selected libraries. 12 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 13 OF VIRGINIA BEACH, VIRGINIA: 14 1. That $24,000 is hereby accepted from the Bill and 15 Melinda Gates Foundation and appropriated to the FY 2005-06 16 Operating Budget of the Library Department to upgrade computers 17 in selected libraries. 18 2. That estimated revenue from donations is hereby 19 increased by $24,000. 20 Adopted by the Council of the City of Virginia Beach, 21 Virginia, on the day of APPROVED AS TO CONTENT: Management Services 2006. APPROVED AS TO LEGAL SUFFICIENCY: , " �. 4 Ai, City Attorney's Office CA9941 X:\PA\GG\OrdRes\Gates Foundation Grant ORD R-2 March 16, 2006 BILL &M L NDA oundat- February 22, 2006 MS. Marev si-xis t�}FrC'.CtUi . "ertr�triia BP.4Cl'.t ?I.Fi3aiC L;rorary 24116 Courthouse Dr ve M nicipal Ce nMr, Bur€ding'19 Virginia,Bea,::, VA 23456 Re: Grant Number 4.1-599 : lie M. 9. Sims, The Global L :ii raries :rogrem of the Bill <& Melinda Gatos Foundation (the 'Pot ndation" is pleased to award .>y. Vi gi is Beach Public Library a lion renevrable project support grant in Cie mnount of S74 000.00 €'nr tile t)eriodl frorr Match31, 2006.to De <ember 31, 2008. Tb, ut ose of the grant is to provideSustainable pulblic actcss computer aard�►�are and softtiVarc gpgra es previous grarnte. in the ni<inncr:clescri +ed in the application.- ou provided us dated.Uece ber I ;: 2t 05 (the " App1:i:,ation"}. Tax -Exempt Status. Virg'nia Beach Public. LiLwary confirms that it is a strx or local gOverrimut arc:, or a political .subdivisior tht=-cf, ruder. sections 170(b�,'I)( j(v3 at;d`I? i{c;)� f ti e rater Fat e;�eF}ue Co* e of1086 (tire "Cbdie"). Nve askthat ou advise us hairnediately if there is any change, in your T re:a ... organ�La.:o.:f � „�cerF:pt. status dunng lieterm of this grant. Use of Grim Funds. Virginia Beach Public Libra y.agrees to ase the grarFt:i'urAs, anti:� .ings i,the�al:, Solely for the I:-::rpcses, and in the manner, described in the Application. and sabject to the, terms and concidors or this pant agreetrent. Grantf=ds may not be expended, borrowed (inte-r-i ni , ludged or transferred for reaso s od:er than.ca°�r�ing out the:project. �srant fands iraay of be used for lobaring. yry. increase car de=ase to a budget Lne item of snore than IOTq-:�Fust be approvedby the +aundatioia. Any portion of th€ grant finds t nexpended or uncor -mitmd at the end of Ebe grant perio 1, or used kr purposes or In ally man-ner other than those described in the ApplicAtion,. must be retumed promptly to the Feiindat;on. Payment of Grant Funds.: Upon reecip£ of a. cotintersigned orgina of this grant agreement, &Ae Foundation w i:l isstfe a one -tin, e payment. via check, in the amount of $244,0100.00 Repor#in& We ask- that V i giria Beach Publi; Library provide is with a, w _tens report signedl €q an.. authoriz�vd offiosr of ycrr organization =;, accordance with the sche.&uZe below. Your reports should be sent o the atte dos of Christopher 7rwaisas, Associam Progra: of cer. using the at£ached Repo: s—r Re iremcnts C-ocamert, the narrati ire portion of yoair report shot: d pro ida a detailed desG iption of what was accomplished with the grant fords.' he financiai portior of your report should describe 311 txpertditures of the grant fiands and any irieorne earned: on those funds. V 206749- 5., A7 annra' d rsi4 g gnfru Re-nArt Tiine Re -Dort Period Re€ or•d N1 aintenar€ee'aiid Inspection. 'Virginia Beach Pablic.� .ibra: y agrees to maintain adequate records toenablfi expendi€um of the grant, funds to be easily confirmed. V irgiriia Beach Public l.,ibinry also.2s to make is ri�c�lcs arad;r�.cords avaiable for €rispecticn atr: asenable timWs 3liC:t it 1i° iSs t0 iQni,:fr iil3Cl ; c�ndsrLt µn eva.uativ fJf operanorts u der th grant, whirl rnav r-icWe a visit by our. laersoonel. to observe the :program.. a discussion of Vie program w7m Virginia Beach:: Public Library staff, and a review of financial and other records connected with this gram: Compliabee.. If, Y ve are not satisfied. with be,progress of, dhe:garawt for which Virginia Beach Puhl c r ibrary has received fundsor the content of any written rem, we reser e the right 3. our:disCreti .1 +o cancel the gra nL jxccoErtirue fur:d ng and request tha; Virginia Beach Public Library reti3rn anv unsvent are unc€.�mmittt:d.giant funds previously 'dist.- bated. by the Fovndadon udder the tors of this gra:�t, Public Reports. We will ircluce irforniatio on this grant in our Periodic public repLrrs and may also. refer ao this yrarat I ir, pre ss releases. lff Virgin a Beach Public Library would like to.r ake an. anr:ouramment about his avrard;.plea3e prov de the'Foundatibn with the opportunity, to corn meat in ad-vance or. the grcipose:d:media release b_v contacting Clirissy Russillo at (206)35 -g598 or chrissy:russillor g€nmb.cc:rrr. If:Ws ietter correctly describes your understanding of #hc: tenets of dais grant, please sigh :bob cop es.of t W s setter anc3 rerurn ore.to Sally I la�tin at.the Found3t.on. Plena keep the other y C or yourr�cords. Ifyou have questions, pews^ conract Sally at -06) 703-3I71 or sally.rnarsiriC�yat::sfoturcaati:^ On, behalf of the Foundation, i"d Him to extent;. evm good wish for the success of Your Vaolk, Bill & Melinda Castes Foundation. ` laruarti. 2?. 2006: :�rla-tl;a C=soe late Director, Globe:-' Libraries Prograw. � ircinia Beach., Pul?Itc Library agees to the terras or Ns Gi,--nt as set-6rDrth :n 'he grant agiz�e:nent. �- :57 bate Ms. Marcy S:.rCts. . Director 11 PubficAcEess Compater Hardware Upgrade Grant ggram. re . Narrative Grant -Nwnber.- Grantee: Grant Amount Date ('sr aut afd::. 1. Pk,w4c- describe how ;cur Iibrans attained the ehafiteble z,*urse df the this g ant ena'lbxed. the library to expaDd pvblic accccss computing se_-yf-C ii'nr&ry.� lzlwasc incl uric .detz L; of the achiev me its of chFffleLp a tiv U.Sbrary had duringTnplexne t:�tian of this grantarid, provide a x�Ter ad or the library community, implement similar programs the 2. Please, describe any additional fandRr �tal lis aid or eonti ue,,irase. fiTi3C'S. pkass describe details -of le-ve q patne ships fort sL:st• bit ftV of j d:bos US u i aes orPpal��aer,smat the library y o �rarns providedwitn the gram ti Ands to secwe add tioiW una"S or create access -compud g in the h-brary pr ?. Pleas e� c �Rtiauing challenges to sustaining the public access computing SBTTcc>t€1 e +.�i:ZL2TC13T<t''S i7eS 2Y#fii3 at�k. \ Q / a \�\ /k u .z o k $2 22 . kƒ � CL � z\ 3« ƒ? . \� ¢ ƒ� .. �O �ƒ 0z \ � /o ƒ $ 7� Z 0 , / .)-,: z 00OL cr fp .� � � s � Zt l YES CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Transferring $179,200 from the FY 2005-06 Operating Budget from Human Services Integration — Information Technology to Capital Project #3-200 Revenue Assessment and Collection System to Upgrade the City Treasurer's Cashiering System MEETING DATE: March 28, 2006 ■ Background: The City Treasurer's current cashiering system, Revenue Collector/Cashier for Windows, was implemented in 2001. Last year the vendor, Systems Innovators Inc. (SII), introduced an application upgrade, called iNovah, which made significant changes to the underlying technology. Technology changes in iNovah added new components to the supporting architecture. Additional hardware, system software, and database management system licensing are required to support the new technology. All application software costs and data conversion services are already covered under a current maintenance contract. The system's hardware, including the receipt printers used by the cashiers, is scheduled for replacement under warranty this year at no additional cost. However, additional analysis and development services for custom features, training, and new hardware and system software will cost $179,200. This cost estimate was developed by ComIT and the Treasurer's staff in consultation with SII and Microsoft. ■ Considerations: The new Revenue Assessment and Collections System (RAGS) will include an interface to the cashiering system. If this interface is developed with the current system, a second development effort will be required when the cashiering system is migrated to iNovah. In order to reduce the overall cost to the City, it is recommended that the cashiering system be upgraded to iNovah before the RACS is implemented next fiscal year. This will eliminate a cost of $57,000, which would be necessary to redevelop the interface at a later date. The projected cost for the upgrade is $179,200. The FY 2005-06 operating budget includes operating expenses associated with implementation of the Human Services Information System. Because the project is being delayed, that funding is not needed this year and is available for this upgrade. ■ Public Information: Public information will be handled through the normal Council agenda process. ■ Recommendations: Approve the attached ordinance. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: City Treasurer City Manage 1 AN ORDINANCE TRANFERRING $179,200 FROM THE FY 2 2005-06 OPERATING BUDGET FROM HUMAN SERVICES 3 INTEGRATION - INFORMATION TECHNOLOGY TO 4 CAPITAL PROJECT #3-200, REVENUE ASSESSMENT AND 5 COLLECTION SYSTEM, TO UPGRADE THE CITY 6 TREASURER'S CASHIERING SYSTEM 7 WHEREAS, the City Treasurer's cashiering system is in 8 need of upgrading prior to integrating with the City's new Revenue 9 Assessment and Collections System, and funding for this upgrade is 10 available in the FY 2005-06 Operating Budget. 11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 12 OF VIRGINIA BEACH, VIRGINIA: 13 That $179,200 is hereby transferred from the FY 2005-06 14 Operating Budget from Human Services Integration - Information 15 Technology to Capital Project #3-200, Revenue Assessment and 16 Collection System, to upgrade the City Treasurer's cashiering 17 system. 18 Adopted by the Council of the City of Virginia Beach, 19 Virginia on the day of 2006. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: � 4 Managmeiit Services City Attorney's O ice CA9961 H:\PA\GG\OrdRes\Cashiering System ORD R-2 March 16, 2006 K. PLANNING 1. Ordinances re Base Realignment and Closure Commission (BRAC) compliance: a. ESTABLISH the Oceana Land Use Conformity Program and IMPLEMENT the Oceana Land Use Conformity Committee b. AMEND Chapter 35.2 of the City Code to ADD Article 2, §§ 35.2-10 and 35.2-11 to ESTABLISH the APZ-1 Technology/Business Opportunity Zone ADD City Code § 35-72.1 and AMEND City Code § 35-72 to ESTABLISH the APZ-1 Property Tax Exemption District d. AMEND the Economic Development Investment Program (EDIP) policy and procedure re the Oceana Land Use Conformity program e. AMEND and REORDAIN Article 18 of the City Zoning Ordinance (CZO), §§ 1803 and 1807 (Appendix A), and ADD §§ 1808 — 18 10 re allowing certain uses that are conditional in the underlying zoning district as principal uses (APZ-1 Incentives Ordinance) f. AMEND Chapter 1 of the Comprehensive Plan re incorporating voluntary conversion of certain nonconforming uses to conforming uses in Accident Potential Zone 1 (APZ-1) g. AMEND and REORDAIN the Airport Noise Attenuation and Safety Ordinance (Appendix I) and ADD § 14 re avigation easements within Air Installation Compatible Use Zones (AICUZ) h. ADOPT the plan for compliance with the BRAC requirements, REQUEST General Assembly Delegation sponsorship and support for necessary legislation and AUTHORIZE acquisition in APZ-1 and the Interfacility Traffic Area APPROPRIATE $15-Million to fund the City's APZ-1 program and comply with the BRAC requirements re acquisition and the Oceana Land Use Conformity Plan re shared State revenue of $7.5-Million 2. Application of ALCAR, L.L.C. for a Change of Zoning_ District Classification from AG-1 and AG-2 Agricultural Districts to Conditional R-7.5 Residential District on Nimmc Parkway right-of-way (unimproved) and Rockingchair Lane. (DISTRICT 7 — PRINCESS ANNE). INDEFINITELY DEFERRED RECOMMENDATION: STAFF RECOMMENDATION: March 23, 2004 APPROVAL DEFER INDEFINITELY 3. Application of Munden Land, L.L.C. for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural Districts to Conditional PD-H2 Planned Unit Development District (R-10 Residential and P-1 Preservation) on the east side of Princess Anne Road, south of Sandbridge Road to develop single-family homes. (DISTRICT 7 — PRINCESS ANNE) INDEFINITELY DEFERRED September 13, 2005 RECOMMENDATION: APPROVAL 4. Application of ]KEVIN MILLER for a Conditional Use Permit re a recreational facility of an outdoor nature (skateboard ramp) at 120 Ojibwa Lane (DISTRICT 2 — KEMPSVILLE) RECOMMENDATION: DENIAL 5. Application of LEO LUONG for a Conditional Use Permit for an automobile repair garage (body work) at 3440 Chandler Creek Road, Unit 102 (DISTRICT 3 — ROSE HALL) RECOMMENDATION: APPROVAL 6. Application of VIRGINIA BEACH CITY CENTER, L.L.C. at 4752 Virginia Beach Boulevard (DISTRICT 4 — BAYSIDE) a. Change of Zoning District Classification from B-3 Central Business District to Conditional B-4C Central Business Mixed Use District to construct a mid -rise mixed use building containing retail, offices and residential condominiums. b. Conditional Use Permit for multi -family dwellings RECOMMENDATION: APPROVAL 7. Application of BELINDA ]KELTON for a Conditional Use Permit for a residential kennel at 1665 Nanneys Creek Road. (DISTRICT 7 — PRINCESS ANNE) RECOMMENDATION: APPROVAL APPLICANT REQUESTS: WITHDRAWAL NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the Chamber at City Hall, Municipal Center, 2401 Courthouse Drive, Tuesday, March 28, 2006, at 6:00 p.m. The follow- ing applications will be heard: DISTRICT 2 - KEMPSVILLE Kevin Miller: Conditional Use Permit for a recreational facility of an outdoor nature (skateboard ramp) at 120 Ojibwa Lane (GPIN 14772303250000). DISTRICT 3 - ROSE HALL Leo Luong: Conditional Use Permit for an automobile repair garage (body work) at 3440 Chandler Creek Road, Unit 102 (GPIN 14859470220000). DISTRICT 4 - BAYSIDE Virginia Beach City Center, L.L.C.: Chan re of Zoning Dis- trict Classification from B-3 Central Business to Condi- tional B-4C Central Business Mixed Use at 4752 Virginia Beach Boulevard (GPIN 14773504680000). The Compre- hensive Plan designates this area as being within Strategic Growth Area #4, suitable for mid to high-rise residential uses and a variety of non-residential uses including office, retail, public urban open space, entertainment, educational, institu- tional and other similar urban activities. The purpose of this rezoning is to construct a mid -rise mixed use building con- taining retail, offices and residential condominiums. Virginia Beach City Center, L.L.C.: Conditional Use Per- mit for multi -family dwellings at 4752 Virginia Beach Boule- vard (GPIN 14-173504680000). DISTRICT 7 - PRINCESS ANNE Belinda Kelton: Conditional Use Permit for a residential kennel at 1665 Nanneys Creek Road (GPIN 24103672690000). ALCAR, L.L.C.: 'Change of Zoning District Classifica tion from AG-1 and AG-2 Agricultural to Conditional R-7.5 Residential on the north side of the Nimmo Parkway Right -of -Way (unimproved), west of Rockingchair Lane (GPINS 2404337163;2404573796;2404564943). Munden Land, L.L.C.: Change of Zoning District Class fication from AG-1 and AG-2 Agricultural to Conditional PD-H2 Planned Unit Development (R-10 Residential and P-1 Preservation) on the east side of Princess Anne Road, south of Sandbridge Road (GPIN 2414200796). The Comprehen- sive Plan designates this site as being part of Princess Anne (Transition Area). The purpose of this zoning change is to develop single-family homes. CITY OF VIRGINIA BEACH Ordinance to Amend Chapter 1 of the Comprehensive Plan by Incorporating Principles Guiding the Voluntary Conversion of Nonconforming Uses in Accident Potential Zone 1 to Corr forming Uses. Ordinance to Amend and Reordain Article 18 of the City Zon- ing Ordinance (Appendix A) by Amending Sections 1803 and 1807 and Adding New Sections 1808, 1809 and 1810, Allowing Certain Uses as Principal Uses in Accident Potential Zone 1 Where Allowed as Conditional Uses in the Underlying Zoning 0-2 Office, B-2 Community Business and 1-1 Light Industrial Districts. All citizens are invited to attend. Ruth Hodges Smith, MMC City Clerk Copies of the proposed ordinances, resolutions and amend- ments are on file and may be examined in the Department of Planning online at http://Www.vbgoy.com/deO/planning/­boards/oc L. For information call 385-4621. - if you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427.4303. Hearing impaired, call: TDD only at 427-4305. (TDD - Telephonic Device for the Deaf). Beacon Mar. 12 & 19, 2006 14754684 I�U$E.i 4�T SF f ,l CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Ordinance Establishing the Oceana Land Use Conformity Program and Implementing Committee MEETING DATE: March 28, 2006 ■ Background: On December 20, 2005, the City Council adopted a series of ordinances as part of its Base Realignment and Closure Commission (BRAC) Compliance Plan. One component of that plan consisted of direction to the City Manager to bring forward, for the City Council's consideration, additional innovative means of rolling back nonconforming development in Accident Potential 1 (APZ-1). The proposed ordinance is a part of a package of ordinances to be considered by the City Council on March 28 that propose the use of innovative means of rolling back nonconforming development in APZ-1. ■ Considerations: The ordinance establishes the Oceana Land Use Conformity Program and the Oceana Land Use Conformity Committee, which is the Program's implementing committee. The ordinance sets forth the membership, duties, powers, funding and guiding principles of the Program and the Committee. The Program is intended to roll back encroachment in APZ-1 through the use of incentives and other voluntary means that will promote the orderliness and compatibility of existing and future land uses and protect the health, safety and quality of life of person who work or reside in the affected areas. ■ Public Information: No special form of advertising or other public notice is necessary; the Oceana Land Use Conformity Program., however, has been the subject of a public briefing to the City Council and one to the Citizen's BRAC Committee. ■ Recommendations: Adoption of the ordinance ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: City Manager City Manager: , N �y'1-- 1 AN ORDINANCE ESTABLISHING THE OCEANA 2 LAND USE CONFORMITY PROGRAM AND 3 IMPLEMENTING COMMITTEE 4 5 6 WHEREAS, on December 20, 2005, the City Council adopted 7 Ordinance No. 2914 K, entitled "An Ordinance Adopting the City's 8 Plan for Compliance with the Base Realignment and Closure (BRAG) 9 Commission's Decision Regarding Naval Air Station Oceana" as 10 well as other related ordinances, including the adoption of the 11 APZ-1 Ordinance and APZ-1 Use and Acquisition Plan, both of 12 which were later amended to include the Clear Zone within their 13 provisions; and 14 WHEREAS, those ordinances prohibit all future development 15 of incompatible uses in APZ-1 and the Clear Zone, and also 16 establish a program to purchase or condemn incompatible use 17 property under certain circumstances when requested by the 18 property owner; and 19 WHEREAS, by using local land use regulations, incentives, 20 and other means pursuant to the provisions of those ordinances, 21 the City will attain the goals of preventing further 22 encroachment and rolling back existing encroachment; and 23 WHEREAS, in adopting Ordinance No. 2914K and the APZ-1 Use 24 and Acquisition Plan, the City Council recognized that 25 additional means are available to roll back existing 26 encroachment within APZ-1 and directed the City Manager to bring 27 forward for consideration by the City Council additional 28 innovative methods of rolling back encroachment by replacing 29 nonconforming uses with conforming uses in APZ-1; and 30 WHEREAS, in addition to the provisions previously adopted, 31 the voluntary replacement of nonconforming uses with conforming 32 uses by both the private and public sectors and the relocation 33 of nonconforming uses to sites outside of APZ-1, encouraged and 34 facilitated by incentives and land use controls, enhances the 35 effectiveness, cost efficiency and public acceptance of 36 accomplishing the purposes of rolling back the encroachment of 37 nonconforming uses in APZ-1 and Clear Zones; and 38 WHEREAS, the City Council is committed to rolling back 39 encroachment in APZ-1 through the use of incentives and other 40 voluntary means that do not adversely affect established 41 residential neighborhoods; and 42 WHEREAS, the City Council finds that a program to enact 43 ordinances and programs and to make funds and incentives 44 available for these purposes, including appropriations, land use 45 incentives, tax incentives and economic development incentives 46 to further these purposes will enhance its efforts to roll back 47 incompatible development in APZ-1; and 48 WHEREAS, the City Council has a duty to its citizens to 49 ensure that the goals and effects of a rollback program are 50 accomplished utilizing sound planning and land use principles 2 51 that will promote the orderliness and compatibility of existing 52 and future land uses, not adversely affect established 53 residential neighborhoods, and protect the health, safety, 54 welfare and quality of life of persons who work or reside in the 55 affected areas; 56 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 57 CITY OF VIRGINIA BEACH, VIRGINIA: 58 That there is hereby established the Oceana Land Use 59 Conformity Program (the "Conformity Program"), the purposes of 60 which shall be to encourage, incentives and guide the voluntary 61 replacement of nonconforming uses by conforming uses in APZ-1 62 and Clear Zones and the relocation of nonconforming uses to 63 sites outside of such areas. The Conformity Program shall 64 include programs and incentives established by the City Council 65 and the Virginia Beach Development Authority for the purposes 66 set forth herein, and shall be managed and directed by a 67 committee entrusted by the City Council to make recommendations 68 to the City Council and the Virginia Beach Development Authority 69 regarding the implementation of actions necessary or appropriate 70 to carry out the purposes of the Conformity Program. The 71 committee shall have the duties, powers and membership set 72 forth in this Ordinance: 73 1. Name. The name of the committee shall be the Oceana 74 Land Use Conformity Committee (the "Committee") . 3 75 2. Guiding principles. 76 (a) The Committee shall, at all times, conduct its 77 business in accordance with the following guiding principles: 78 (1) The conversion of non -conforming uses to 79 conforming uses shall be accomplished utilizing 80 sound planning and land use principles that will 81 promote the orderliness and compatibility of 82 existing and future land uses and not adversely 83 affect established residential neighborhoods; 84 (2) Owners and occupants of pre-existing and 85 nonconforming residential and commercial uses 86 deserve a quality setting in which to live and 87 work; and 88 (3) Program actions shall not encourage development 89 that adversely impacts established residential 90 neighborhoods or the health, safety, welfare or 91 quality of life of persons who work or reside in 92 the affected areas. 93 3. Membership; staffing. 94 (a) The Committee shall be comprised of nine (9) voting 95 members and one (1) non -voting member. Voting members shall 96 consist of two (2) members of the City Council, two (2) members 97 of the Development Authority, the City Manager, the City 98 Attorney, the Chief Development Officer, one (1) owner of N 99 residential property in APZ-1 and one (1) owner of commercial 100 property in APZ-1. The non -voting member shall be a designee of 101 the United States Navy. 102 (b) Such staff support as is necessary for the conduct of 103 the Committee's business shall be provided by the Department of 104 Economic Development and, with respect to all legal matters, the 105 City Attorney's Office. 106 4. Purpose. The purpose of the Committee shall be to 107 make recommendations to the City Council and Development 108 Authority on matters relating to reducing the amount of pre- 109 existing nonconforming development, as determined pursuant to 110 Section 1804 of the City Zoning Ordinance, in APZ-1 and Clear 111 Zones. Such recommendations shall be consistent with the City 112 Zoning Ordinance, the APZ-1/Clear Zone Use and Acquisition Plan, 113 the Comprehensive Plan, the Final Hampton Roads Joint Land Use 114 Study (JLUS) and with good zoning practices that do not 115 adversely affect established residential neighborhoods. 116 5. Duties. The Committee shall have the duty to make 117 recommendations to the City Council, Planning Commission and 118 Development Authority concerning: 119 (a) agreements and transactions that further the purposes 120 for which the Committee was created; 121 (b) zoning and other land use ordinances, including the 122 advisability of adopting new or amended ordinances; 5 123 (c) discretionary zoning applications, such as rezonings 124 and conditional use permits; 125 (d) ordinances imposing fees or taxes, including the 126 advisability of adopting new or amended ordinances; and 127 (e) Staffing and resources necessary or appropriate to 128 assist the Committee in the exercise of its duties. 129 6. Powers. Subject to the availability of funding, the 130 Committee shall have, and may exercise, the following powers: 131 (a) To partner with federal, state and local government 132 and agencies, utilizing both traditional and innovative means, 133 to facilitate the voluntary relocation, elimination and 134 conversion of nonconforming uses by the public and private 135 sectors. In the exercise of this power, the Committee may 136 recommend the use of: 137 (1) incentive programs, including land use as well as 138 financial and tax incentives; 139 (2) voluntary land purchases; 140 (3) land sales; 141 (4) land assemblages; 142 (5) land development; 143 (6) land exchanges; 144 (7) land and improvement leases; 145 (8) land use approvals and restrictions; and 146 (9) financings, acquisitions and grants ; I 147 (b) On behalf of the City Council or the Development 148 Authority, to apply for, receive and accept such payments, 149 appropriations, grants, gifts, loans and advances and other 150 funds, properties and services as may be transferred or made 151 available to it by the federal, state or local agencies; 152 (c) To request the Development Authority to employ 153 consulting engineers, attorneys, accountants, real estate 154 brokers, financial experts and such other agents as may be 155 necessary to further the fulfillment of its purpose; 156 (d) To leverage the use of funds, thereby expanding and 157 multiplying the level of available funds, to encourage private 158 parties to facilitate the conversion of nonconforming uses into 159 conforming uses; 160 (e) To encourage the public sector, including federal, 161 state, regional and local authorities, to locate compatible uses 162 within APZ-1 and Clear Zones; 163 (f) To cooperate with, and act as an intermediary between, 164 the Development Authority and public or private entities or 165 individuals in identifying compatible uses that may be 166 encouraged through the granting of Economic Development 167 Incentive Program funds or other monies; 168 (g) To identify properties located in APZ-1 on which the 169 development or redevelopment of compatible uses, the conversion 170 of nonconforming uses to conforming uses, or the relocation of FA 171 nonconforming uses from APZ-1 or Clear Zones to sites outside of 172 such areas may be encouraged by granting real estate or other 173 tax exemptions or reductions. 174 (h) To identify conforming uses that may be induced to 175 locate or relocate in APZ-1 through the granting of business or 176 other tax or fee reductions; and 177 (i) Such other and related duties as the City Council or 178 the Development Authority may, with the consent of the City 179 Council, prescribe. 180 7. Funding. Funding for the activities of the Committee 181 shall be from the following sources, in such amounts as may be 182 determined by the City Council: 183 (a) Proceeds from the sale of real estate resulting from 184 the activities of the Committee; 185 (b) Funds appropriated by the City Council for areas 186 within APZ-1, as set forth in the Conformity and Acquisition 187 Fund, Capital Improvement Project #9-060, adopted on March 7, 188 2006, as well as other funds that may become available for use 189 in APZ-1 or Clear Zones, noting that funds appropriated for use 190 within APZ-1 should be used within APZ-1; 191 (c) Monies and property from such grants as may be 192 received by the City for the purposes set forth in this 193 Ordinance; 194 (d) Economic Development Incentive Program (EDIP) funds; 195 and 196 (e) Such other funding sources as the City Council may 197 designate. 198 8. Reports. The Committee shall report to the City 199 Council and Development Authority on its activities at least 200 annually. Such report shall include a summary of the activities 201 of the Committee, including properties acquired, properties 202 disposed of, a description of the incentives employed in each 203 transaction and the dollar value thereof and to report on its 204 progress in accomplishing the rollback of nonconforming uses to 205 conforming uses. 206 Adopted by the City Council of the City of Virginia Beach, 207 Virginia on the day of , 2006. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: C Manager City Attorney CA-9933 OID/land use/ordres/AICUZ/Oceana LUCC ordin.doc R-10 March 23, 2006 I CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Establish the Accident Potential Zone 1 (APZ-1) Technology/Business Opportunity Zone by Amending Chapter 35.2 of the City Code to Add Article 2, Consisting of New Sections 35.2-10 and 35.2-11 MEETING DATE: March 28, 2006 ■ Background: On December 20, 2005, City Council adopted a "Plan for Compliance with the BRAC Commission's Decision Regarding NAS Oceana." In accordance with this plan, the City Council intends to adopt other ordinances and programs (collectively, the "Oceana Land Use Conformity Program") to make funds and incentives available for the purposes of encouraging the voluntary replacement or relocation of nonconforming uses in Accident Potential Zone 1 (APZ-1), as determined pursuant to the Department of the Navy's OPNAV Instruction 11010.36B and Section 1804 of the City Zoning Ordinance, so as to facilitate efforts of both the private and public sectors that will roll back encroachment by nonconforming uses in APZ-1. The Oceana Land Use Conformity Program will encourage the development of uses and structures in APZ-1 that are compatible with both flight operations arising out of NAS Oceana and established residential neighborhoods. The Oceana Land Use Conformity Program will ensure that the development and redevelopment of conforming uses in APZ-1 occurs only where and when it can be accomplished in a manner that promotes the health, safety, welfare and quality of life in established residential neighborhoods within APZ-1 and in a manner consistent with sound planning and land use principles to promote the orderly and compatible co -existence of different uses in APZ-1. ■ Considerations: This ordinance will establish a technology/business opportunity zone for APZ-1. All qualifying businesses located in the APZ-1 technology/ business opportunity zone shall be entitled to a rebate of ninety percent (90%) of business, professional and occupational license taxes imposed by Chapter 18 of the Virginia Beach City Code. Qualifying businesses also will receive fee reimbursements for fees imposed under the building code, fees imposed under the zoning ordinance, fees imposed under subdivision regulations and the site plan ordinance, and water and sewer connection fees for new construction, alterations, and rehabilitation in APZ-1. A "qualifying business" for purposes of this section is defined as any business that conforms to the requirements of Section 1804, Table 2, of the City Zoning Ordinance that locates or relocates in the APZ-1 Technology/Business Opportunity Zone after the adoption of this ordinance. Qualifying businesses include businesses relocating to APZ- 1 and new businesses locating in APZ-1. ■ Public Information: Information will be disseminated through the regular Council agenda notification process. Additionally, notice of a public hearing was published in The Beacon, and Council held a public hearing on March 14, 2006. 0 Recommendations: Approval ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Department of Management Service C City Manager: IL. 1 AN ORDINANCE TO ESTABLISH THE ACCIDENT 2 POTENTIAL ZONE 1 (APZ-1) TECHNOLOGY/ 3 BUSINESS OPPORTUNITY ZONE BY AMENDING 4 CHAPTER 35.2 OF THE CITY CODE TO ADD 5 ARTICLE 2, CONSISTING OF NEW SECTIONS 6 35.2-10 and 35.2-11 7 8 Sections Added: §§ 35.2-10, -11 9 10 11 WHEREAS, the City Council desires to encourage the 12 development of uses and structures in Accident Potential Zone 1 13 (APZ-1) that are compatible with both flight operations arising 14 out of NAS Oceana and established residential neighborhoods; and 15 WHEREAS, the City Council intends to adopt other ordinances 16 and programs (collectively, the "Oceana Land Use Conformity 17 Program") to make funds and incentives available for the 18 purposes of encouraging the voluntary replacement or relocation 19 of nonconforming uses in APZ-1, as determined pursuant to 20 Section 1804 of the City Zoning Ordinance, so as to facilitate 21 efforts of both the private and public sectors that will roll 22 back encroachment by nonconforming uses in APZ-1; and 23 WHEREAS, the City Council also desires to ensure that the 24 development and redevelopment of conforming uses in APZ-1 occurs 25 only where and when it can be accomplished in a manner that does 26 not adversely affect established residential neighborhoods, is 27 consistent with sound planning and land use principles to 28 promote the orderly and compatible co -existence of different 29 uses in APZ-1 and promotes the health, safety, welfare and 30 quality of life of persons who work or reside in APZ-1; and 31 WHEREAS, it is the opinion of the City Council that the 32 adoption of an ordinance creating economic incentives to 33 encourage the development of conforming uses in appropriate 34 areas within APZ-1 is an effective means of accomplishing the 35 aforesaid objectives and an integral component of the Oceana 36 Land Use Conformity Program; 37 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 38 CITY OF VIRGINIA BEACH, VIRGINIA: 39 That Chapter 35.2 of the City Code is hereby amended and 40 reordained by the addition of Article 2, consisting of a new 41 Section 35.2-10, pertaining to the establishment of the APZ-1 42 Technology/Business Opportunity Zone, to read as follows: 43 CHAPTER 35.2. TECHNOLOGY ZONES 44 ARTICLE 1. IN GENERAL. 45 46 Sec. 35.2-1. Purpose and intent. 47 48 The city council of the City of Virginia Beach finds that 49 the development of its commercial and industrial tax base 50 requires incentives, and determines that an appropriate method 51 of offering incentives for the areas described below is to 52 create technology zones as guided and authorized by section 53 58.1-3850 of the Code of Virginia. The city council finds that 54 the establishment of technology zones will foster development of 55 commercial and industrial businesses engaged in technological 56 research, design and manufacturing to the benefit of the public 2 57 health, safety, welfare and convenience through the enhancement 58 of public revenues and the creation of employment opportunities. 59 Sec. 35.2-2. Administration. 60 This article shall be administered and enforced by the city 61 manager or his designee. The city manager, together with the 62 department of economic development will review the criteria and 63 incentives for the technology zone program annually to assure 64 alignment with the city strategy and economic development 65 strategy. 66 Sec. 35.2-3. Definitions. 67 For purposes of this article, the following words and 68 phrases shall have the meanings below, unless otherwise 69 expressly indicated to the contrary: 70 (a) Qualified technology business means a business which 71 derives its gross receipts from the design, development or 72 manufacturing of technology -based products, processes or related 73 services for lease, sale or license. Technology -based products, 74 processes or related services means engaging in the activity of 75 research, development, or manufacture of commodities used in 76 factory automation, biotechnology, biomedical research, 77 chemicals, electronics, computer hardware, computer software, 78 defense, energy, environmental, manufacturing equipment, 79 advanced materials, medical applications, pharmaceuticals, 80 photonics, electronic based subassemblies and components, 81 testing and measurements, telecommunications, systems 3 82 integration, multi -media, e-commerce, Internet services, and 83 transportation, including training in the aforementioned areas. 84 In no case shall the use of computers or telecommunications 85 services by a business in its internal operations qualify or be 86 considered in qualifying the business as a technology business. 87 A qualified technology business shall provide a minimum capital 88 investment of twenty million dollars ($20,000,000.00) in 89 personalty and/or improved real estate (exclusive of raw land 90 cost) or provide for the creation of three hundred (300) new 91 full time employees. Additionally, such business must pay its 92 employees average salaries, including benefits, of at least 93 fifty thousand dollars ($50,000.00) annually. All businesses, 94 whether newly located or existing within the boundaries of a 95 technology zone, which qualify under the criteria set out above 96 may be considered for qualified technology business status. 97 Qualification shall be granted and certified in writing by the 98 city manager or his designee. 99 (b) Qualified zone resident means an owner or tenant of 100 real property located in a technology zone who expands or 101 rehabilitates such property to locate the operation of a 102 qualified technology business within the technology zone. The 103 term property means a parcel, lot or unit for which a site plan 104 or building permit application has been submitted for approval. 105 Qualification of a zone resident shall be granted and certified 106 in writing by the city manager or his designee. 4 107 Sec. 35.2-4. Boundaries of technology zones. 108 (a) The technology zones shall be established by city 109 council by ordinance upon findings that the incentives provided 110 herein will enhance the establishment and growth of technology 111 businesses within the area under consideration. 112 As technology zones are established by city council, they shall 113 be further identified by reference to the map entitled "Virginia 114 Beach Technology Zones" which shall be incorporated into and 115 made a part of this chapter and all future ordinances 116 establishing a technology zone. 117 (b) Qualified technology businesses, and, where 118 applicable, qualified zone residents located in a designated 119 technology zone shall be entitled to the incentives offered in 120 this article. 121 Sec. 35.2-5. Business tax rebate. 122 (a) All qualified technology businesses shall be entitled 123 to a rebate of business, professional and occupational license 124 taxes imposed by Chapter 18 of the Virginia Beach City Code as 125 follows: 126 (1) One hundred (100) percent rebate in year one (1); 127 (2) Eighty (80) percent rebate in year two (2); 128 (3) Sixty (60) percent rebate in year three (3); 129 (4) Forty (40) percent rebate in year four (4); and 130 (5) Twenty (20) percent rebate in year five (5). 5 131 Year one (1) is the first full calendar year in which a 132 business operates as a qualified technology business. However, 133 if a business operates as a qualified technology business for a 134 period of less than six (6) months in the calendar year, such 135 qualified technology business may elect to designate the 136 following calendar year as year one (1) for purposes of 137 obtaining the business tax rebate. 138 (b) The rebate shall apply for a period of five (5) 139 calendar years or until such time that the business no longer 140 operates as a qualified technology business, whichever is the 141 first to occur. If a business ceases to be a qualified 142 technology business, ceases to meet the minimum criteria for a 143 qualified technology business or removes its operation from the 144 City of Virginia Beach during a year in which the rebate 145 applies, supplemental prorated business license tax shall be 146 prorated for the months the business was a qualified technology 147 business. 148 (c) If more than one-half ( 1/2) of the gross receipts of 149 a qualified technology business are derived from a licensable 150 activity that qualifies the business, the business license tax 151 assessed on all gross receipts of such licensable activity shall 152 be subject to the graduated rebates described above. If one-half 153 ( 1/2) or less of the gross receipts of a particular licensable 154 activity of a qualified technology business is derived from 155 qualifying operations, the graduated rebates shall be applied 6 156 only to the amount of tax attributable to the gross receipts 157 earned from the qualifying business activity. 158 (d) In order to qualify for a business license tax rebate 159 under this article, during the first twelve (12) months of 160 operation within the technology zone, a qualified technology 161 business must apply to the department of economic development 162 who will investigate and forward the application to the city 163 manager or his designee to determine if the business is a 164 qualified technology business. The qualified technology business 165 shall have the burden of demonstrating, to the satisfaction of 166 the city manager, that it meets the definition of a qualified 167 technology business and that it meets all applicable criteria 168 for a business license tax rebate. The qualified technology 169 business shall also file an annual business license application 170 with the commissioner of the revenue and shall provide the 171 commissioner with certification from the city manager that the 172 business is a qualified technology business. The amount of gross 173 receipts to be earned shall be set out in the license 174 application and shall be subject to verification by the 175 commissioner of the revenue by audit or inspection of documents. 176 The qualified technology business shall also provide the 177 commissioner with proof that no local taxes or fees are 178 outstanding at the time of application for the business license 179 tax rebate. 7 180 (e) Failure of a qualified technology business to pay in 181 full by the due date any taxes imposed by the city shall result 182 in the denial or revocation of the tax rebate for the remainder 183 of the current calendar year. 184 (f) All business license tax rebates are subject to 185 adjustment by the commissioner of the revenue based on actual 186 gross receipts earned from qualifying technology business 187 activities. Any additional business license tax assessed due to 188 such adjustments, or due to revocation of the tax rebate, shall 189 be subject to collection and delinquency provisions set out in 190 Chapter 18 of the City Code. 191 Sec. 35.2-6. Fee reimbursements under city ordinances. 192 The fee reimbursements provided below shall apply to 193 qualified technology businesses and, where applicable, qualified 194 zone residents, for new construction, alterations and 195 rehabilitation, provided (i) that at least one hundred (100) 196 percent of the total cost of the construction is expended on 197 facilities which will house or directly accommodate a qualified 198 technology business; and (ii) that the application for fee 199 reimbursements is submitted to the director of economic 200 development within eighteen (18) months from the date a 201 certificate of occupancy is issued. Fees reimbursed pursuant to 202 this article shall be paid out by the city. 203 (a) Fees imposed under the building code. Applications for 204 reimbursement of all fees imposed under Chapter 8 of the City 8 205 Code entitled "Buildings and Building Regulations" shall be made 206 to the director of economic development along with a 207 certification from the city manager that the applicant is a 208 qualified technology business or a qualified zone resident and 209 evidence that the proposed construction will meet the criteria 210 set out above for fee reimbursement. All building code fees must 211 be paid by the qualified technology business or qualified zone 212 resident prior to receiving reimbursement from the department of 213 economic development. 214 (b) Fees imposed under the zoning ordinance. Applications 215 for reimbursement for fees imposed for rezonings and conditional 216 rezonings under section 107 of the city zoning ordinance 217 (Appendix A) and for fees imposed for conditional use permits 218 under section 221(b) of the city zoning ordinance (Appendix A) 219 shall be made to the director of economic development. Such 220 application shall include certification from the city manager 221 that the applicant is a qualified technology business or a 222 qualified zone resident and evidence that the proposed land use 223 and/or construction activities will meet the criteria set out 224 above for fee reimbursement. All land use application fees must 225 be paid by the qualified technology business or qualified zone 226 resident prior to receiving reimbursement from the department of 227 economic development. 228 (c) Fees imposed under subdivision regulations and site 229 plan ordinance. Application for reimbursement of fees imposed 9 230 for subdivision and site plan review under the city's 231 subdivision regulations (Appendix B) and the city's site plan 232 ordinance (Appendix C) shall be made to the director of economic 233 development. Such application shall include certification from 234 the city manager that the applicant is a qualified technology 235 business or a qualified zone resident and evidence that the 236 proposed land use and /or construction activities will meet the 237 criteria set out above for fee reimbursement. All subdivision 238 and/or site plan review fees must be paid by the qualified 239 technology business or qualified zone resident prior to 240 receiving reimbursement from the department of economic 241 development. 242 (d) Water and sewer connection fees. Application for 243 reimbursement of water and sewer connection fees imposed under 244 Chapter 37 of the City Code shall be made to the director of 245 economic development. Applications shall include certification 246 from the city manager that the applicant is a qualified 247 technology business or a qualified zone resident and evidence 248 that the utility connections and related construction will meet 249 the criteria set out above for fee reimbursement. All water and 250 sewer connection fees must be paid by the qualified technology 251 business or qualified zone resident prior to receiving 252 reimbursement from the department of economic development. ME 253 Sec. 35.2-7. Non -waiver. 254 Unless expressly stated herein, this article shall not be 255 construed to waive the requirement of any ordinance, regulation 256 or policy of the City of Virginia Beach, including, but not 257 limited to, those ordinances, regulations and policies which 258 require permits and approvals for land use and construction. 259 Additionally, unless stated otherwise herein, nothing in this 260 article shall be construed as waiving the right of the City of 261 Virginia Beach to enforce its ordinances, regulations or 262 policies to collect any taxes, fees, fines, penalties, or 263 interest imposed by law on a qualified technology business or 264 qualified zone resident or upon real or personal property owned 265 or leased by a qualified technology business or qualified zone 266 resident. The City of Virginia Beach reserves the right to 267 remove qualified technology business or qualified zone resident 268 status for any business that is not compliant with any city 269 ordinance, regulation, policy or other legal requirement. 270 Sec. 35.2-8. Education and promotion. 271 The city manager or his designee shall develop programs to 272 educate the public and potential businesses of the benefits of 273 technology zones. 274 Sec. 35.2-9. Restrictions. 275 No qualified technology business or qualified zone resident 276 may apply for or receive a tax or fee rebate or reimbursement 277 under this article on the basis of a building permit issued on 11 278 construction commenced prior to the establishment of the 279 technology zone in which the property lies. 280 COMMENT 281 The full text of Sections 35.2-1 thr. -9 is shown for references purposes only. No changes 282 have been made. 283 284 285 ARTICLE 2. APZ-1 Technology/Business Opportunity Zone. 286 Sec 35.2-10. Intent; findings. 287 (a) It is the intent of the City Council in establishing 288 the Accident Potential Zone 1 (APZ-1) Technology/Business 289 Opportunity Zone to: 290 (1) facilitate the establishment and growth of 291 businesses that are compatible with flight 292 operations at Naval Air Station Oceana, as 293 determined pursuant to Section 1804 of the City 294 Zoning Ordinance, in areas within Accident 295 Potential Zone 1 (APZ-1); and 296 (2) preserve and protect the health, safety and 297 quality of life of persons who work or reside in 298 APZ-1 and not adversely affect established 299 residential neighborhoods. 300 (b) The City Council hereby finds that: 301 (1) the establishment of a technology/business 302 opportunity zone in APZ-1 will foster the 303 development of businesses in APZ-1 that are 12 304 compatible with aircraft operations at Naval Air 305 Station Oceana and other uses in APZ-1, to the 306 benefit of the public health, safety, welfare and 307 convenience throuqh the enhancement of public 308 revenues and the creation of employment 309 opportunities. 310 Sec. 35.2-11. Establishment of APZ-1 Technology/Business 311 Opportunity Zone. 312 The APZ-1 Technology/Business Opportunity Zone is hereby 313 established. The zone shall consist of all areas within APZ-1, 314 as shown on the official zoning map of the City of Virginia 315 Beach. 316 (b) Notwithstanding the other provisions in this chapter, 317 all qualifyinq businesses located in APZ-1 shall be entitled to 318 a rebate of ninety percent (900) of business, professional and 319 occupational license taxes imposed by Chapter 18 of the City 320 Code. 321 (c) Notwithstanding the other provisions in this chapter, 322 fee reimbursements for fees imposed under the building code, 323 fees imposed under the zoning ordinance, fees imposed under 324 subdivision regulations and the site plan ordinance, and water 325 and sewer connection fees, shall be provided to all qualifyin 326 businesses for new construction, alterations, and rehabilitation 327 in APZ-1. 13 328 (d) A "qualifying business" for purposes of this section 329 is defined as any business that conforms to the requirements of 330 Section 1804, Table 2, of the City Zoning Ordinance that is 331 located or locates in the APZ-1 Technology/Business Opportunity 332 Zone and complies with and continuously maintains such 333 compliance with the development standards set forth in Section 334 1810 of the City Zoning Ordinance. Qualifying businesses may 335 include businesses currently located in APZ-1, businesses 336 relocating to APZ-1 and new businesses locatinq in APZ-1. 337 (e) The tax rebate provided under this section shall be 338 available to any qualifying business for a period of fifteen 339 (15) years from the date of the approval of its application 340 pursuant to Section 1810 of the City Zoninq Ordinance, so long 341 as the business remains in compliance with the development 342 standards set forth in Section 1810 of the City Zoning 343 Ordinance. ME-11 345 346 347 348 349 350 351 The new Article establishes a Technology/Business Opportunity Zone encompassing the entirety of Accident Potential Zone 1. The provisions applicable in the APZ-1 Technology/Business Opportunity Zone are entirely separate and distinct from those in other Technology Zones. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of . 2006. 14 APPROVED AS TO CONTENT: Manag ent Services APPROVED AS TO LEGAL SUFFICIENCY: f Cit Attorney's Office CA9926 H:\PA\GG\OrdRes\Technology Zone ORD R-9 March 23, 2006 15 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Establishing the APZ-1 Property Tax Exemption District and Amending City Code Section 35-172 MEETING DATE: March 28, 2006 ■ Background: On December 20, 2005, City Council adopted a "Plan for Compliance with the BRAC Commission's Decision Regarding NAS Oceana." In accordance with this plan, the City Council intends to adopt other ordinances and programs (collectively, the "Oceana Land Use Conformity Program") to make funds and incentives available for the purposes of encouraging the voluntary replacement or relocation of nonconforming uses in Accident Potential Zone 1 (APZ-1), as determined pursuant to the Department of the Navy's OPNAV Instruction 11010.3613 and Section 1804 of the City Zoning Ordinance, so as to facilitate efforts of both the private and public sectors that will roll back encroachment by nonconforming uses in APZ-1. The Oceana Land Use Conformity Program will encourage the development of uses and structures in APZ-1 that are compatible with both flight operations arising out of NAS Oceana and established residential neighborhoods. The Oceana Land Use Conformity Program will ensure that the development and redevelopment of conforming uses in APZ-1 occurs only where and when it can be accomplished in a manner that is clearly not detrimental to established residential neighborhoods within APZ-1 and in a manner consistent with sound planning and land use principles to promote the orderly and compatible co -existence of different uses in APZ-1. ■ Considerations: This ordinance will establish the APZ-1 Property Tax Exemption District for the rehabilitation, renovation, or replacement of a structure in APZ-1. To qualify for the partial tax exemption: (1) The assessed value after the rehabilitation, renovation, or replacement of the structure must be greater than the original assessed value, (2) The property must undergo rehabilitation, renovation, or replacement for commercial or industrial use; (3) The plan must be consistent with the City's comprehensive plan and zoning ordinances; (4) The rehabilitation, renovation, or replacement must result in the conversion of a nonconforming use to a conforming use; and (5) Any partial exemption of property in the district shall be subject to and comply with the provisions of Virginia Code §§ 58.1-3220.1 and -3221, and City Code §§ 35-70 through -74, as applicable. Qualifying properties will be exempt from taxation on the increase in assessed value due to the rehabilitation, renovation, or replacement. Any partial exemption of property in the tax exemption district shall run with the real estate for a period of fifteen (15) years from the date of the completion of the rehabilitation, renovation, or replacement. This ordinance also amends the City Code to exempt property in the APZ-1 Property Tax Exemption District from the requirement that the assessed value of property increase by at least forty percent as a result of the rehabilitation, renovation, or replacement to qualify for the exemption. ■ Public Information: Information will be disseminated through the regular Council agenda notification process. Additionally, notice of a public hearing was published in The Beacon, and Council held a public hearing on March 14, 2006. ■ Recommendations: Approval. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Department of Management Service City Manager: <zt'36W- 1 AN ORDINANCE TO AMEND CHAPTER 35 OF THE 2 CITY CODE BY ADDING A NEW SECTION 35- 3 72.1, ESTABLISHING THE APZ-1 PROPERTY TAX 4 EXEMPTION DISTRICT, AND AMENDING CITY 5 CODE SECTION 35-72 6 7 Section Added: City Code Section 35-72.1 8 9 Section Amended: City Code Section 35-72 10 WHEREAS, on December 20, 2005, the City Council adopted 11 Ordinance No. 2914 K, entitled "An Ordinance Adopting the City's 12 Plan for Compliance with the Base Realignment and Closure 13 Commission's Decision Regarding Naval Air Station Oceana" as well 14 as other related ordinances, including the adoption of the APZ-1 15 Use and Acquisition Plan; and 16 WHEREAS, in adopting Ordinance No. 2914K and the APZ-1 Use 17 and Acquisition Plan, the City Council directed the City Manager to 18 bring forward for consideration by the City Council additional 19 innovative methods of replacing nonconforming uses with conforming 20 uses in Accident Potential Zone 1 (APZ-1); and 21 WHEREAS, the voluntary replacement of nonconforming uses with 22 conforming uses by both the private and public sectors and 23 relocation of nonconforming uses to sites outside of APZ-1, 24 encouraged and facilitated by incentives and land use controls, is 25 the most effective, cost efficient, and acceptable means of 26 accomplishing the purposes of rolling back the encroachment of 27 nonconforming uses in APZ-1; and 28 WHEREAS, the City Council intends to enact ordinances and 29 programs to make funds and incentives available for these purposes, 30 including appropriations, land use incentives, tax incentives and 31 economic development incentives to further these purposes; and 32 WHEREAS, it is the opinion of the City Council that a partial 33 property tax exemption for APZ-1 will further these purposes; and 34 WHEREAS, the City Code currently allows a partial exemption 35 from property taxes for certain rehabilitated, renovated, or 36 replaced structures; 37 NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 38 VIRGINIA BEACH, VIRGINIA: 39 That Chapter 35 of the City Code is hereby amended and 40 reordained by the addition of a new Section 35-72.1 and the 41 amendment of City Code Section 35-72, to read as follows: 42 Sec. 35-72. Partial exemption from taxation for certain 43 rehabilitated, renovated or replacement structures. 44 45 (a) Exemption authorized amount. Partial exemption from real 46 estate taxes is hereby authorized for qualifying property 47 rehabilitated in accordance with the criteria set out in Article X, 48 Section 6, Paragraph (h) of the Constitution of Virginia and §§ 49 58.1-3220.1 and 58.1-3221 of the Code of Virginia of 1950, and this 50 division. The partial exemption shall be an amount equal to the 51 increase in assessed value resulting from rehabilitation of an 52 eligible commercial or industrial structure as determined by the 53 assessor. 54 (b) Procedure to obtain exemption. 55 (1) The application shall be on a form created and 56 supplied by the assessor. Applications must be 57 filed with the assessor prior to the commencement 58 of any rehabilitation for which an exemption is 59 sought. No structure shall be eligible for 60 exemption unless the appropriate building permits 61 have been obtained. 62 (2) Upon receipt of an application for partial tax 63 exemption, the assessor shall determine the base 64 value of the existing structure. 65 (3) The application to qualify for tax exemption shall 66 be effective until June 30 of the second calendar 67 year following the year in which application is 68 submitted. Except for properties located in the 69 APZ-1 Property Tax Exemption District, if 3-f by 70 such expiration date rehabilitation has not 71 progressed to such a point that the assessed value 72 of the structure is at least forty (40) percent 73 greater than the base value of such structure to 74 retain such eligibility, a new application to 75 qualify for tax exemption must be filed and a new 76 base value established. For properties located in 77 the APZ-1 Property Tax Exemption District, if by 78 such expiration date rehabilitation has not 79 progressed to such a point that the assessed value 80 of the structure is at least twenty (20) percent 81 greater than the base value of such structure to 82 retain such eligibility, a new application to 83 qualify for tax exemption must be filed and a new 84 base value established. 85 (4) The initial application to qualify for the 86 rehabilitated structure tax exemption, and any 87 subsequent application, must be accompanied by a 88 payment of a fee of one hundred dollars ($100.00), 89 which shall be applied to offset the cost of 90 processing the application, making required 91 assessments, and inspecting the progress of the 92 work. 93 (5) During the period between the receipt of the 94 application and the time the assessor ascertains 95 that the structure has increased so that it 96 qualifies for the exemption authorized by this 97 article, the property shall be subject to taxation 98 upon the full value of the existing improvements to 99 the property. 100 (6) Any tax exemption shall become effective on the 101 date of the next deadline for payment of real 102 estate taxes following completion of the 103 rehabilitation, renovation or replacement. 104 (c) Vacant land. Improvements on vacant land are not 105 eligible. 106 (d) Credit on tax bill. The owner or owners of property 107 qualifying for partial exemption of real estate taxes under this 108 division shall be credited on the tax bill for the property in the 109 amount of the difference between the taxes computed upon the base 110 value and the initial rehabilitated assessed value of the property 111 for each year of the partial exemption from real estate taxes. The 112 amount of this credit shall not increase, even if the assessed 113 value later increases. 114 (e) Decrease in assessment. If a qualifying property's 115 assessed value decreases after the first year of any 116 rehabilitation, the amount of the exemption shall be reduced to the 117 difference between taxes computed on the base value and the 118 decreased assessed value of the property. 119 (f) Exemption to run with land. The exemption from taxation 120 authorized by this division shall run with the land. 121 COMMENT 122 The amendments revise the provisions of this section as necessary to avoid conflicts with new 123 Section 35-72.1. 124 125 126 Sec. 35-72.1. Same; Accident Potential Zone 1 (APZ-1). 127 (a) District established. The Accident Potential Zone 1 128 (APZ-1) Property Tax Exemption District (the "District") is hereby 129 established. 130 (b) Purpose. The purpose of the District shall be to 131 encourage the redevelopment and revitalization of real property in 132 APZ-1 by converting nonconforming uses, as determined pursuant to 133 Section 1804 of the City Zoning Ordinance, to conforming uses. 134 (c) District Boundaries. The District shall consist of all 135 areas within APZ-1, as shown on the official zoning map of the 136 City. 137 (d) Eligibility Criteria; duration of exemption. Property 138 qualifying for an exemption pursuant to this ordinance shall meet 139 the following criteria: 140 (1) The assessed value after the rehabilitation 141 renovation, or replacement of the structure shall 142 be at least twenty (20) percent greater than the 143 base assessed value; 144 (2) The property shall undergo rehabilitation, 145 renovation, or replacement for commercial or 146 industrial use; 147 (3) The plan shall be consistent with the City's 148 comprehensive plan and zoning ordinances; 149 (4) The rehabilitation, renovation, or replacement 150 shall result in the conversion of a nonconforming 151 use to a conforming use; and 152 (5) Any partial exemption of property in the District 153 shall be subject to and comply with the provisions 154 of Virginia Code Sections 58.1-3220.1 and -3221 and 155 City Code Sections 35-70 through -74, as 156 applicable. 157 (e) Duration of exemption. Any partial exemption of 158 property in the District shall run with the real estate for a 159 period of fifteen (15) years from the date of the completion of the 160 rehabilitation, renovation, or replacement. 161 COMMENT 162 The amendments establish the Accident Potential Zone 1 (APZ-1) Property Tax Exemption 163 District and set forth the criteria for the exemption to apply, the amount and duration of the exemption 164 and other requirements. 165 166 In addition, for reference purposes, sections 35 -70, 35-71, 35-73, and 35-74 provide as follows: 167 Sec. 35-70. Partial tax exemption for certain substantially rehabilitated, renovated or replaced 168 commercial or industrial structures; policy and intent. 169 170 It is the purpose of this division to implement the provisions of Article 3, Chapter 32 of Title 58.1 171 of the Code of Virginia to permit the city to allow a partial tax exemption for certain substantially 172 rehabilitated, renovated or replaced commercial or industrial structures. The exemption will (1) provide 173 an economic incentive for improvement of real estate and (2) prevent deterioration and decay that is 174 harmful to the health and welfare of the city and its residents. This division establishes a procedure for 175 property owners within certain designated areas in the City of Virginia Beach to obtain partial real estate 176 tax exemptions for certain substantially rehabilitated, renovated or replaced commercial or industrial 177 structures. The eligibility criteria and the term of the exemption shall be established by ordinance for each 178 district and may vary to reflect different property and economic conditions in the city. 179 180 Sec. 35-71. Definitions. 181 182 For the purposes of this division, the following words and phrases shall have the meanings 183 respectively ascribed to them by this section. 184 185 Assessor: Real estate assessor for the City of Virginia Beach. 186 187 Base value: The assessed value of the structure as of July 1 during the tax year in which the rehabilitation, 188 renovation or replacement of the structure begins. 189 190 Exemption: The real estate taxes resulting from the increase in the assessed value of a commercial or 191 industrial structure that is determined by the assessor to be directly attributable to the substantial 192 rehabilitation, renovation or replacement of the structure. 193 Exemption districts: Described zones or districts with boundaries determined by the city council in which 194 qualifying property may be partially exempted from real estate pursuant to the terms of this division or as 195 provided for the district. 196 197 Owner: All persons or entities holding title to real estate with a commercial or industrial structure or 198 structures thereon for which an exemption is requested, including persons or entities with a leasehold 199 interest as defined by § 58.1-3203 of the Code of Virginia. 200 201 Rehabilitated structure: An existing commercial or industrial structure, no less than twenty (20) years of 202 age, located in an exemption district that has been substantially rehabilitated or renovated, or a 203 replacement commercial or industrial structure located in an exemption district that replaces an existing 204 structure of no less than twenty (20) years of age. Each district shall have criteria established for the level 205 of improvements required for the structure(s) that will be rehabilitated, renovated or replaced. 206 207 Rehabilitation: Rehabilitation, renovation or replacement of an eligible structure. 208 209 Sec. 35-73. Assessor to provide exemption information; exemptions not to be set out in land 210 book. 211 212 (a) By August 15 of each year of the period of exemption from real estate taxes, the assessor 213 shall notify the city treasurer of the exemption and the amount to be credited to the owner's tax bill. 214 215 (b) Pursuant to Code of Virginia § 58.1-3221(C), the commissioner of the revenue shall not list 216 or display any exemption provided by this division in the land book. 217 218 (c) The assessor shall make available application forms in the assessor's office, in the office of 219 the permits and inspections division of the planning department and on the city's website for use by 220 property owners who propose to rehabilitate qualifying structures. 221 222 Sec. 35-74. Forfeiture of exemption; penalty and interest. 223 224 (a) The partial exemption for each tax year shall be conditioned upon the payment of the 225 nonexempt amount of real estate taxes on the property on the payment deadlines of each tax year; if, 226 through the fault of the owner, these real estate taxes are not paid on or before these deadlines, the partial 227 exemption for that tax year shall be forfeited. 228 229 (b) Late payments shall be subject to the penalty and interest provisions of section 35-37 of 230 this Code, with penalty and interest calculated on the total amount of taxes due as if the property were not 231 exempt. 232 233 Adopted by the Council of the City of Virginia Beach, 234 Virginia, on the day of , 2006. APPROVED AS TO CONTENT: n Management Services APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office CA-9938 PA/GG/ORDRES/APZ-1 Tax Exemption District ORD.doc R-8 March 17, 2006 eo f - CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend the Economic Development Investment Program ("EDIP") Policy and Procedure to Further the Oceana Land Use Conformity Program MEETING DATE: March 28, 2006 ■ Background: The City of Virginia Beach Development Authority (the "Authority") was created pursuant to Chapter 643 of the Acts of Assembly of 196 4, as amended and supplemented by the Industrial Development and Revenue Bond Act, Chapter 49, Title 15.2 of the Code of Virginia of 1950, as amended (the "Act"). One of the primary purposes of the Act is "to promote industry and development trade by inducing manufacturing, industrial, governmental and commercial enterprises to locate or remain in the Commonwealth...." The City of Virginia Beach (the "City") established the Economic Development Investment Program ("EDIP") in FY1993-94, and has thereafter provided EDIP appropriations to the Authority to facilitate the accomplishment of the aforesaid purpose of the Act and the goals and objectives of the Authority as set forth in the Act. On January 25, 1994, the City and the Authority approved the Economic Development Investment Program Policy and Procedure (the "EDIP Policy") to ensure that the expenditure of EDIP funds is made in the public interest and is in furtherance of the purposes for which the EDIP was established. On February 10, 2004, the City and the Authority approved certain amendments to the EDIP Policy. ■ Considerations: The single largest employer in the City of Virginia Beach is NAS Oceana, and efforts aimed at retaining NAS Oceana as a master jet base are critical to the City. To advance the City's purpose of retaining NAS Oceana as a master jet base, the City Council adopted zoning amendments in response to the BRAC Order on December 20, 2005 (the "APZ-1 Ordinance"), and is currently considering adoption of the Oceana Land Use Conformity Program. City staff has recommended certain changes to the EDIP Policy to further the goals of the APZ-1 Ordinance and the Oceana Land Use Conformity Program. The EDIP Policy may not be amended without the prior consent of the City Council and the Authority. The Authority approved such changes to the EDIP Policy, subject to City Council concurrence, on March 21, 2006. ■ Public Information: Notice of this Ordinance will be handled through the normal agenda process. ■ Alternatives: Do not approve revisions to EDIP Policy, which could result in EDIP funds not being used to further the goals of the Oceana Land Use Conformity Program. ■ Recommendations: Approval ■ Attachments: Ordinance, Proposed Amendments to the EDIP Policy. Recommended Action: Approval Submitting Department/Agency: Economic Development City Manage X:\OID\REAL ESTATE rP,-qjctr,\BRAC\EDIP Amendment ARF.doc 1 ORDINANCE TO AMEND THE ECONOMIC DEVELOPMENT 2 INVESTMENT PROGRAM ("EDIP") POLICY AND 3 PROCEDURE TO FURTHER THE OCEANA LAND USE 4 CONFORMITY PROGRAM 5 6 WHEREAS, on January 25, 1994, the City Council of the City of 7 Virginia Beach (the "City Council") and the City of Virginia Beach 8 Development Authority (the "Authority") approved the Economic 9 Development Investment Program Policy and Procedure (the "EDIP 10 Policy") to ensure that the expenditure of Economic Development 11 Investment Program ("EDIP") funds is made in the public interest 12 and is in furtherance of the purposes for which the EDIP was 13 established; 14 WHERAS, on February 10, 2004, City Council and the Authority 15 approved certain amendments to the EDIP Policy; 16 WHEREAS, the City Council finds that one of the greatest 17 economic development measures the City can accomplish is to retain 18 NAS Oceana as a master jet base in the City of Virginia Beach; 19 WHEREAS, on December 20, 2005, the City Council adopted zoning 20 amendments made in response to the BRAC Order (the "APZ-1 21 Ordinance") in an effort to retain NAS Oceana as a master jet base 22 in the City of Virginia Beach; and 23 WHEREAS, City Council has determined that certain additional 24 amendments to the EDIP Policy are necessary to further the City's 25 efforts to convert certain property in APZ-1 and Clear Zone areas 26 to uses that conform to the APZ-1 Ordinance; and 1 27 WHEREAS, on March 21, 2006, the Authority approved such 28 amendments to the EDIP Policy, subject to City Council concurrence; 29 and 30 WHEREAS, Part C, Section 6 of the EDIP Policy provides that 31 the EDIP Policy shall not be amended without the prior consent of 32 the City Council and the Authority. 33 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 34 VIRGINIA: 35 1. That the amendments to the EDIP Policy are hereby 36 approved in the form as attached hereto; and 37 2. That the Mayor is hereby authorized to execute the 38 amended EDIP Policy on behalf of the City. 39 Adopted by the City Council of the City of Virginia Beach, 40 Virginia, on the day of , 2006. CA-9866 X:\OID\REAL ESTATE\DEVAUTH\EDIP\Forms\EDIPPOLBRAC.res.doc March 17, 2006 R-1 Approved as to Legal Sufficiency: 1 vf City t rney's 0 V 'ce 2 ECONOMIC DEVELOPMENT INVESTMENT PROGRAM POLICY AND PROCEDURE WHEREAS, the City of Virginia Beach Development Authority (the "Authority") was created pursuant to Chapter 643 of the Acts of Assembly of 1964, as amended (the "Act"); WHEREAS, one of the primary purposes of the Act is to enable development authorities "to promote industry and develop trade by inducing manufacturing, industrial, governmental and commercial enterprises to locate in or remain in the Commonwealth...."; WHEREAS, pursuant to § 6 of the Act, the Authority has the power, inter alia, "to sell, exchange, donate and convey any or all of its facilities or other properties whether realty or personalty whenever the Authority shall find any such action to be in furtherance of the purposes for which the Authority was organized"; WHEREAS, pursuant to §-7 of the Act, "the Authority may foster and stimulate the development of industry in the area within its jurisdiction... [and] may accept, and expend for the purposes stated above, money from any public or private source...."; WHEREAS, pursuant to _§ 10 of the Act, the City of Virginia Beach (the "City") "is authorized and empowered to make appropriations and to provide funds for the operation of the Authority and to further its purposes"; WHEREAS, the economic development goals and objectives of the City include achieving a higher ratio of nonresidential to residential real estate assessments, investing in land and infrastructure to benefit future economic growth, and maximizing the return of economic development efforts through the development and implementation of programs and strategies that facilitate new business investment and encourage retention and expansion activities thereby improving the overall quality of life in the City; WHEREAS the single lamest employer in the City is N AS Oceana, and investments and economic development efforts aimed at retaining NAS Oceana as a master jet base are critical to the City's economic "health": WHEREAS, the City has established the Economic Development Investment Program ("EDIP") as part of its overall effort to enhance the City's ability to accomplish these goals and objectives; WHEREAS, pursuant to the authority and empowerment set forth in $ 10 of the Act, City Council has determined that it would be in the best interests of the City to provide EDIP appropriations to the Authority to enable the Authority to more effectively continue its efforts to foster and stimulate economic development by (i) inducing businesses to locate or remain in the City; and (ii) providing incentives to qualifying developers and property owners for the development or redevelopment of under improved or underdeveloped properties, or brownfields, grey fields, or abandoned or blighted properties in areas of the City which have been designated as —Strategic Strategic Growth Areas' ' or —Economic Economic Redevelopment Areas' I, including infill development within such areas; and WHEREAS, the City and the Authority have agreed that the provision of funds in the EDIP account to the Authority for economic development purposes, and the subsequent provision of such funds by the Authority to qualifying recipients, should be subject to policies and procedures which will ensure that the expenditure of such funds is in the public interest and is in furtherance of the purposes for which the EDIP was established; NOW, THEREFORE, the City of Virginia Beach and the City of Virginia Beach Development Authority hereby adopt the following Economic Development Investment Program Policy and Procedures (the ` ` Policy' I ): PART A: POLICY AND PROCEDURE FOR THE PROVISION OF EDIP FUNDS TO QUALIFYING BUSINESSES. 1. PURPOSE AND INTENT. The animating purpose of Part Aofthe Economic Development Investment Program shall be to enhance the ability of the City of Virginia Beach Development Authority to foster and stimulate economic development in the City by inducing new businesses to locate in the City, and existing businesses to remain in the City or to expand their operations. 2. INVESTMENT CRITERIA. Except as otherwise provided in paragraph 4 of this Part A, EDIP funds may be awarded pursuant to Part A of this Policy where the Director of Economic Development (the ` ` Director I I ) has determined, and has advised the Authority that one or more of the following criteria have been met: a. The net amount of direct tax revenues returned to the City by a business to which EDIP funds are provided will exceed the amount of EDIP funds so provided no later than thirty (30) months from the date on which the business commences operations at a new or renovated facility; b. For every one dollar ($1) in EDIP funds provided, the business to which such funds are provided will spend twenty-five dollars ($25) or more in new capital investment, including buildings, furnishings, and/or equipment; and/or c. Every one thousand dollars ($1,000) in EDIP funds provided will yield at least one (1) new "full-time equivalent" employment opportunity in the business to which such funds are provided. However, for businesses paying an average annual salary of $70,000 (excluding benefits) the criteria shall be up to two thousand dollars ($2,000) in EDIP funds provided will yield at least one (1) new I " full-time equivalent' ' employment opportunity in the business to which such funds are provided. These criteria shall be reviewed by the Director and the Director of the Department of Management Services on a bi-annual basis. The Director shall recommend any appropriate revisions to the City Council and the Authority for further consideration and action. In addition to the foregoing criteria, it is the goal of the Authority to approve EDIP funds to businesses that pay an average annual salary of $35,000 (excluding benefits). However, the Authority reserves the right to deviate from this goal in exceptional cases and for good cause shown. 3. APPLICATION FOR EDIP AWARD. A business who desires EDIP funds to locate, relocate or expand its business in the City of Virginia Beach may make application for that purpose through the Department of Economic Development. The applicant shall submit such information and documentation concerning its application as may be required by the Director. The Director shall review the application and information submitted and may, if the Director finds that the application meets the requirement of this Part A, recommend to the Authority that it award EDIP funds to the business. 4. COUNCIL APPROVAL OF CERTAIN EDIP AWARDS. If the Director, acting on behalf of the Authority, determines the need to provide EDIP funds to a specific business, but the criteria set forth in paragraph 2 of this Part A have not been met, the Authority shall obtain specific approval from City Council prior to its approval of the provision of EDIP funds for such purpose. 5. AUTHORITY FINDINGS AND ACTION. Based upon the recommendation of the Director, the Authority shall either approve or disapprove the proposed provision of EDIP funds to the business. The Authority shall not be required to approve the Director's recommendation, but shall exercise its legislative discretion in determining whether, and to what extent, the application satisfies Part A of this Policy and the Authority's objective of fostering and stimulating the development of industry in the City. Provided, however, that prior to approval, the Authority must make the following findings: a. That the animating purpose of the proposed provision of EDIP funds to the business is to serve the public purpose of fostering and stimulating economic development in the City of Virginia Beach, and that the expenditure of such funds will only incidentally enure to the benefit of private interests, if at all; b. That the proposed provision of EDIP funds to the business is in furtherance of the purposes for which the Authority was created; c. That without the stimulus of the EDIP award, it is unlikely that the business would locate or remain in the City; and d. That as of the date of approval of the EDIP award, the business had not yet commenced construction of the proposed improvements. 6. APPROVAL OF AWARD OF EDIP FUNDS. Approval by the Authority of the provision of EDIP funds to a specific business pursuant to this Part A shall be in the form of a resolution which shall include the following information: a. The name, location, and nature of the business to which the funds will be provided; b. The amount of funds that will be provided; c. The purpose or purposes for which the funds will be provided; Gd d. A statement that the criteria set forth in paragraph 2 of this Part A have been met; or, in the alternative, that City Council has specifically approved provision of EDIP funds for such purpose pursuant to paragraph 4 of this Part A; and e. A statement that the findings set forth in paragraph 5 of this Part A have been made by the Authority. PART B: POLICY AND PROCEDURE FOR THE PROVISION OF EDIP FUNDS TO QUALIFYING DEVELOPERS AND PROPERTY OWNERS FOR THE DEVELOPMENT OR REDEVELOPMENT OF PROPERTIES IN STRATEGIC GROWTH AREAS OR ECONOMIC REDEVELOPMENT AREAS. 1. PURPOSE AND INTENT. It is recognized that within the City there are areas that are currently brownfields, greyfields or vacant, abandoned, under improved or underdeveloped with improvements or land uses which are not economically viable or, in APZ.-1 and Clear Zones not advancing the Ci.ty's purpose of retaining NAS Oceana as a master jet base in Virginia Beach. but, if developed, should stimulate industry and economic development within the City. Moreover, such properties and areas, if developed or redeveloped, may reasonably be expected to (i) generate additional tax revenue as a result of capital investment; (ii) create additional job opportunities; (iii) influence similar redevelopment and additional investment in nearby properties;(iv) further the goals of the Comprehensive Plan and be consistent with the City' s Economic Development Strategy and good zoning principles; a*-(v) in the APZ-1 and Clear Zone areas. encourage the conversion of property that does not conform to the City's zoning amendments adopted in response to the BR AC Order on December 20. 2005 (the "APZ-1 Ordinance") to uses that do conform to the APZ-1 Ordinance including the relocation of nonconforming properties to areas of the City outside the APZ-1 and Clear Zones and the location of conforming properties within the APZ-1 and Clear Zones: and (vi) lead to the establishment of safe and convenient neighborhoods and workplaces. Accordingly, it is the animating purpose of the Economic Development Investment Program under Part B of this Policy to enhance the ability of the City of Virginia Beach Development Authority to foster and stimulate economic development in the City by providing incentives for the development or redevelopment of properties described herein. 2. ECONOMIC REDEVELOPMENT AREAS AND STRATEGIC GROWTH AREAS. The Directors of the Departments of Economic Development and Planning shall identify areas of the City (i) that are currently brownfields, greyfields, or vacant, abandoned, under improved or underdeveloped, or that are in the areas of the City designated. as APZ-1. or Clear Zones, and (ii) which should be considered for redevelopment or special development opportunities, but may lie outside of the Strategic Growth Areas as set forth in the City, s Comprehensive Plan. Such areas shall be known -as ` ` Economic Redevelopment Areas' I. Once identified, an Economic Redevelopment Area must be submitted to the City Council for designation as such by ordinance. To qualify for EDIP funds under Part B of this Policy, a developer or owner of property must demonstrate that the subject property is located within a Strategic Growth Area which has been designated as such in the Comprehensive Plan or has been designated an Economic Redevelopment Area as defined herein by ordinance of the City Council. For purposes of this Policy, the term ` ` brownfields I ' means vacant, abandoned or under improved real property large enough to support significant expansion, redevelopment or reuse, but for which such expansion, redevelopment or reuse is complicated by the presence of a substantial amount of hazardous substances, pollutants, or contamination. The term ` ` greyfields , , means underperforming, declining or vacant real estate. The term "APZ- I" means Accident Potential Zone l and the areas identified as APZ-I on the 1999 "Air Installations Compatible Use Zones" ("AICUZ") pamphlet published by the U.S. Department of the Navy. The term "Clear Zones" are those areas designated as "Clear Zones" on the 1999.AICUZ pamphlet. 3. QUALIFYING LAND USES. EDIP funds under Part B of this Policy may be provided for office, industrial, retail, hotel and mixed use development (including high density and multi -family residential uses). Notwithstanding the foregoing,EDIP funds under Part B of this policy for Economic Redevelopment Areas that are located in APZ- l and Clear Zones niay be provided only for uses consistent with the APZ-1 Ordinance and any amendments thereto. 4. INVESTMENT CRITERIA. (a) For Economic Redevelopment Areas not located in APZ-1 or Clear Zones, EDIP funds may be awarded pursuant to Part B of this Policy in such instances where the Director has determined, and has advised the Authority, that -both of the following criteria have been met: i. a —The net amount of direct tax revenues returned to the City as a result of the development or redevelopment for which the EDIP funds are - provided will exceed the amount of the EDIP funds provided no later than 48 months following the payment of the EDIP award; or where - C*1 flexibility for tax abatement has been granted by the City, the amount - of direct tax revenues not abated as a result of the development or — redevelopment for which EDIP funds are provided will exceed the — amount of the EDIP funds provided no later than 48 months following the payment of the EDIP award; and ii. b—For every one dollar ($1) in EDIP funds provided, the owner or developer of the development or redevelopment for which such funds are provided will spend twelve and 501100 dollars ($12.50) or more in new capital investment, including buildings, furnishings, and/or equipment. (b) For Economic Redevelopment Areas located in the APZ-1 or Clear Zones EDIP finds may be awarded. pursuant to Part B of this Policy in such instances where the Oceana Land Use Conformitv Committee has detennined. and has advised the Director, that the development or redevelopment for which EDIP funds will be provided will have the effect of furthering the goals of the Oceana Land. Use Conformitv Program. including bringing new uses into APZ-1 and Clear Zone areas that conform to the APZ-I Ordinance, converting nonconforming uses to conforming uses retaining conforming uses in APZ-1 and Clear Zones and relocating nonconforming uses in APZ-1 and Clear Zones to other areas of the City where such uses would be consistent with the Comprehensive Plan and the City Zoning Ordinance The Director shall advise the Authority of all determinations and recommendations made by the Oceana Land. Use Conformity Committee. The foregoing investment criteria and required return to the City shall be interpreted as being a threshold for consideration for the award of EDIP funds. No award of such funds may be made unless all other requirements of Part B of this Policy are satisfied and all findings stated in Part B of this Policy are made. The Authority- shall have complete discretion as to the award of funds and the amount of funds awarded as well as whether or not the criteria have been met 5. -.-)-.—AVAILABILITY OF FUNDS. (a) EDIP funds may be authorized for use pursuant to Part B of this Policy only to the extent that they have been appropriated by the City Council. Further, provided that in any given fiscal year, the Authority shall not award more than fifty percent (50%) of its appropriation for EDIP use for that year for development or redevelopment purposes pursuant to Part B of this Policy without authorization of the City Council. (b) Notwithstanding the foregoing, if the City Council specifically appropriates funds for EDIP use in APZ-1 and Clear Zone areas, then 100% of those specifically appropriated funds may be used for development and redevelopment purposes within APZ-1 and Clear Zones pursuant to Part B of this Policy. It is anticipated that such funds for EDIP use in APZ-1 and Clear Zone areas will be made available from CIP-9.060 (Oceana and Interfacilitv Traffic Area Confonnity and Acquisition). 6. APPLICATION FOR EDIP AWARD. A qualifying developer or owner of land who desires EDIP funds for use in the development or redevelopment of property located in a Strategic Growth Area or an Economic Redevelopment Area may make application for that purpose through the Department of Economic Development. The applicant shall submit such information and documentation concerning its application as may be required by the Director. The Director shall review the application and information submitted and may, if the Director finds that the development or redevelopment of the property described in the application satisfies all requirements of this Part B, recommend to the Authority that it award EDIP funds to the applicant. In determining whether to recommend that EDIP funds be awarded to an applicant, the Director shall find as follows: a. Whether the provision of EDIP funds is necessary to stimulate the _development or redevelopment of the property/area; and b. Whether the development or redevelopment satisfies the investment _criteria set forth in paragraph 4 of this Part B. Additionally, the Director may consider the following: c. The amount of EDIP funds remaining and available for use pursuant to this Policy for the fiscal year. d. The economic return to the City generated by the development or redevelopment in addition to the criteria set forth in paragraph 4 of this Part B . e. The expertise and experience of the developer or property owner _in redeveloping brownfields, greyfields, abandoned, blighted, under improved and underdeveloped properties. EA f. The degree to which the redevelopment may influence development _or redevelopment within the Strategic Growth Area or the Economic _Redevelopment Area and adjacent or nearby properties. g. The extent to which the development or redevelopment may serve _to implement a change in use which is consistent with and/or furthers _the goals of the Comprehensive Plan_ the City' s Economic _Development Strategy. and the APZ-1 Ordinance. as amended. h. The number and types of jobs which the development or redevelopment may expect to generate. i. The amount of the applicant' s capital investment in the development or redevelopment of the property. j. The extent to which the plan of development or redevelopment _ incorporates mixed uses, provides open space and focuses on _transportation and transit accessibility. 7. AUTHORITY FINDINGS AND ACTION. Based upon the recommendation of the Director, the Authority shall either approve or disapprove the award of EDIP funds to the applicant. The Authority may attach conditions to the approval of the award of EDIP funds. In the case of a "revig sfie dbrownfield property, the Authority shall attach the condition that prior to receiving EDIP funds, the recipient of EDIP funds shall provide to the Authority evidence of all permits or approvals as required by state, federal and local regulatory agencies and compliance therewith. The Authority shall not be required to approve the Director's recommendation, but shall exercise its legislative discretion in determining whether, and to what extent, the applicant's proposed development or redevelopment satisfies Part B of this Policy and the Authority' s objective of fostering and stimulating the development of industry in the City, including the retention of NAS Oceana as a master jet base. Provided, however, that prior to approval of the award of EDIP funds to an applicant, the Authority must make the following findings: a. That the animating purpose of the proposed provision of EDIP funds to the applicant is to serve the public purpose of fostering and stimulating economic development in the City of Virginia Beach, including the retention of NAS Oceana as a master- i et base, and that the 9 expenditure of such funds will only incidentally enure to the benefit of private interests, if at all; b. -That the proposed provision of EDIP funds to the applicant is in — furtherance of the purposes for which the Authority was created; c. -That without the stimulus of the EDIP award, it is unlikely that the property would be developed or redeveloped to the extent proposed, or at the current time; d. -That as of the date of approval of the EDIP award, the applicant — had not yet commenced construction of the proposed development or redevelopment; e. -That the property has been designated (or is in an area which has - been designated) as a Strategic Growth Area by the Comprehensive Plan or an Economic Redevelopment Area by ordinance of the City COUTILA f. That the proposed development is consistent with the City' s Comprehensive Plan -and. the City, s Economic Development Strategy; andthe A1'1-I Ordinance, as amended: and g. -That the scope and quality of the plan of development or redevelopment as proposed, will serve to influence redevelopment and additional capital investment in adjacent or nearby properties or, in API -I and Clear Zones, will foster the retention of NAS Oceana as a master jet base. 8. APPROVAL OF THE AWARD OF EDIP FUNDS. Approval by the Authority of the provision of EDIP funds pursuant to this Part B shall be in the form of a resolution which shall include the following information: a.- The name of the owner or developer of the property, and the location and a brief description of the development or redevelopment; b. -The amount of funds that will be provided; 10 c. -The purpose or purposes for which the funds are to be provided; d. -A statement that the criteria set forth in paragraph 4 of this Part B have been met; e. A statement that the findings set forth in paragraph 7 of this Part B have been made by the Authority; and f. Any conditions to the approval of the award of the EDIP funds by the Authority. 9. ALTERNATIVE USES OF PART B FUNDS BY THE AUTHORITY TO PURCHASE AND IMPROVE PROPERTY IN A STRATEGIC GROWTH AREA OR AN ECONOMIC REDEVELOPMENT AREA. The Authority may use EDIP Funds to purchase and improve property within a Strategic Growth Area or an Economic Redevelopment Area. Prior to the approval of the use of EDIP funds for such acquisition, the Authority must find that: a. The property is located within a Strategic Growth Area or an Economic Redevelopment Area; and b. The acquisition and/or improvement of the property by the Authority and its subsequent development or redevelopment will be in conformity with and/or furthers the goals of the City' s Comprehensive Plan, the City' s Economic Development Strategy the APZ- I Ordinance. as amended. and Part B of this Policy. In addition to any property purchased using EDIP funds pursuant to paragraph 9 of this Part B, the Authority may also use EDIP funds for the following improvements to such property: (i) the installation of infrastructure; (ii) the demolition of existing structures; or (iii) the remediation or cleanup of adverse environmental conditions. The Authority may dispose of such property in accordance with state law and may subsequently sell such property to a private party for development or redevelopment. In the event of such sale, the Authority shall attach appropriate conditions to assure that the development or redevelopment is in conformity with and/or furthers the goals of the City' s 11 Comprehensive Plan, the City' s Economic Development Strategy, the APZ-1 Ordinance. as amended, and is in furtherance of the objectives of Part B of this Policy. The proceeds of any property purchased by the Authority and sold pursuant to paragraph 9 of this Part B shall be returned to the EDIP fund account. PART C: GENERAL PROVISIONS APPLICABLE TO BOTH PARTS A AND B. 1. SEPARATE ACCOUNT FOR EDIP FUNDS. EDIP funds shall be maintained by the Authority in a separate account and shall not be commingled with other Authority funds. 2. EDIP FUND EXPENDITURES. All expenditures of EDIP funds shall be in keeping with this Policy and may enure only incidentally to the benefit of private interests. In addition to the use of EDIP funds pursuant to Parts A and B of this Policy, EDIP funds may also be utilized to conduct appraisals, financial and market studies, and architectural and engineering studies directly related to specific economic development initiatives and/or projects being conducted by the Authority on behalf of the City. 3. PAYMENT OF EDIP FUNDS. When EDIP funds are awarded pursuant to either Part A or Part B this Policy, they shall be paid to the authorized business or the owner or developer at such time as the Director shall (i) obtain copies of invoices/receipts from the business, or owner or developer showing the actual costs incurred for the purpose or purposes for which the funds are to be provided; (ii) determine that the development or redevelopment is in conformity with the plan of development presented to the Authority and with all conditions which may have been attached to the approval of the award of the funds by the Authority; and (iii) where required by the Authority, the business, or owner or developer shall execute and deliver to the Authority an EDIP Recapture Agreement in a form acceptable to counsel for the Authority. 4. SPECIFIC PURPOSES FOR THE USE OF EDIP FUNDS. When EDIP funds are awarded to an applicant pursuant to this Policy, such funds shall be used for the purposes set forth in § 2.2-115( C ) of the Code of Virginia. These purposes are as follows: Public and private utility extension or capacity development on and off -site; road, rail, or other transportation access costs beyond the funding capability of existing programs; training costs; site acquisition; grading, drainage, paving, and any other 12 activity required to prepare a site for construction; construction or build -out of publicly owned buildings; or anything else permitted by law. 5. REPORTING. The Authority shall provide City Council semi-annual reports, on or before June 30 and December 31 of each year, outlining, in detail, the manner in which the funds were provided. Such reports shall include, at a minimum, the information required by subsections a, b, and c of paragraph 6 of Part A, subsections a, b, and c of paragraph 8 of Part B, and information demonstrating compliance with the provisions of this Policy and Procedure. 6. AMENDMENTS TO POLICY. The provisions of this Policy shall not be amended without the prior consent and approval of the City Council and the Authority. 7. APPLICATION OF POLICY. This Policy is specifically applicable to the expenditure of EDIP funds. This Policy is not intended to be, nor shall it be deemed to be, applicable to the use of public funds from any source other than the EDIP. 8. EFFECTIVE DATE OF POLICY. This Policy shall become effective immediately upon its approval by the City of Virginia Beach and the City of Virginia Beach Development Authority, which approval shall be evidenced by signature of the Mayor of the City of Virginia Beach and the Chair of the City of Virginia Beach Development Authority acting by, and on behalf of, the City and the Authority, respectively. Mayor, City of Virginia Beach Chair, City of Virginia Beach Development Authority X:\OID\REAL ESTATE\DEVAUTH\EDIP\-r, r-E.FAPR6.H()F-.Fohl)lP 2006 Poligv h Prmedure - BRAC Ame77dlne"LDOC 13 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: CITY OF VIRGINIA BEACH — (a) An Ordinance to Amend Chapter 1 of the Comprehensive Plan (b) An Ordinance to Amend and Reordain Article 18 of the City Zoning Ordinance, Allowing Certain Uses as Principal Uses in Accident Potential Zone 1 Where Allowed as Conditional Uses in the Underlying Zoning Districts. MEETING DATE: March 28, 2006 ■ Background: a) An Ordinance to Amend Chapter 1 of the Comprehensive Plan by Incorporating Principles Guiding the Voluntary Conversion of Nonconforming Uses in Accident Potential Zone 1 to Conforming Uses. b) An Ordinance to Amend and Reordain Article 18 of the City Zoning Ordinance (Appendix A) by Amending Sections 1803 and 1807 and Adding New Sections 1808, 1809, and 1810, Allowing Certain Uses as Principal Uses in Accident Potential Zone 1 Where Allowed as Conditional Uses in the Underlying Zoning 0-2 Office, B-2 Community Business, and 1-1 Light Industrial Districts. ■ Considerations: On December 20, 2005, the City Council adopted a package of ordinances as part of its Base Realignment and Closure Commission (BRAC) plan. Among those ordinances were the APZ-1 Ordinance, which prohibited new development of incompatible uses in APZ-1, and an ordinance adopting the APZ-1 Use and Acquisition Plan. The Plan, which was amended on February 14 to include the Clear Zones, directs the City Manager to bring forward to the City Council innovative methods of rolling back nonconforming development in APZ-1 and the Clear Zones. The City Council has been briefed on the package of proposals to accomplish this goal, one of which is an ordinance providing zoning incentives for the development of conforming uses in APZ-1. On March 14, 2006, the City Council referred to the Planning Commission, for their action by no later than March 27, 2006, two items. The first is an ordinance amending the Comprehensive Plan by adding language that incorporates Principles Guiding the Voluntary Conversion of Nonconforming Uses in Accident Potential Zone 1 to Conforming Uses. The second is an amendment to Article 18 of the City Zoning Ordinance. The amendments would allow certain uses that are conditional uses in the underlying zoning districts to be developed as permitted City of Virginia Beach — APZ-1 Incentives Page 2 of 2 by -right uses in APZ-1 if certain development standards are met. These standards consist of, among other things, enhanced landscaping, signage, building design and building materials intended to ensure that a use developed under the ordinance does not adversely affect surrounding neighborhoods. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 7-0 to recommend approval of these requests. ■ Attachments: Ordinances Comprehensive Plan Amendment Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manage 1. 1, - W—rs-' 1 AN ORDINANCE TO AMEND CHAPTER 1 OF 2 THE COMPREHENSIVE PLAN BY 3 INCORPORATING PRINCIPLES GUIDING 4 THE VOLUNTARY CONVERSION OF 5 NONCONFORMING USES IN ACCIDENT 6 POTENTIAL ZONE 1 TO CONFORMING 7 USES 6 WHEREAS, on March 27, 2006, the Planning Commission held a 7 public hearing concerning the amendment of the Comprehensive 8 Plan (the "Plan") as set forth in the attached Exhibit A, and at 9 the conclusion of such public hearing, recommended that the Plan 10 be amended thereby; 11 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 12 CITY OF VIRGINIA BEACH, VIRGINIA: 13 That the Comprehensive Plan be, and hereby is, amended and 14 reordained in accordance with the attached Exhibit A. 15 16 Adopted by the Council of the City of Virginia Beach, 17 Virginia, on the day of 18 CA-9939 19 OID/ordres/AICUZ/APZ-1 Comp Plan ordin.doc 20 R-2 21 March 22, 2006 22 APPROVED AS TO CONTENT: 23 24 `•�/ 25 26 Plannin apartment 2006. APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office Exhibit A Recommended Amendment to Comprehensive Plan March 28, 2006 Underlined text indicates proposed addition to the following portion of the Comprehensive Plan: Chapter 1 Introduction and General Strategy Page 12 of the Comprehensive Plan Policy Document A strong military presence in the community We want Virginia Beach to continue to be the proud host and home to the military. We support the military and recognize the important contributions they make to our community. We will work to further galvanize the strong partnership that has been a hallmark of our relationship over the past four decades. The military presence in this region is a major positive force that stabilizes our economy, provides numerous government and private sector jobs, results in extensive government expenditures in the private sector, and provides an important element in the identity for the region. The military also helps by contributing to a reliable and well -trained local labor pool that is an effective lure to desirable industry. A consistent and reliable AICUZ Program provides necessary protection to potential development in the community from jet noise and accident potential, and is an important factor in enabling the military to remain here in force and contribute to our local economy. Future military aircraft basing decisions may bring louder and more numerous aircraft accentuating the importance of giving due consideration to this program during all land use decision making. Retention and growth of the military presence in this region will be directly reflected in the economic vitality of Virginia Beach. To ensure that the military remains here in force and continues to contribute to our local economy, areas of the city instrumental to military operations must be strategically planned to consist of land uses that conform to OPNAV Instructions regarding AICUZ. The area designated as Accident Potential Zone 1 is a geographic area of special concern. Already subject to the APZ-1 ordinances, which prohibit by -rig t development not in accordance with the OPNAV Instructions, and to the AICUZ Overlay Ordinance, which prohibits discretionary approval by Council except in accordance with the OPNAV Instructions, this area is also the subject of an intense effort by the City to work with willing property owners to transform nonconforming uses to conforming uses in APZ-1. This effort will be conducted according to three basic principles: 1. The City will encourage the replacement of uses that are nonconforming under Section 1804 Table 2 of the City Zoning Ordinance with those that are conforming Among the techniques to be used are retention of conforming uses where they already exist recruitment of conforming uses from outside the APZ-1 area providing incentives to the private sector to replace nonconforming with conforming uses and location of appropriate conforming_ public uses within the area. 2. The City's involvement will be only with willing property owners. While the City will encourage incentives and facilitate certain choices, it will not force solutions on unwilling participants. 3. The City will encourage the orderly exercise of choice. Unsuitable uses will not be allowed to intrude into areas where people live and work to the detriment of the quality of life in those areas. 4 The replacement of nonconforminguses ses by conforming uses will be achieved in such manner as to protect and enhance the health safety, welfare and quality of life of persons who work or reside in APZ-1 and not adversely affect established residential neighborhoods 1 AN ORDINANCE TO AMEND AND REORDAIN ARTICLE 2 18 OF THE CITY ZONING ORDINANCE (APPENDIX A) 3 BY AMENDING SECTIONS 1803 AND 1807 AND 4 ADDING NEW SECTIONS 1808, 1809 AND 1810 5 ALLOWING CERTAIN USES AS PRINCIPAL USES IN 6 ACCIDENT POTENTIAL ZONE 1 WHERE ALLOWED AS 7 CONDITIONAL USES IN THE UNDERLYING ZONING 8 DISTRICT 9 10 Sections Amended: City Zoning Ordinance 11 Sections 1803 and 1807 12 13 Sections Added: City Zoning Ordinance 14 Sections 1808, 1809 and 1810 15 16 WHEREAS, the City Council desires to encourage the 17 development of uses and structures in Accident Potential Zone 1 18 (APZ-1) that are compatible with flight operations at NAS Oceana 19 and that do not adversely affect established residential 20 neighborhoods; and 21 WHEREAS, the City Council intends to adopt other ordinances 22 and programs (collectively, the "Oceana Land Use Conformity 23 Program") to make funds and incentives available for the 24 purposes of encouraging the voluntary replacement or relocation 25 of nonconforming uses in APZ-1, as determined pursuant to the 26 Table 2 of Section 1804 of the City Zoning Ordinance, so as to 27 facilitate efforts of both the private and public sectors that 28 will roll back encroachment by nonconforming uses in APZ-1; and 29 WHEREAS, the City Council also desires to ensure that the 30 development and redevelopment of conforming uses in APZ-1 is 31 accomplished in a manner consistent with sound planning and land 32 use principles to promote the orderly and compatible co- 33 existence of different uses in APZ-1, to protect and enhance the 34 health, safety, welfare and quality of life of persons who work 35 or reside in APZ-1, and avoid adverse impacts to established 36 residential neighborhoods; and 37 WHEREAS, it is the opinion of the City Council that the 38 adoption of an ordinance creating zoning incentives to encourage 39 the development of conforming uses in appropriate areas within 40 APZ-1 is an effective means of accomplishing the aforesaid 41 objectives and an integral component of the Oceana Land Use 42 Conformity Program; 43 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 44 CITY OF VIRGINIA BEACH, VIRGINIA: 45 That Article 18 of the City Zoning Ordinance is hereby 46 amended and reordained by the amendment of Sections 1803 and 47 1807 and the addition of Sections 1808, 1809 and 1810, 48 pertaining to principal uses allowed in the portions of the 0-2 49 Office District, B-2 Community Business District and I-1 Light 50 Industrial District within Accident Potential Zone 1 (APZ-1), to 51 read as follows: 52 ARTICLE 18. SPECIAL REGULATIONS IN AIR INSTALLATIONS COMPATIBLE 53 USE ZONES (AICUZ) 54 55 A. OVERLAY DISTRICT REGULATIONS. 56 . . . . 2 57 58 59 Sec. 1803. Applicability. 60 (a) Area of applicability. Except as provided in Section 61 1805 and in Part B of this Article, the provisions of this 62 Article shall apply to discretionary development applications 63 for any property located within an Accident Potential Zone (APZ) 64 or Noise Zone 70-75 dB DNL or >75 dB DNL, as shown on the 65 official zoning map, that have not been approved or denied by 66 the City Council as of the date of adoption of this Article. For 67 purposes of this Article, discretionary development applications 68 shall include applications for: 69 1. Rezonings, including conditional zonings; 70 2. Conditional use permits for new uses or 71 structures, or for alterations or enlargements of 72 existing conditional uses where the occupancy 73 load would increase; 74 3. Conversions or enlargements of nonconforming uses 75 or structures, except where the application 76 contemplates the construction of a new building 77 or structure or expansion of an existing use or 78 structure where the total occupancy load would 79 not increase; and 3 80 4. Street closures where the application 81 contemplates the construction of a new building 82 or structure or the expansion of a use or 83 structure where the total occupancy load is 84 increased. 85 86 COMMENT •Ii 88 The amendment is a technical amendment made necessary because Part B of this Article 89 (Sections 1808 — 1811) do not apply to discretionary development applications, but allow certain 90 uses by right under the conditions specified in Section 1811. The amendment makes no substantive 91 changes. 92 93 . . . . 94 95 96 Sec. 1807. Reservation of powers; severability. 97 (a) Nothing in this Article shall be construed to require 98 the City Council to approve any application solely because it 99 meets the requirements of this Article, it being the intention 100 of this Article that the City Council shall be entitled to 101 exercise its authority in such applications to the fullest 102 extent allowed by law. 103 (b) The provisions of this ^��n Article shall be 104 severable, it being the intention of the City Council that in 105 the event one (1) or more of the provisions of this ^gin 106 Article shall be adjudged to be invalid or unenforceable, the 107 remaining provisions of this s..�n Article shall be unaffected 108 by such adjudication. 4 109 COMMENT 110 i l l The amendments to subsection (b) are technical corrections only and do not substantively 112 affect the provisions of this ordinance. 113 114 B. ACCIDENT POTENTIAL ZONE 1 (APZ-1). 115 116 117 Sec. 1808. Purpose and intent. 118 In addition to the purposes set forth in Section 1801, the 119 purpose of this Part shall be to encourage the development of 120 uses and structures in APZ-1 that are compatible with flight 121 operations at NAS Oceana by providing certain incentives for 122 development that will protect and enhance the health, safety, 123 welfare and quality of life of the residents in APZ-1 and not 124 adversely impact established residentialneighborhoods. The 125 provisions of this Part allow certain uses to be located in 126 appropriate zoning districts within APZ-1 without the need for a 127 conditional use permit, so long as the physical and other 128 features of those uses, such as building design and materials, 129 parking lot and site landscaping, landscape screening, site 130 lighting and signage are of a quality demonstrably higher than 131 normal and the hours of operation are strictly limited so as to 132 not interfere with the Quality of life in nearby residential 133 neighborhoods. 134 It is the intention of the City Council that a use be 135 allowed without a conditional use permit pursuant to these 5 136 provisions only: (i) in zoning districts within APZ-1 where the 137 use is appropriate; (ii) when the characteristics of the use are 138 clearly sufficient to prevent any adverse impacts to residential 139 or apartment uses or other property within APZ-1; and (iii) when 140 the design features and other characteristics of the proposed 141 use meet or exceed the standards set forth in Section 1811. 142 COMMENT 143 This section sets forth the purpose and intent of the provisions that follow. The overriding 144 intent of these provisions is to promote the development and redevelopment of uses and structures 145 in APZ-1 that are compatible with both flight operations arising out of NAS Oceana and 146 established residential neighborhoods in APZ-1. The protection of such neighborhoods is given the 147 highest priority in the application of the provisions. 148 149 Sec. 1809. Development incentives and permitted uses in APZ-1. 150 151 (a) The following uses shall be allowed as principal uses 152 on property in Accident Potential Zone 1 (APZ-1) if all design 153 and other features enumerated in Section 1811 are provided: 154 (1) 0-2 Office District: 155 A. Off-street parking in conjunction with 156 permitted uses in an adjoining business 157 district, where such parking: (i) is limited 158 to the zoning lot contiguous with the 159 business district use for which the parking 160 is provided; and (ii) does not extend more I 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 than two hundred (200) feet into the 0-2 (2) B-2 Community Business District: A. Automobile repair garages and small engine repair establishments where all repair work is performed within a building; B. Automobile repair establishments dealing exclusively in minor repairs of the type provided at automobile service stations; C. Automobile service stations; D. Boat sales; E. Commercial parking garages and storage garages which include car wash, car rental or car detailing services when wholly enclosed within a parking structure and accessory thereto; F. Commercial indoor recreation facilities; G. Fiber -optics transmission facilities; H. Mini -warehouses; I. Mobile home sales; J. Motor vehicle sales on lots larger than 20,000 square feet; 7 183 K. Public utility storage or maintenance 184 installations. 185 (3) I-1 Industrial District: 186 A. Automobile service stations; 187 B. Automobile repair garages; 188 C. Fiber -optics transmission facilities; 189 D. Firewood preparation facilities; 190 E. Mobile home sales. 191 (b) Nothing in this section shall prohibit the City 192 Council from granting a conditional use permit for any of the 193 uses set forth herein upon proper application therefor. 194 COMMENT 195 The section sets forth the uses that are allowed as principal (by -right) uses if they meet the 196 criteria set forth in Section 1810. All of the uses are allowed as conditional uses in their respective 197 underlying zoning districts . 198 199 200 Sec. 1810 Design, etc., features; notice. 201 (a) Any of the uses enumerated in Section 1809 shall be 202 allowed as a principal use in the zoning districts designated 203 therein if, in addition to all other applicable requirements of 204 this ordinance, the Planning Director finds that the utilization 205 of the followinq features is clearly sufficient to prevent an 206 adverse impacts to residential or apartment uses or other 207 property within APZ-1: 208 (1) the use conforms to all general and specific 209 conditions applicable to such use under Part C of 210 Article 2 of this ordinance; 211 (2) enhanced site and parking lot landscaping 212 exceeding applicable requirements, both 213 qualitatively and quantitatively, is provided; 214 (3) exterior lighting is of low intensity and 215 residential in character and shielded in such 216 manner as to direct light and glare away from 217 residential areas; 218 (4) hours of operation are limited so as to avoid 219 disturbances to residential neighborhoods; 220 (5) signage is either nonilluminated or, where 221 freestanding, is externally illuminated from 222 ground level, no neon lighting visible from any 223 adjoining property is used, and freestanding 224 signs are located as far from residential or 225 apartment districts as is practicable; 226 (6) storage of materials, waste containers, or 227 merchandise, except for boats, motor vehicles, 228 motor homes or similar items for sale, is within 229 the interior of the building or is screened so as A 230 to not be visible from streets or adjoinin 231 properties; 232 (7) where adjacent to residential or apartment 233 districts, enhanced landscape buffering exceeding 234 applicable requirements, both qualitatively and 235 quantitatively, is provided; and 236 (8) building design and exterior building materials 237 substantially conform to such of the "Design 238 Guidelines for Primary Residential Area" set 239 forth in Chapter 7 of the Comprehensive Plan as 240 are appropriate for the use. 241 (b) Upon receipt of an application pursuant to this Part, 242 the Planning Director shall cause notice thereof to be sent by 243 certified mail to the record owner of each lot adjacent to, or 244 directly across the street from, the property that is the 245 subject of the application, which notice shall invite comments 246 concerning the application. The Planning Director shall give 247 careful consideration to the comments received in determining 248 whether to approve or disapprove the application, and shall, no 249 less than fifteen (15) nor more than 30 days after the date of 250 mailing of the required notices, either approve or disapprove 251 the application on the basis of the criteria set forth in this 252 Part and the comments received. Such decision shall be in 10 253 254 255 256 257 258 259 260 261 262 263 264 265 266 writing and mailed or delivered to the applicant and all persons who provided comments. COMMENT The section sets forth the criteria that are required in order for a use to be allowed without a conditional use permit. The criteria are intended to ensure that development permitted under the provisions of Section 1809 is of high quality and that it will not have any adverse effects upon residential or other property located in APZ-1. The section also contains a requirement that all owners of property adjacent to, or directly across the street from, the subject property be notified of an application and sets forth the procedure by which the Planning Director approves or disapproves an application. Adopted by the City Council of the City of Virginia Beach, Virginia on the day of APPROVED AS TO CONTENT: 3 ,y3.0 6 Planning Department CA-9930 OID\ordres\APZ-1 R-11 March 23, 2006 2006. APPROVED AS TO LEGAL SUFFICIENCY: Avil City Attorney's Office incentives ordin.doc 11 The City Clerk has been advised by Stephen White, PhD, Planning Evaluation Coordinator, that verbatims for these Ordinances were not available at the time of print and will be provided to Council prior to consideration. ckk rr� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Ordinance to Amend and Reordain the Airport Noise Attenuation and Safety Ordinance (Appendix 1) by Adding a New Section 14, Pertaining to Avigation Easements on Property Within Air Installation Compatible Use Zones MEETING DATE: March 28, 2006 ■ Background: One of the components of the August 2005 Base Realignment and Closure (BRAC) Commission was a condition that the City codify the recommendations of the Hampton Roads Final Joint Land Use Study (JLUS). The JLUS contained a recommendation that the City adopt an avigation easement program for properties in AICUZ areas. ■ Considerations: The proposed ordinance adds a new Section 14 to the Airport Noise Attenuation and Safety Ordinance (City Code Appendix 1) that encourages, but does not require, the owners of property in any AICUZ Noise Zone of 65 dB DNL or greater to provide avigation easements to the Navy as part of the development process. The easements acknowledge that the Navy has the right to conduct overflights in the airspace above the property and waive the right to sue based upon jet noise from overflights ■ Public Information: No special form of advertisement or public notice is necessary for this ordinance. ■ Alternatives: Adoption of this ordinance is a necessary part of the City's BRAC compliance plan. ■ Recommendations: Adoption of ordinance ■ Attachments: Proposed ordinance Recommended Action: Adoption of ordinance Submitting Department/Agency: Planning Department City Manager Ic �`� 1 AN ORDINANCE TO AMEND AND REORDAIN THE 2 AIRPORT NOISE ATTENUATION AND SAFETY 3 ORDINANCE (APPENDIX I) BY ADDING A NEW 4 SECTION 14, PERTAINING TO AVIGATION 5 EASEMENTS ON PROPERTY WITHIN AIR 6 INSTALLATION COMPATIBLE USE ZONES 7 8 Section Added: Section 14 9 10 11 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 12 BEACH, VIRGINIA: 13 That the Airport Noise Attenuation and Safety Ordinance of 14 the City of Virginia Beach (City Code Appendix I) is hereby 15 amended and reordained by the addition of a new Section 14 16 thereto, pertaining to avigation easements on property within 17 Air Installation Compatible Use Zones, to read as follows: f 19 APPENDIX I. AIRPORT NOISE ATTENUATION AND SAFETY 20 ORDINANCE 21 22 . . . . 23 24 Sec. 14. Avigation easements. 25 Any owner of property located wholly or partially in a 26 Noise Zone of 65 dB DNL or greater is encouraged to provide the 27 United States Navy with an avigation easement prior to 28 development of the property, either as a proffer made as part of 29 a conditional zoning application or as part of the subdivision 30 review process. Such avigation easement shall acknowledge the 31 right of the United States Navy to conduct military operations 32 in the airspace above the property and shall include a covenant 33 not to bring legal action for damages or other relief as a 34 result of noise levels from overflights. The avigation easement 35 shall be in a form recommended by the Planning Director and 36 shall be approved by the City Attorney, 37 COMMENT 38 One of the recommendations of the Hampton Roads Joint Land Use Study (JLUS) was that 39 the City of Virginia Beach establish an avigation easement program. Because the 2005 BRAC 40 decision contained a condition that the recommendations of the JLUS be codified, the proposed 41 ordinance is being brought forward for consideration by the City Council as a necessary 42 housekeeping measure. 43 44 The proposed amendment to the Airport Noise Attenuation and Safety Ordinance 45 encourages, but does not require, the owners of property in any AICUZ Noise Zone of 65 dB DNL 46 or greater to provide such easements to the Navy as part of the development process. The 47 easements acknowledge that the Navy has the right to conduct overflights in the airspace above the 48 property and waive the right to sue the Navy for jet noise. 49 50 51 52 Adopted by the Council of the City of Virginia Beach, 53 Virginia, on the day of , 2006. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ", )4M r 3 •z t -o t ,f,� 0 Plannin Department City Attorney's Office CA-9964 OID\Land Use\ordres\AICUZ\avigationordin.doc R-1 March 21, 2006 0 r.; CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Ordinance Adopting the City's Plan for Compliance with the Base Realignment and Closure Commission's Decision Regarding Naval Air Station Oceana and Related Ordinances MEETING DATE: March 28, 2006 ■ Background: On December 20, 2005, the City Council adopted an ordinance setting forth the City's plan for compliance with the August 2005 Base Realignment and Closure Commission's (BRAC) decision regarding NAS Oceana. One of the provisions of the ordinance was that the City Council reserved the right to repeal, amend or otherwise modify the provisions of the ordinance in the event the United States Navy did not approve the City's plan as a component of the Joint Land Use Study or an AICUZ Plan that includes the elements of the City's compliance plan. ■ Considerations: The proposed ordinance deletes the language reserving the right to repeal, amend or otherwise modify the City's BRAC compliance plan and replaces it with language requesting the Navy's approval of the plan. The remaining portions of the December 20, 2005 ordinance are unchanged. ■ Public Information: No special form of advertisement or public notice is required for the adoption of the ordinance. ■ Recommendations: Adoption of ordinance ■ Attachments: Ordinance Recommended Action: Adoption of ordinance Submitting Department/Agency: City Attorney City Manager: I, � vial 1 AN ORDINANCE ADOPTING THE CITY'S PLAN FOR 2 COMPLIANCE WITH THE BASE REALIGNMENT AND 3 CLOSURE COMMISSION'S DECISION REGARDING 4 NAVAL AIR STATION OCEANA AND RELATED 5 ORDINANCES; REQUESTING THE MEMBERS OF THE 6 CITY'S GENERAL ASSEMBLY DELEGATION TO 7 SPONSOR AND SUPPORT LEGISLATION NECESSARY 8 TO IMPLEMENT SUCH PLAN; AND AUTHORIZING 9 THE ACQUISITION OF INTERESTS IN CERTAIN 10 PROPERTY LOCATED IN ACCIDENT POTENTIAL 11 ZONE 1 AND THE INTERFACILITY TRAFFIC AREA 12 13 14 WHEREAS, in January, 2004, the City of Virginia Beach, 15 along with the cities of Norfolk and Chesapeake, joined with the 16 Navy and the Hampton Roads Planning District Commission in 17 participating in Joint Land Use Study (JLUS), the purpose of 18 which was to develop recommendations regarding land use policy 19 to reduce the impacts associated with military air operations; 20 and 21 WHEREAS, on May 10, 2005, the City Council adopted a 22 resolution accepting the Final Hampton Roads Joint Land Use 23 Study and directing the city staff to take appropriate measures 24 to implement the recommendations thereof; and 25 WHEREAS, the recommendations of the JLUS included, among 26 other things: 27 (1) The enactment of enhanced noise attenuation 28 standards and real property disclosure 29 requirements, both of which recommendations have 30 been fully implemented; 31 (2) The establishment of an Air Installations 32 Compatible Use Zone (AICUZ) Overlay District 33 based on the 1999 AICUZ map to protect public 34 health, safety & welfare and prevent encroachment 35 that would degrade military operations at Navy 36 airfields; 37 (3) The adoption of a program to purchase certain 38 properties located within the Interfacility 39 Traffic Area; and 40 (4) The amendment of the Comprehensive Plan to 41 reflect AICUZ-related concerns; 42 and 43 WHEREAS, in February 2005, the Navy and the City, though a 44 JLUS Subcommittee, jointly developed a Statement of 45 Understanding including, among others, acknowledgments that: 46 (1) The establishment of a first-class resort at the 47 oceanfront is a strategic priority for the City 48 of Virginia Beach and that, in order to 49 accomplish that goal, the City Council will 50 consider adoption of Comprehensive Plan and City 51 Zoning Ordinance amendments that contemplate a 52 reasonable increase in the number of existing 53 residential units in the oceanfront area to a 54 number sufficient to support quality year-round 2 55 retail development. This number is anticipated 56 to be less than the aggregate additional number 57 of units allowed by current oceanfront area 58 zoning; and 59 (2) The Navy is deeply concerned about the impact of 60 aircraft operations on the proposed development 61 of the Resort Area, and that the City will 62 address these concerns to the greatest extent 63 possible by inviting the Navy, as well as other 64 stakeholders, to participate in the process of 65 drafting the Oceanfront Resort Area Concept Plan. 66 The City recognizes that, in order to meet the 67 objectives of both the City and the Navy, the 68 applicable zoning regulations must be totally 69 restructured. Among the City's objectives is an 70 increase in the number of residential units 71 currently existing, but substantially less than 72 currently allowed; and 73 WHEREAS, the 2005 Oceanfront Resort Area Plan and the 74 ordinances implementing the Plan include provisions that are 75 consistent with the "Map Showing U.S. Navy Position Regarding 76 Airport Impact Planning Areas, January 2005" and are intended to 77 accomplish the goals set forth in the Statement of Understanding 78 while addressing the concerns expressed by the Navy; K 79 and 80 WHEREAS, in August 2005, the Base Realignment and Closure 81 (BRAC) Commission added to the list of installations to be 82 closed or realigned the recommendation to realign 83 NAS Oceana by relocating the Atlantic Fleet's East Coast Master 84 Jet Base to Cecil Field in Jacksonville, Florida if, among other 85 things, the City of Virginia Beach fails to enact and enforce 86 legislation to prevent further encroachment of NAS Oceana by the 87 end of March 2006 by: 88 (1) Adopting zoning ordinances that require the 89 governing bodies to follow Air Installations 90 Compatibility Use Zone (AICUZ) guidelines in 91 deciding discretionary development applications 92 for property in Noise Level 70 dB Day Night 93 Average Noise Level (DNL) or greater; 94 (2) Establishing a program to condemn and purchase 95 all the "incompatible use property," as defined 96 in the December 2002 OPNAV Instruction 10010.36B, 97 located within Accident Potential Zone 1 (APZ-1) 98 and to expend at least $15 Million annually in 99 furtherance of such program; 100 (3) Evaluating undeveloped properties in Noise Zones 101 of 70 dB DNL or greater to determine their 102 suitability for rezoning to classifications not F 103 allowing incompatible uses under AICUZ 104 guidelines; and 105 (4) Establishing a program for the purchase of 106 development rights to property in the 107 Interfacility Traffic Area between NAS Oceana and 108 NALF Fentress; 109 and 110 WHEREAS, the BRAC Commission's Final and Approved 111 Recommendations concerning NAS Oceana have since become law (the 112 "BRAC Law"); and 113 WHEREAS, the BRAC Law contemplates that the Inspector 114 General of the Department of Defense (the "Inspector General") 115 will determine, by June 1, 2006 whether the City has complied 116 with the conditions of the BRAC Law; and 117 WHEREAS, in response to the BRAC Commission's decision, 118 the City Council, as well as the Planning Commission, have 119 provided numerous opportunities for interested parties to state 120 their views on potential City action to be taken in light of the 121 BRAC Commission's decision, through public hearings and other 122 public forums; and 123 WHEREAS, on October 11, 2005, the City Council established 124 the Virginia Beach Citizen BRAG Committee (BRAG Committee), 125 comprised of stakeholders and other interested persons, and 126 charged it with the duty to ensure consideration of all relevant 5 127 information and factors regarding the City's response to the 128 BRAC Law. The BRAC Committee held several public meetings for 129 the purpose of obtaining public comment on the City's response 130 to the BRAC Commission's decision. Each such public meetings 131 were well -publicized beforehand and well -attended by interested 132 persons; and 133 WHEREAS, the City Council commissioned a study of the costs 134 of complying with the conditions of the BRAC Law and the 135 potential economic effects of the realignment of NAS Oceana, and 136 the City Council has given mature consideration to the study in 137 determining the City's course of action; and 138_ WHEREAS, the City Council anticipates that the Commonwealth 139 of Virginia will share equally with the City up to $15 Million 140 per year in total costs for property acquisition in Accident 141 Potential Zone 1 (APZ-1) and the Interfacility Traffic Area, as 142 described in the APZ-1 Use and Acquisition Plan dated December 143 14, 2005 and the Interfacility Traffic Area Property Acquisition 144 Plan dated December 15, 2005, respectively; and 145 WHEREAS, the Virginia Beach Planning Commission has given 146 careful consideration to the zoning ordinances comprising a 147 portion of the proposed plan and has recommended approval of 148 such ordinances; and 2 149 WHEREAS, the City Council has given extensive consideration 150 to all potentially appropriate means of responding to the BRAC 151 Commission's decision; 152 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 153 OF VIRGINIA BEACH, VIRGINIA: 154 SECTION 1. Findings. 155 The City Council hereby finds that: 156 1. Retaining NAS Oceana as the East Coast Master Jet Base 157 is vital to preserving the economic vitality of the City of 158 Virginia Beach; 159 2. The Navy's presence and the naval personnel stationed 160 at NAS Oceana, their spouses and children, as well as Navy 161 retirees who formerly served- at NAS Oceana, are a source of 162 pride for the City and a part of the fabric of the City of 163 Virginia Beach; 164 3. The proposed plan for compliance with the conditions 165 of the BRAG Law ("BRAC Compliance Plan" or "Plan") conforms to 166 all such conditions, in that the Plan: 167 (a) Ensures that the City Council will, in a manner 168 consistent with the requirements of the 169 Constitutions of the United States and 170 Commonwealth of Virginia follow Air Installations 171 Compatibility Use Zone (AICUZ) guidelines in 172 deciding discretionary development applications 7 173 for property in Noise Level 70 dB Day Night 174 Average Noise Level (DNL) or greater; 175 (b) Establishes a program for the acquisition of 176 properties in the Interfacility Traffic Area 177 between NAS Oceana and NALF Fentress; and 178 (c) Prohibits future development, and rolls back 179 existing development, of "incompatible uses," as 180 that term is defined in the December 2002 OPNAV 181 Instruction 10010.36B, located within Accident 182 Potential Zone 1 (APZ-1); 183 4. The Plan also includes provisions contemplated by, and 184 consistent with, the Joint Land Use Study and the Statement of 185 Understanding pertaining to restrictions on development in the 186 Interfacility Traffic Area and the Resort Area; 187 5. The Plan represents careful balancing of the rights 188 and needs of the citizens and businesses of the City of Virginia 189 Beach with the need for consistency with the conditions of the 190 BRAC Law; 191 6. The City has commenced, and is continuing to perform, 192 an evaluation of undeveloped property in areas within Noise 193 Zones of 70 dB DNL or greater to determine their suitability for 194 rezoning to classifications not allowing incompatible uses under 195 AICUZ guidelines; 196 7. The City and the Navy have worked together closely to 197 address the Navy's concerns, and the elements of the City's Plan 198 directly address those concerns; 199 8. Some of the conditions of the BRAC Law can be met by 200 utilizing land use tools, such as zoning ordinances, not 201 mentioned in or contemplated by the BRAC Law. 202 SECTION 2. ADOPTION OF 203 The following ordinances, true copies of which are hereto 204 attached and made a part hereof, are hereby adopted: 205 1. An Ordinance to Amend and Reordain the City Zoning 206 Ordinance (Appendix A) by Repealing Section 221.1, 207 Pertaining to Specific Standards for Conditional Uses 208 Within Certain Air Installations Compatible Use Zones 209 (AICUZ) and by Adding a New Article 18 Thereto, 210 Consisting of Sections 1800 through 1807, Establishing 211 the Policy of the City Council Pertaining to 212 Discretionary Development Applications and Sound 213 Attenuation Requirements in Buildings and Structures 214 in Certain Air Installations Compatible Use Zones 215 (AICUZ)[AICUZ Overlay Ordinance]; 216 217 2. An Ordinance to Amend the Comprehensive Plan by the 218 Incorporation of the NAS Oceana - NALF Fentress 219 Interfacility Traffic Area Map; 220 221 3. An Ordinance to Amend the Comprehensive Plan by 222 Revising Chapters 1 (Introduction and General 223 Strategy), 2 (Strategic Growth Areas), 3 (Primary 224 Residential Area), 5 (Princess Anne/Transition Area), 225 9 (Natural Resources and Environmental Quality Plan), 226 the Appendix of the Policy Document and the Princess 227 Anne Corridor Plan by Incorporating Provisions 228 Pertaining to Air Installation Compatible Use Zones 229 (AICUZ), the Hampton Roads Joint Land Use Study and 230 the Air Installations Compatible Use Zones (AICUZ) 231 Overlay Ordinance [Comprehensive Plan amendments 232 incorporating AICUZ considerations]; 233 01 234 4. An Ordinance to Amend the Official Zoning Map by the 235 Designation and Incorporation of the NAS Oceana - NALF 236 Fentress Interfacility Traffic Area; 237 238 5. An Ordinance to Amend and Reordain the Airport Noise 239 Attenuation and Safety Ordinance (City Code Appendix 240 I), Pertaining to Sound Attenuation Requirements in 241 Certain Buildings and Structures and Required 242 Disclosures in Residential Real Estate Transactions 243 244 6. An Ordinance to Amend Sections 401, 501, 601, 801, 245 901, 1001 and 1110 of the City Zoning Ordinance by 246 Prohibiting Uses Designated as Incompatible in the 247 Portions of Agricultural, Residential, Apartment, 248 Office, Business, Industrial and PD-H1 Zoning 249 Districts Within Accident Potential Zone 1 (APZ-1) 250 [APZ-1 Ordinance]; 251 252 7. An Ordinance Amending Article 15 of the City Zoning 253 Ordinance, Pertaining to Use Regulations, Dimensional 254 Requirements, Vehicular Parking Requirements, Density 255 Restrictions and Design Incentives in the RT-1, RT-2 256 And RT-3 Resort Tourist Districts and the Laskin Road 257 Gateway District [Resort Tourist District amendments] 258 259 8. An Ordinance Revising Density Restrictions in the RT-3 260 (LRG) Laskin Road Gateway Overlay District; 261 262 9. An Ordinance Establishing the Old Beach Overlay 263 District; 264 265 10. An Ordinance to Amend the Official Zoning Map by the 266 Addition of the Old Beach Overlay District; 267 268 11. An Ordinance Establishing Use Regulations, Dimensional 269 Requirements, Design Incentives, and the Old Beach 270 Design Review Committee for the Old Beach (OB) Overlay 271 District; 272 273 12. An Ordinance Amending the City Zoning Ordinance 274 Pertaining to the Definitions of the Terms "Ancillary 275 Single -Family Dwelling Unit," "Yard," "Interior Yard" 276 and "Mixed Use"; 277 278 13. An Ordinance Allowing Ancillary Single -Family 279 Dwellings On The Same Lot as a Separate Single -Family 280 Dwelling; 10 281 282 14. An Ordinance to Amend and Reordain the Site Plan 283 Ordinance (Appendix C) to Require Site Plan Review of 284 Ancillary Single -Family Dwelling Units and Separate 285 Single -Family Dwelling Units on the Same Lot; 286 287 15. An Ordinance to Amend the Comprehensive Plan by 288 Incorporating the Resort Area Design Guidelines; 289 290 16. An Ordinance to Amend the Comprehensive Plan by the 291 Incorporation of the Old Beach Design Guidelines; 292 293 17. An Ordinance to Amend the Comprehensive Plan by 294 Repealing the Oceanfront Resort Area Concept Plan 295 (1994) and Incorporating the Oceanfront Resort Area 296 Plan (November 2005); and 297 298 18. An Ordinance to Amend Chapter 4 of the Comprehensive 299 Plan, Pertaining to the Oceanfront Resort Area Concept 300 Plan. 301 302 Section 3. Adoption of property acquisition plans. 303 The following property acquisition plans, true copies of 304 which are hereto attached and made a part hereof, are hereby 305 approved and adopted: 306 (a) APZ-1 Use and Acquisition Plan, dated December 14, 2005; 307 and 308 (b) Interfacility Traffic Area Property Acquisition Plan 309 dated December 15, 2005. 310 Section 4. Proposed legislation. 311 (a) The members of the City's General Assembly Delegation 312 are hereby respectfully requested to sponsor and support 313 legislation during the 2006 General Assembly session that will 314 authorize the City of Virginia Beach, under the limited 315 circumstances set forth in the APZ-1 Use and Acquisition Plan, 11 316 to acquire properties by the exercise of eminent domain or 317 otherwise effectuate the Plan; and 318 (b) The City Manager and City Attorney are hereby 319 authorized and directed to cooperate to the fullest extent with 320 the members of the City's General Assembly Delegation in 321 connection with the legislative process for the enactment of 322 such legislation. 323 Section S. Amendments to plan. 324 The City Council recognizes that the execution of the BRAC 325 Compliance Plan involves complex and difficult issues, and that 326 not every potential circumstance could have been foreseen during 327 the formulation of the Plan. It is the expectation of the City 328 Council that amendments refining the Plan and addressing 329 unforeseen or newly -arisen circumstances will be brought forward 330 for its consideration, and to that end, the City Manager and 331 City Attorney are hereby authorized and directed to bring 332 forward, for the City Council's consideration, proposed 333 amendments to the Plan whenever the same are necessary or 334 appropriate to accomplish the purposes of the Plan. 335 Section 6. Execution. 336 The City Manager and City Attorney are hereby authorized 337 and directed to take all necessary or appropriate actions to 338 execute the provisions of the Plan. 339 12 340 Section 7. Property acquisition. 341 The City Manager is hereby authorized and directed, on 342 behalf of the City, to acquire property in Accident Potential 343 Zone 1 and in the Interfacility Traffic Area in accordance with 344 the APZ-1 Use and Acquisition Plan and Interfacility Traffic 345 Area Acquisition Plan, respectively, to the extent funds are 346 available, and to include funding sufficient to acquire such 347 properties in the proposed budgets for forthcoming years. 348 BE IT FURTHER ORDAINED BY THE COUNCIL OF THE CITY OF 349 VIRGINIA BEACH, VIRGINIA: 350 In adepting— his erdinanee, the The City Council 351 _c=t m later requests that the elements of the City's Plan 352 consisting of the Resort Area -related ordinances, the AICUZ 353 Overlay Ordinance, the APZ-1 Ordinance, the APZ-1 Use and 354 Acquisition Plan and the Interfacility Traffic Area Acquisition 355 Plan will be approved by the United States Navy as a component 356 of the Joint Land Use Study or an AICUZ Plan that includes such 357 elements and the Ge•--e;' hereby —rese L-ves the right te 358 , 359 erdirzanee—in the --event —stieh agpreval is netgiven. 360 T7i� E—TT F$RT4iH eRRA3NHE) Bad—'' TizB (3eeUNC-1-�^�cTITY E ^er- 361 VIRGINIA BSA/"Ill, VIRGINI 3 62 That the Gity Clerki-s—eaeby dirreeted t= transmit a cepy 363 364 Delegatieft. 13 365 Adopted by the City Council of the City of Virginia Beach, 366 Virginia, this day of APPROVED AS TO CONTENT: 2006. APPROVED AS TO LEGAL SUFFICIENCY: vi" f� City Attorney's Office CA-9969 OID\Land Use\ordres\BRAC Plan 3-28 Ordin.doc March 23, 2006 R-4 14 ro ig, <u= sSi CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Appropriating $15,000,000 to Comply with BRAC Requirements MEETING DATE: March 28, 2006 ■ Background: On December 20, 2005, City Council adopted a "Plan for Compliance with the BRAC Commission's Decision Regarding NAS Oceana." In accordance with this plan, the City Council intends to adopt other ordinances and programs (collectively, the "Oceans Land Use Conformity Program") to make funds and incentives available for the purposes of encouraging the voluntary replacement or relocation of nonconforming uses in Accident Potential Zone 1 (APZ-1), as determined pursuant to the Department of the Navy's OPNAV Instruction 11010.3613 and Section 1804 of the City Zoning Ordinance, so as to facilitate efforts of both the private and public sectors that will roll back encroachment by nonconforming uses in APZ-1. The Oceana Land Use Conformity Program will encourage the development of uses and structures in APZ-1 that are compatible with both flight operations arising out of NAS Oceana and established residential neighborhoods. The Oceana Land Use Conformity Program will ensure that the development and redevelopment of conforming uses in APZ-1 occurs only where and when it can be accomplished in a manner that is clearly not detrimental to established residential neighborhoods within APZ-1 and in a manner consistent with sound planning and land use principles to promote the orderly and compatible co -existence of different uses in APZ-1. ■ Considerations: This ordinance appropriates $15,000,000 to the operating budget for the purpose of acquiring incompatible use properties within APZ-1. This ordinance will take effect on July 1, 2006, following the adoption of the FY 2006-07 budget. ■ Public Information: Information will be disseminated through the regular Council agenda notification process. ■ Recommendations: Approval. ■ Attachments: Ordinance Recommended Action: Approval Grp Submitting Department/Agency: Department of Management Servi sC'` City Manager.�36 L Vol% 1 AN ORDINANCE APPROPRIATING 2 $15,000,000 TO COMPLY WITH BRAC 3 REQUIREMENTS 4 5 WHEREAS, on December 20, 2005, the City Council 6 adopted Ordinance No. 2914 K, entitled "An Ordinance 7 Adopting the City's Plan for Compliance with the Base 8 Realignment and Closure Commission's Decision Regarding 9 Naval Air Station Oceana" as well as other related 10 ordinances, including the adoption of the APZ-1/Clear Zone 11 Use and Acquisition Plan and the Interfacility Traffic Area 12 Property Acquisition Plan; and 13 WHEREAS, in adopting Ordinance No. 2914 K and the APZ- 14 1/Clear Zone Use and Acquisition Plan and the Interfacility 15 Traffic Area Property Acquisition Plan, the City Council 16 signaled their intention to comply with the Base 17 Realignment and Closure (BRAG) Commission's mandate to 18 establish a program to "condemn and purchase" all the 19 "incompatible use property," as defined in the December 20 2002 OPNAV Instruction 10010.3613, located within Accident 21 Potential Zone 1 (APZ-1) and to expend at least $15 Million 22 annually in furtherance of such program; and 23 WHEREAS, the City Council anticipates that the 24 Commonwealth of Virginia will share equally with the City 25 in meeting the annual $15 Million per year expenditure 26 requirements; and 27 WHEREAS, on May 9, 2006, the City Council will adopt a 28 budget for fiscal year 2006-07; and 29 WHEREAS, to comply with the BRAG Commission's mandate, 30 the City Council has elected to appropriate $15,000,000 in 31 advance of approval of the fiscal year 2006-07 budget; and 32 WHEREAS, this appropriation will merge into and become 33 a part of the fiscal year 2006-07 budget and will be 34 transferred into Capital Project #9-060, Oceana and 35 Interfacility Traffic Area Conformity & Acquisition, on May 36 9, 2006. 37 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF 38 THE CITY OF VIRGINIA BEACH, VIRGINIA: 39 1. That $15,000,000 is hereby appropriated to the 40 operating budget for the purpose of funding the City's APZ- 41 1 program thus making funds available to administer and 42 implement both the APZ-1 Use and Acquisition Plan and the 43 Oceana Land Use Conformity Plan, with estimated local 44 revenue increased by $7.5 million and estimated state 45 revenue increased by $7.5 million accordingly. 46 2. That this ordinance will take effect on July 1, 47 2006. 48 Adopted by the Council of the City of Virginia Beach, 49 Virginia, on the day of APPROVED AS TO CONTENT: -,a"a. ��� Management Services CA-9962 PA/GG/ORDRES/BRAG $7.5 million ORD R-3 March 16, 2006 2006. APPROVED AS TO -LEGAL SUFFICIENCY: City Attorney' Office PEMBROKE OFFICE PARK - BUILDING ONE 281 INDEPENDENCE BOULEVARD FIFTH FLOOR VIRGINIA BEACH, VIRGINIA 23462-2989 TELEPHONE: 757-499-8971 FAcsIMI LE: 757-456-5445 Via Hand Deliverc� 1 * i!' 11!' iIL a0 IN10 FA:I ATTORNEYS AND COUNSELORS AT LAW January 24, 2006 Ruth Hodges Smith, City Clerk Office of the City Clerk City Hall Building # 1, Room 281 Municipal Center Virginia Beach, Virginia 23456 James K. Spore, City Manager Office of the City Manager City Hall Building # 1, Room 234 Municipal Center Virginia Beach, Virginia 23456 JON M. AHERN R. EDWARD BOURDON, JR. JAMES T. CROMWELL L. STEVEN EMMERT DAVID S. HOLLAND KIRK B. LEVY O. JACKSON MOORE. JR. JENNIFER D. ORAM-SMITH HOWARD R. SYKES, JR. Re: Application of Alcar, L.L.C. for Change of Zoning District Classification from AG-1/AG-2 Agricultural District to Conditional R-10 Residential District and Conditional Use Permit for Open Space, 112.3 acres, North side of Nimmo Parkway (unimproved) 910 feet west of Rocking Chair Lane Dear Ms. Smith and Mr. Spore: I am writing to request that the above referenced rezoning applications which were last deferred by the Virginia Beach City Council on February 24, 2004 be scheduled for a vote by the Virginia Beach City Council at its public hearing on Tuesday, February 28, 2006. This applicant's proposal was recommended favorably by the Planning Department and was recommended for approval by a unanimous Virginia Beach Planning Commission on September 10, 2003. The application was subsequently deferred by City Council on October 28, 2003, December 9, 2003 and February 24, 2004. The deferrals were a consequence of the "Interim Guidelines" which were adopted to facilitate the Joint Land Use Study which has now been completed and all ordinances relative to the Joint Land Use Study have now been adopted by City Council. As a consequence, with Council having comprehensively addressed the JLUS issue on December 20, 2005, this favorably recommended SYKES. $OURDON. AIIEl2N &LEVY. P.C. Ruth Hodges Smith, City Clerk James K. Spore, City Manager January 24, 2006 Page 2 rezoning application should now be scheduled for action by the Virginia Beach City Council on February 28, 2006. Please confirm with my office the scheduling of this application. With best regards, I am Very truly yours, 6� ' - 7i R. Edward Bourdon, Jr. REBjr/arhm cc: Robert J. Scott, Director, Department of Planning Leslie L. Lilley, City Attorney Councilman Jim Reeve Alan S. Resh, Alcar, L.L.C. ConditionalRezone/Alcar/NimmosQuay/ Smith 1 Item i- 0.10. PLANNING ITEM # 52430 Attorney Eddie Bourdon, Pembroke One Building, 5`' Floor, Phone: 499-8971 represented the applicant, and noted the attendance of Joe Bushey of Clark Nexsen, 'Douglas Talbot and Alan S. Resh, re the application for infill development (Nimmo's Quay) of no more than 132 high end single-family homes located on 112 acres. of land, 73 of which are developable land. The proposed density is no more than 1.8 units per developable acre. This development is surrounded by 6 existing residential neighborhoods. The applicant has agreed to construct two (2) lanes of Nimmo Parkway from the Fire station all the way to this property at a cost of approximately $900, 000. Sewer and water, at no cost to the city, will be provided. Douglas Talbot, advised the areas of the wetlands and floodplains have been designed. Under thirty (30) homes are located in the 70 to 75 decibel area. Copies of a map indicating the decibel areas were distributed to City Council. The following registered in OPPOSITION: Captain Tom Keeley, Commanding Officer - Naval Air Station Oceana, 1750 Tomcat Boulevard, Phone 433-3158, Phone: 433-2922, advised this development lies within 3 miles of Oceana and falls underneath the AICUZ map adopted by the Navy and the City. The issue is encroachment and Oceana is the number one encroached upon installation in the Department of Defense. Single event noise will be louder in this neighborhood which lies directly beneath the departure corridor to major Runway 23. Rear Admiral S.A. Turcotte, U.S. Navy, Commander - Navy Region Mid -Atlantic, advised this application may appear as a 'pebble ", but if one considers the impact of several pebbles (which are under consideration), it becomes a bolder. All of these will be examined under the Joint Land Use Study, what areas should be or should not be developed. Upon motion by Councilman Reeve, seconded by Councilman Flood, City Council DEFERRED INDEFINITELYto allow completion of the JointLand Use Study (JLUS) applications Ordinances upon application ofALCAR, L.L.C. for a Conditional Change of Zoning and Conditional Use Permit: A ND, ORDINANCE UPONAPPLICATION OF ALCAR, L.L.C. FORA CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG-1 AND AG-2 TO CONDITIONAL R-10 Ordinance upon Application ofALCAR, L.L.C. for a Change oiZoning�District Classification from AG-1 and AG-2 Agricultural Districts to Conditional R-10 Residential District on the north side of Nimmo Parkway "unimproved), west of Rockingchair Lane (GPIN 2404573796; 2404564943; 2404371633). The Comprehensive Plan recommends use of this parcel for residential uses at or below 3.5 dwelling units per acre. The Comprehensive Plan also identifies the site as a Conservation Area where land -disturbing activities should be avoided, mitigated or, under certain conditions, prohibited. DISTRICT 7 — PRINCESS ANNE March 23, 2004 -81- Item V-0.10. PLANNING ITEM # 52430 (Continued) ORDINANCE UPONAPPLICATIONOFALCAR, L.L. C. FORA CONDITIONAL USE PERMIT FOR OPEN SPACE PROMOTION Ordinance upon Application ofALCAR, L.L. C. for a Conditional Use Permit for Open Space Promotion on the north side of Nimmo Parkway (unimproved), west of Rockingchair Lane (GPIN 2404573796; 2404564943; 2404371633). DISTRICT 7 — PRINCESS ANNE Voting: 10-0 Council'Members Voting Aye: Harry E. Diezel, Margaret L. Eure, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Richard A. Maddox Due to illness, Councilman Maddox left at 7.58 P.M. Council Lady Wilson DISCLOSED Pursuant to Conflict of Interests Act § 2.2-3115 (H) her husband is a principal in the accounting firm of Goodman and Company and earns compensation which exceeds $10, 000.00 annually. Goodman and Company provides services to ALCAR, L.L. C. Her husband does not personally provide services to ALCAR, L.L.C. The City Attorney has advised that although she has a personal interest in the transaction, because her husband does not personally provide services to ALCAR, L.L. C, she may participate without restriction in City Council's discussion of, and vote on, the ordinance, upon disclosure. Council Lady Wilson's letter of October 28, 2003, is hereby made a part of the record March 23, 2004 Map J—ll P �.J �V JVP1G A T.CA R_ ITC SOUTHEASTEPiV I I PARKWAY (proposed) AG -I R-10 (OP) AG? R -10 Gpin 2404-57-3796 — 56-4943 1 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: ALCAR, L.L.C. — Change of Zoning District Classification, North of Nimmo Parkway Right -of -Way, 910 feet west of Rockingchair Lane (DISTRICT 7 — PRINCESS ANNE) MEETING DATE: March 28, 2006 ■ Background: An Ordinance upon Application of ALCAR, L.L.C. for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural Districts to Conditional R-7.5 Residential District on property located on the north side of the Nimmo Parkway Right -of -Way (unimproved), 910 feet west of Rockingchair Lane (GPI Ns 2404371630; 2404573796; 2404564943). DISTRICT 7 — PRINCESS ANNE This application was indefinitely deferred last by the City Council on March 23, 2004 under the provisions of the Interim AICUZ Guidelines to provide time for the adoption of ordinance amendments pertaining to the Joint Land Use Study (JLUS), which occurred on December 20, 2005. The applicant has since submitted a letter requesting that this item be placed on the earliest available City Council agenda. To provide adequate notice to the public, new public notice signs have been posted on the site, adjacent property owners have been notified via certified mail, and the application has been advertised in the Vi rginian-Pi lot's Virginia Beach Beacon. ■ Considerations: The applicant proposes to rezone the property to a Conditional R-7.5 Residential District. The applicant proposes to develop the site with 132 single-family homes on lots of 7,500 square feet. The subject site has a total area of 112.3 acres. This total area can be broken up into three categories. ❑ Conservation Area- The Conservation Area consists of 39.5 acres. All land within this area is below the 100-year floodplain level of 6.25 feet with the exception of a small knoll where the proposed entrance to the subdivision is located. There are some tidal and nontidal wetlands present in this area. This area is to be dedicated to the City for inclusion in the West Neck Creek linear park. ALCAR, L.L.C. Page 2 of 3 o Open Space Area — The Open Space Area consists of 22.7 acres. The majority of the land within this area is below the 100-year floodplain level of 6.25 feet and contains some areas of nontidal wetlands. The Open Space Area contains four identified park sites, the largest being 37,500 square feet and the smallest being 15,000 square feet. ❑ Housing Area — The Housing Area consists of approximately 50 acres. This includes the streets and home lots shown on the conceptual plan. Most of this area is above the 100 year floodplain level of 6.25 feet. The density for this project is calculated on the combined areas of the Open Space and Housing, which is a total of 72.7 acres. 132 units = 72.7 acres = 1.8 units to the acre. This density is below that found in the surrounding area. The applicant has coordinated the access for the site with the planned Capital Improvement Program projects in the area. There is no access planned from the residential areas to the north. It must be stressed that more than half of the site is below the 100-year floodplain elevation of 6.25 feet and there are extensive areas of nontidal wetlands on the site. The significant land disturbance associated with a conventional single-family subdivision will impact these areas even with the best measures employed in an attempt not to. It must, therefore, be understood that the low elevation of the overall site combined with its natural resource characteristics are pause for concern, particularly regarding the subject of stormwater drainage. The applicant will, no doubt, encounter significant issues during review of plans for stormwater drainage. It is likely that the proffered plan may need adjustment and the number of lots may decrease in order to provide an adequate stormwater system that not only serves this site but also integrates well with surrounding sites. An additional issue to be considered in the evaluation of this request is the fact that the majority of the site is located within the 65 to 70 dB Ldn AICUZ and a smaller portion is within the 70 to 75 dB Ldn AICUZ. Residential uses are designated as being not compatible within those AICUZ. Section 1804 of the AICUZ Ordinance, adopted by the City Council on December 20, 2005, notes the following regarding the evaluation of rezoning applications within any AICUZ over 70 dB Ldn: It shall be the policy of the city council that no application ... shall be approved unless the uses are designated as compatible under Table 1 below and, if applicable, Table 2, unless the city council finds that no reasonable use designated as compatible under the applicable table or tables can be made of the property. In such cases, the city council shall . . . approve the proposed use of property at the least density and intensity of development that is reasonable. Staff concludes that there are no "reasonable" uses listed in Table 1 for the property, as compatible uses consist of retail, light industrial, offices, recreational ALCAR, L.L.C. Page 3 of 3 uses, and agricultural uses. These uses are either incompatible with the surrounding land uses or not economically feasible due to the location and size of the site. Based on the location of residential use adjacent to or in close proximity to the site, residential use is the most "reasonable" use. This parcel is the final 'infill' site in this vicinity, as the remaining undeveloped parcels are severely constrained by wetland and floodplain. There was opposition to the request. ■ Alternatives: The City Council has the following alternative courses of action pertaining to this request: 1. The City Council may, if it desires, approve this application as proffered, allowing development to proceed through the normal permitting and construction process; 2. The City Council may, if it desires, defer this application once again either indefinitely or to a certain date. Additionally, should the City Council pursue this alternative, the Council may elect to direct the applicant to reduce the density to one unit per acre, which is equivalent to the density allowed with the existing AG Agriculture zoning and is consistent with the footnote provisions of Table 2 of the OPNAV AICUZ/APZ Instructions for the 65 to 75 dB Ldn AICUZ; 3. The City Council may, if it desires, deny this application; or 4. The City Council may also defer the application with direction to the Staff to negotiate with the property owner (who is also the applicant in this case) to pursue purchase of the property for wetlands mitigation, as the site is suited to such use due to the existing natural resource characteristics. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 10-0 to approve this request as proffered. Staff recommends deferral in order to consider the alternatives as discussed above. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Submitting Department/Agency: Planning Department *, City Manager. ALCAR LLC M Original: September 10, 2003 REVISED for March 28, 2006 City Council General Information: REQUEST: Change of Zoning District Classification from AG-1/AG-2 Agricultural District to Conditional R-7.5 Residential District ADDRESS: North side of proposed Nimmo Parkway, 910 feet west of Rockingchair Lane Map 1-11 ATr.4JV T-Tr Not to -ICOIC j'<1 I I SOUTHEASTERN I I PARKWAY (Proposed) ai R *5 R 0 to�l AG-1 R R IC -10 (4) 7. GPin 2404-573796 - 56-4943 GPIN: 2404371630 2404573796 2404564943 WbiqNMN&dWMdWA� I WMMU10M REVISED for March 28, 2006 City Council Meeting ALCAR,LLC Pagel ELECTION DISTRICT: 7 - PRINCESS ANNE SITE SIZE: 112.3 acres PURPOSE: To rezone the property in order to develop a neighborhood of 132 single- family homes on 7,500 square foot lots. APPLICATION This application was deferred at the August 13, 2003 Planning HISTORY: Commission hearing at the request of the applicant. On September 10, 2003, the Planning Commission voted to recommend approval to the City Council. On March 23, 2004, consistent with the Interim AICUZ Guidelines then in place, the City Council voted to indefinitely defer the application in order to allow completion of the Joint Land Use Study (JLUS). Major Issues: • More than half of the land on the site, or 62.2 acres, is below the elevation of the 100 year floodplain level of 6.25 feet. Land disturbance and fill are restricted in this area by the City's development ordinances. • Consistency of the proposal with the land use recommendations of the Comprehensive Plan. There are two roadway projects planned for roads adjacent to this site, Nimmo Parkway Phase V-A (CIP 2-121) and Seaboard Road (CIP 2-107). Coordination and impacts on the roadway projects are concerns. Land Use, Zoning, and Site Characteristics: Existing Land Use and Zoning The property is currently vacant and is zoned AG-1 and AG-2 Agricultural District. Extensive areas of floodplain and wetlands REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 2 are interspersed throughout the site. More than half of the site, or 62.2 acres, is below the elevation of the 100-year flood level of 6.25 feet. There are three general categories of wetlands present on this site. The first are tidal wetlands as defined in the City Zoning Ordinance. These wetlands are immediately adjacent to the floodway of West Neck Creek. The second category is nontidal wetlands as defined by the Southern Watersheds Management Ordinance and the City Zoning Ordinance. These wetlands are present on the site for a distance of approximately 800 feet east of the floodway of West Neck Creek and also along the edge of the stream that traverses through the southeast portion of the site. The third category consists of nontidal wetlands under the jurisdiction of the Army Corps of Engineers and identified as "Isolated/Headwater Wetlands" (I/H wetlands). Most of these areas are at the edge of the floodplain and on the higher ground proposed for home lots. The site was logged in 2000 and 2001. Mature trees were removed from the majority of the site. Some mature trees were left remaining in the I/H wetland areas, areas bordering West Neck Creek and a 40 to 50 foot area of trees bordering the neighborhoods of Castleton and Pine Ridge, along the northern boundary of the site. The native vegetation that is currently growing on the site has an average height of 4 to 5 feet at this time. Surrounding Land Use and Zoning North: . Single-family homes / R-10 (OP) Residential District South: . Proposed Nimmo Parkway right-of-way East: • Single-family homes / R-5D Residential District West: . West Neck Creek / AG-1 Agricultural District Zoning and Land Use Statistics With Existing Uses consistent with the underlying agricultural zoning Zoning: on this site, such as a plant nursery or wetlands bank. With Approximately 132 single-family homes as shown on Proposed the proffered conceptual subdivision plan associated Zoning: with this request. The number of homes is approximate and may be less than 132 when the subdivision plan is reviewed in detail for stormwater management, utility services, etc. o��� BEAn REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 3 Zoning History The neighborhoods to the north of this site, Pine Ridge and Hunt Club Forest, were zoned and developed for residential use during the 1970s and 1980s. The neighborhood of Castleton north of the site was developed for residential use more recently during the 1990s. The most recent residential rezoning in this area occurred south of the site, on the west side of Seaboard Road in 1999. This neighborhood is known as Princess Anne Woods. On the subject site, a rezoning from AG-1 and AG-2 to R-10 Residential District and a Conditional Use Permit for Open Space Promotion for 255 single-family homes was denied by City Council on September 26, 2000. The subject request is similar to the 2000 request, except that the number of home sites has been reduced to 132 and there is far less fill and disturbance of the floodplain on the present plan. Air Installation Compatible Use Zone (AICUZ) The northern portion of the subject site is in an AICUZ of 70 to 75dB Ldn surrounding NAS Oceana. The southern portion of the site is in an AICUZ of 65 to 70 dB Ldn surrounding NAS Oceana. A copy of a letter from 2003 noting the Navy's position on this rezoning is provided at the end of this report (2006 communication with the Navy indicates that the position stated in the letter remains, as residential uses is designated as being incompatible with the OPNAV Instruction). Public Facilities and Services Water and Sewer There is a 30-inch force main in the Nimmo Parkway right-of-way fronting the southeast portion of the property. There is a 16-inch water main in the Nimmo Parkway right-of- way fronting the southeast portion of the property. This subdivision must connect to City water. Hydraulic analysis, fire demand requirements, and plans and bonds are required for the construction of the water system. City gravity sewer is not available to this development. Plans and bonds are required for the construction of a new pump station (off -site) and sewer system. Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): The subject site does not have access to an improved public right-of-way at this time. The right-of-way for the proposed Nimmo Parkway borders the site on the south, and the applicant has proffered to construct two lanes of this roadway from its current terminus near the Fire Station/Library/Recreation Center complex to the new REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 4 subdivision entrance. Public Works has reviewed the Traffic Impact Study regarding this proposal and concurs that this is the most prudent way for this subdivision to gain access to surrounding roadways. There are two roadway projects in the vicinity of this subdivision as noted below. NIMMO PARKWAY PHASE V-A CIP 2-121 This project is for construction of a four -lane divided roadway on a six -lane right-of- way, with a bikepath, from Holland Road at Kellam High School to that part of Nimmo Parkway Phase V previously constructed to provide access to the Princess Anne Community Recreation Center from General Booth Boulevard. The estimated start of construction is June 2010 and estimated completion date is June 2012. SEABOARD ROAD CIP 2-107 This project is for the construction of a three -lane undivided highway from Princess Anne Road to Nimmo Parkway, a distance of approximately 3,200 feet. This project will also include an upgrade of the intersection of Princess Anne Road and Seaboard Road to include a new traffic signal. Additional funding was added for the interim cost participation project to realign the intersection at Princess Anne Road. The estimated start of construction is July 2008 and the completion date is July 2009. Traffic Calculations: This development is expected to generate 1,366 vehicle trips per day. Schools The chart below indicates that Kellam High School is currently over capacity. The information provided below does not take into account the potential impacts of other proposals pending or under construction that could affect the same schools. School Current Capacity Generation' Change 2 Enrollment Princess Anne 572 664 46 46 Elementary Corporate Landing 1,541 1,619 24 24 Middle School Kellam High 2,388 1,798 32 32 School 1 "generation" represents the number of students that the development will add to the school REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 5 "change" represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be positive (additional students) or negative (fewer students). Public Safetv Police: 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. Fire and No comments at this time. Fire requirements will be reviewed Rescue: during detailed subdivision construction plan review. Comprehensive Plan The Comprehensive Plan Map designates this site as being within the Primary Residential Area, suitable for appropriately located suburban residential and non- residential uses consistent with the policies of the Comprehensive Plan. Summary of Proposal Proposal • The subject site has a total area of 112.3 acres. This total area can be broken up into three categories. • Conservation Area- The Conservation Area consists of 39.5 acres. All land within this area is below the 100-year floodplain level of 6.25 feet with the exception of a small knoll where the proposed entrance to the subdivision is located. There are some tidal and nontidal wetlands present in this area. This area is to be dedicated to the City for inclusion in the West Neck Creek linear park. Open Space Area — The Open Space Area consists of 22.7 acres. The majority of the land within this area is below the 100-year floodplain level of 6.25 feet and contains some areas of nontidal wetlands under the jurisdiction of the Army Corps of Engineers. The Open Space Area contains four identified park sites, the largest being 37,500 square feet and the smallest being 15,000 square feet. REVISED for March 28, 2006 City Council Meeting ALCAR, LLC SeGM.w-�r.:y i =aryyF/77 Page 6 • Housing Area — The Housing Area consists of approximately 50 acres. This includes the streets and home lots shown on the conceptual plan. Most of this area is above the 100 year floodplain level of 6.25 feet. There are some pockets of I/H wetlands that will be impacted by home construction. This area can best be described as three islands of high ground connected by roadways that traverse the lower floodplain and wetland areas. The density for this project is calculated on the combined areas of the Open Space and Housing, which is a total of 72.7 acres. 132 units - 72.7 acres = 1.8 units to the acre. Site Design • The conceptual subdivision plan shows one main entrance to the subdivision from Nimmo Parkway. The roadway extends northward, crosses a stream, enters the Housing Area and then comes to an intersection, where the road splits to the east and northwest. • The southeast portion of the site, where the stream is located, is designated as a Conservation Area. The roadway travels through this Conservation Area for a distance of 900 feet before it reaches the Housing Area. REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 7 • The roadway crosses the floodplain/wetland areas in four locations. At each of these locations, the construction of the roadway will require fill within the floodplain. • There is also some fill proposed within the floodplain along the edges of some of the home lots. The applicant submitted a conceptual floodplain fill plan to the Development Services Center (DSC). It has been determined by the DSC that this project falls under the criteria for administrative review of fill. A conceptual floodplain mitigation plan was also submitted and reviewed in accordance with the same criteria. The final approval for fill within the floodplain will depend on detailed engineering design. New information and facts may alter the expectations of the developer and may ultimately reduce the number of home sites allowed. • The minimum size for the home lots is shown as 7,500 square feet. Most of the lots on the plan are uniform; there is very little variation from this minimum lot size. • Most of the home lots back up to the Open Space Area or stormwater management ponds, except for those along the northern boundary of the site. These home lots are directly adjacent to existing home lots in Castleton and Pine Ridge. Vehicular and Pedestrian Access • Currently, the subject site has no direct access to an improved public right-of-way. There is a dirt road on the south side of proposed Nimmo Parkway that connects to Seaboard Road and travels through this site. A traffic impact study was submitted by the applicant and reviewed by Public Works. The Department of Public Works concurs with the study's recommendation that access to the subdivision be provided by Nimmo Parkway. The applicant is proffering to construct two lanes of Nimmo Parkway within the existing public right- of-way for a distance of approximately 2,500 feet. The roadway would be built from the subdivision entrance east to the current terminus of the roadway near the Princess Anne Recreation Center. • The section of Nimmo Parkway to be built by the developer would not connect to Seaboard Road. The Department of Public Works does not recommend subdivision access to Seaboard Road until the planned roadway improvements are constructed along Seaboard Road to Princess Anne Road with CIP 2-107 (described earlier in this report). • When the two lanes of Nimmo Parkway are built, there will be a new intersection created at Rockingchair Lane, approximately 910 feet to the east of the new REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 8 subdivision's entrance. Improvements and traffic movement control will be required for this intersection. Residents of Southgate and Hunt Club Forest will have access to the new two-lane section of Nimmo Parkway in addition to the residents of the proposed subdivision. • The proposed subdivision roadway connection to existing Nimmo Parkway will impact the traffic signal operation and timings at the intersection of Nimmo Parkway and General Booth Boulevard, and the developer will be responsible for working out new traffic signal timings. • A temporary emergency fire station traffic signal maybe required in front of the General Booth Fire Station on Nimmo Parkway. The developer will be responsible for working with the City regarding design, construction and costs associated with the installation of this signal. • The subdivision entrance road has been located to accommodate the preliminary designs for Seaboard Road and Nimmo Parkway. Additional coordination with these two CIP projects will be necessary during the detailed engineering phases of the projects. • It should be noted that the proposed subdivision will have only one access point and will not have any connections to neighboring properties. Architectural Design • A mixture of one-story and two-story dwellings is planned. The applicant has proffered four architectural styles and a minimum square footage for the homes. In addition, it has been proffered that all homes will have a two car garage. Landscape and Open Space • The conceptual subdivision plan shows a 39.5 acre Conservation Area to be dedicated to the City as part of the West Neck Creek linear park. The subdivision entrance road traverses this Conservation Area in the southeastern portion of the site. It should also be noted that preliminary design plans for the Seaboard Road and Nimmo Parkway CIP projects show drainage outfalls at the stream located in the southeastern portion of the Conservation Area. It is likely that the proposed subdivision will also have drainage outfalls in this area, although no detailed engineering for stormwater management for the proposed subdivision has been conducted. • The conceptual subdivision plan shows the Open Space Area to be dedicated and maintained by the Homeowner's Association. This area is below the 100-year floodplain elevation of 6.25 feet and contains pockets of nontidal wetlands regulated �N1A 8 REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 9 by the Army Corps of Engineers. • The applicant submitted an application for a permit from the Army Corps of Engineers for the impacted I/H wetlands associated with this project. This application is currently under review by the Army Corps of Engineers. The permit application shows that there will be some on -site mitigation to create new nontidal wetland areas for those being impacted by the roadway and home construction. These areas of new wetlands are identified as "wetland mitigation" on the conceptual subdivision plan. The Open Space Area contains four designated park sites totaling 2.4 acres. Three of the four park sites can be accessed from the main roadway. The fourth park site, adjacent to the northern boundary of the property in the western portion of the site is not accessible as shown on the conceptual plan due to the fact that it is surrounded by I/H wetlands that are designated to remain. Proffers PROFFER # 1 When development takes place upon that portion of the Property which is to be developed, it shall be as a single family residential community substantially in conformance with the Exhibit entitled "CONCEPTUAL SUBDIVISION PLAN OF NIMMOS QUAY, VIRGINIA BEACH, VIRGINIA" dated December 12, 2002, prepared by Clark-Nexsen, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Concept Plan"). PROFFER # 2 When the Property is developed, approximately 22.7 acres of parklands, lakes and recreation areas designated "Open Space" on the Concept Plan shall be dedicated to and maintained by the Property Owners Association. When the Property is developed, playground equipment and neighborhood park improvements meeting the City's Department of Parks and Recreation Standards shall be installed in the four (4) areas designated "PARK" on the Concept Plan. PROFFER # 3 When the Property is developed, approximately 39.5 acres of land designated as "Conservation Area" on the Concept REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 10 Plan shall be dedicated to the City of Virginia Beach for inclusion in the West Neck Creek Linear Park. PROFFER # 4 When the Property is subdivided, it shall be subject to a recorded Declaration of Protective Covenants, Conditions and Restrictions ("Deed Restrictions") administered by a Homeowners Association, which shall, among other things, maintain the Open Space areas. PROFFER # 5 All residential dwellings constructed on the Property shall incorporate architectural features, design elements and high quality building materials substantially similar in quality to those depicted on the four (4) photographs labeled "Typical Home Elevations at NIMMOS QUAY" dated December 12, 2002 which have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning. Any one story dwelling shall contain no less than 2500 square feet of enclosed living area excluding garage area and any two- story dwelling shall contain no less than 2600 square feet of enclosed living area excluding garage area. The front yards of all homes shall be sodded. The Deed Restrictions shall require each dwelling to have, at a minimum, at two (2) car garage. PROFFER # 6 When the Property is developed, the party of the First Part shall construct a two lane section of Nimmo Parkway Phase V-A CIP 2-121 in accordance with the Virginia Department of Transportation's engineering standards for the roadway, within the existing Nimmo Parkway public right-of-way extending east approximately 2,560± feet from the entrance to the subdivision to connect with the existing improved Nimmo Parkway section. PROFFER # 7 When the Property is developed, the party of the first part shall extend public utilities, to serve the subdivision, including the possible construction of an off -site sewage pump station. PROFFER # 8 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 ee,C REVISED for March 28, 2006 City Council Meeting �f�! ALCAR, LLC Page l l `" requirements. Any references hereinabove to the R-7.5 Zoning District and to the requirements and regulations applicable thereto refer to the Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. Staff Evaluation: The proffers are acceptable. City Attorney's The City Attorney's Office has reviewed the proffer Office: agreement dated March 1, 2006, and found it to be legally sufficient and in acceptable legal form. Evaluation of Request The request for a rezoning from AG-1 and AG-2 Agricultural District to Conditional R-7.5 Residential District is acceptable, but with a caveat. Staff notes that the density of the proposed project (1.8 units per acre) is below that found in the surrounding area and that applicant has coordinated the access plan with the adjacent roadway projects and has limited the proposed floodplain fill to the roadways and edges of the lots. In sum, the applicant has proffered a plan that minimally meets the intent of the various development ordinances of the City. It must be stressed, however, that more than half of the site is below the 100-year floodplain elevation of 6.25 feet and there are extensive areas of nontidal wetlands on the site. The significant land disturbance associated with a conventional single-family subdivision will impact these areas even with the best measures employed in an attempt not to. A second issue concerns the fact that the majority of the site is located within the 65 to 70 dB Ldn AICUZ and a smaller portion is within the 70 to 75 dB Ldn AICUZ. Residential uses are designated as being not compatible within those AICUZ. Section 1804 of the AICUZ Ordinance, adopted by the City Council on December 20, 2005, notes the following regarding the evaluation of rezoning applications within any AICUZ over 70 dB Ldn: It shall be the policy of the city council that no application ... shall be approved unless the uses are designated as compatible under Table 1 below and, if applicable, Table 2, unless the city council finds that no reasonable use designated as compatible under the applicable table or tables can be made of REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 12 the property. In such cases, the city council shall ... approve the proposed use of property at the least density and intensity of development that is reasonable. Staff concludes that there are no "reasonable" uses listed in Table 1 for the property, as compatible uses consist of retail, light industrial, offices, recreational uses, and agricultural uses. These uses are either incompatible with the surrounding land uses or not economically feasible due to the location and size of the site. Based on the location of residential use adjacent to or in close proximity to the site, residential use is the most "reasonable" use. This parcel is the final `infill' site in this vicinity, as the remaining undeveloped parcels are severely constrained by wetland and floodplain. A "reasonable" density in this case is one that serves as a transition from the 5,000 square foot lots to the east and the 10,000 square feet lots to the north and south. Thus, lots at 7,500 square feet are appropriate and reasonable. It must be stressed, however, that the density of this project, due to the amount of open space being provided, is at 1.8 units per acre, which is below the density of surrounding residential developments. The proposed density, therefore, is certainly `reasonable.' Staff can support this request; however, that support comes with the caveat that it must be understood that the low elevation of the overall site combined with its natural resource characteristics, as described above, are pause for concern, particularly regarding the subject of stormwater drainage. The applicant will, no doubt, encounter significant issues during review of plans for stormwater drainage. It is likely that the proffered plan may need adjustment and the number of lots may decrease in order to provide an adequate stormwater system that not only serves this site but also integrates well with surrounding sites. 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. REVISED for March 28, 2006 City Council Meeting ALCAR, LLC Page 13 It'd) > Qz",� ? REVISED for March 28,2006 City Council Meeting ALCAR,LLC Page 14 REVISED for March 28, 2006 City Council Meeting ALCAR, LLC �NIA-BEA S4�q:M">caCy a >ryw �o Page 15 Typical Home Eieva*.jon at Nimmo's Quay 12/lZi02 Typical Home Eievation at Nirnrlds Quay 12112102 REVISED for March 28, 2006 City Council Meeting ALCAR,LLC Page 16 Typical Homa Elevation at Nimmcys Quay 1 Z'1 2;02 Typical Home Elevation at Nim,,rds Quay 12/12FO2 REVISED for March 28, 2006 City Council Meeting ALCAR,LLC Page 17 DEPARTMENT OF THE NAVY NAVAL AIR STATION OCEANA 1750 TOMCAT BOULEVARD VIRGINIA BEACH, VIRGINIA 2346 0-2 11 kLAMPLY REFER TO: 10A RI 5728 4jS4Or- 32/0222 I --June 5, 2003 Ms. Barbara Duke Planning Department City of Virginia Beach Building 2, Room 100 2405 Courthouse Drive Virginia Beach, VA 23456 Dear Ms. Duke: Thank you for the opportunity to comment on the rezoning request by ALCAR LLC, for the proposed construction of 138 homes. The site is located in the 65-70 decibel (dB) day -night average (Ldn) noise zone. The Navy's Air Installations ' Compatible Use Zones Program states that residential land use is incompatible in this zone. The Navy acknowledges the iandowner's desire to develop their property, but I urge you to deny their request. We would view residential development at this site as an encroachment upon operations at Naval Air Station Oceana. If you have any questions, please contact my Community Planning Liaison Officer, Mr. Ray Firenze at (757) 433-3158. Sincerely and very respectfully, T. KEE- Ca ,I r U Navy Comm din Officer Copy to: COMNAVREG MIDLANT Mayor Meyera Oberndorf Virginia Beach City council Virginia Beach Planning Commission REVISED for March 28, 2006 City Council Meeting ALCAR,LLC Page18 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) ALCAR, L.L.C.: Alan S. Resh, Member; Carmine Pisapia, Member 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Jamast, Inc.: Carmine Pisapia, President; Alan Resh, Vice President/Secretary/Treasurer 2. List all businesses that have a pare nt-subsidiaryl or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & ` See next page for footnotes Conditional Rezoning Application Page 11 of 12 Revised 9/1/2004 cMMZ) Z O N Z O H A Z CD V DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Clark-Nexsen Engineers Sykes, Bourdon, Ahern & Levy, P.C. American Law Offices, P.C. BB&T Stokes Environmental Intermodal Engineering 1 "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent -subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code F� 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. ALCAR, L By: Alan S. Resh, Member Annlinant'c . innattirP Print Name By:< Property s Signature (if different than applicant) Alan S. Resh, Vice President Print Name Conditional Rezoning Application Page 12 of 12 Revised 9/1/2004 Item #4 & 5 Alcar, L.L.C. Change of Zoning District Classification Conditional Use Permit North side of Nimmo Parkway District 7 Princess Anne August 13, 2003 DEFERRED Ronald Ripley: Our first order of business as Jan pointed out to you is to consider any items to be deferred or withdrawn. If you have an item that you wish for us to consider to withdrawing or deferring, please come forward. State your name. Give us the item number please. Eddie Bourdon: Good afternoon Mr. Chairman, Eddie Bourdon, a Virginia Beach attorney and I request on behalf of Alcar, Inc. on cases four and five that this matter be deferred. We were frankly caught off guard by the staff comments and would like to have some additional time to discuss this application with the staff. Ronald Ripley: Thank you very much. Anybody have any objection to deferring Items four and five? Thank you. Okay, so I'd like a motion please from someone here on the Commission to defer items #4 & 5. We have a motion by Don Horsley and a second by Dot Wood. Mr. Miller? Robert Miller: I need to abstain from items #4 & 5. My firm is working on those projects. Ronald Ripley: So noted. Is there any other discussion? Let's call for the question please. AYE 10 NAY 0 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE MILLER RIPLEY AYE SALLE' AYE STRANGE AYE WOOD AYE ABS 1 ABSENT 0 ABS Ronald Ripley: By a vote of 10-0 the motion passes with the abstention so noted. Item # 19 & 20 Alcar, L.L.C. Change of Zoning District Classification Conditional Use Permit North side of Nimmo Parkway District 7 Princess Anne September 10, 2003 REGULAR Robert Miller: The next item is Item #19 & 20, Alcar, L.L.C. Eddie Bourdon: Sorry to block your views. Ronald Ripley: We get signals from staff. I'm just kidding. Eddie Bourdon: This one is going to be flipped over. For the record, my name is Eddie Bourdon and it is my pleasure to come before. you this afternoon representing the application of Nimmos Quay. Mr. Resh is here as well as Joe Bushey, from Clark Nexsen who are the engineers working on this project. Mr. Resh and I have been working on this project now for about a year. My history with this particular property goes back to 1997, which I'll get into in a few minutes. We've had a very positive process that we've gone through with staff. I want to thank Barbara Duke who I understand is sick. I think someone gave her some bad food on her birthday but she worked very hard with us as with the rest of the staff including the folks in Traffic Engineering. This is a proposal on a 112-acre parcel of which approximately 73 acres are developable acres. To create a very high end subdivision of 132 lots, probably a few less than that. These houses, we proffered the type of houses that will be built. They will be very attractive homes that will be priced between $350,000 and up. I think the quality is very clear and very evident. The property is located south of Castleton and south of a section of Pine Ridge and west of Hunt Club and west of the section of South Gate. We're surrounded both on the north and on east by residential development. To our south is the, I guess Nimmo Parkway Phase V, I believe. I may be wrong on the phase number. And below Nimmo Parkway is the Princess Anne Woods subdivision. The property, because of the way Castleton developed, and I guess the best place to look is up here on the pinpoint. The property was supposed to be accessed via this roadway here through Castleton but for reasons I won't discuss, and there are a lot of reasons, and that's not going to happen and that can't happen and as a consequence, the property must be accessed by Nimmo Parkway and one of the things that we've done with this application is we've done a Traffic Impact Study, presented to the City, and this applicant will be constructing two lanes on Nimmo Parkway to meet the standards for Nimmo Parkway at a cost of approximately $900,000, and that will be extended from the fire station to the property. The property itself is a series of clustered lot configurations that are for the most part surrounded by open space. We are with this proposal only utilizing 26 percent of the land for roads and houses. Of the developable land, we're using less than 40 percent for roads and houses. In other words, 74 percent of the site is going to remain as open space. Over 60 percent of the developable land will be open space. And over 100 homes will be backing up to open space. And, ladies and gentlemen, this is not in the Transition Area. It sure as heck looks like it is a plan in the Transition Area. Now, Item # 19 & 20 Alcar, L.L.C. Page 2 the reason that I put this map up here is to show you that there is a little bit of history behind this piece of property. Back in 1997, Taylor Farm Associates had most of the property under contract as shown over here and they brought forth a plan to develop 230 lots on this piece of property. The property that I'm talking about is the property here. Not every bit of what I'm talking about in this application. That application was recommended for approval by the staff consistent by the Comprehensive Plan's recommendation of 3.5 units per acre. The rezoning was R-10 open space and it was recommended unanimously by the Planning Commission for approval. The Courthouse Coalition of Civic Leagues was supporting the application, as was the Pine Ridge Civic League, which I met with on a number of occasions at that time. And, between Planning Commission and City Council, the applicant deferred the application. He was working with the Corps of Engineers and was developing Castleton at the time wanted to get all this wetlands permits from the Corps of Engineers, which he in fact did receive and the property is the subject of an approved wetlands disturbance permit from the Corps of Engineers. But during that process some contractual issues arose and other things occurred really having nothing to do.with the prospects of the application being approved at that time but the contracts fell through and so the deal at that point died. It never went to City Council, but it was recommended for approval, by the staff and by the Planning Commission unanimously for 230 lots. At that time the floodplain ordinance is not what it is today. The floodplain ordinance that exists in the northern part of the city today applied to all the city at that point and that development plan would have impacted about 30 percent of the floodplain on this site. That's flood fringe. We can talk about floodplain if you all want but floodplain is not wet area. It's just area that stores a little bit of water at a 100 year storm event, but it's not wetlands. It's not swamp. It's just high land thatnot high enough that is outside the floodplain. It gets wet when there's a 100-year storm event. Anyway, later in the year 2000, this property was assembled by Clark Whitehill, and they brought forward an application for 255 units on this piece of property, and that's what shown here. And what this is also to show is that all the ground here are residential lots that surround this property, developed residential subdivisions that surround this property. And, what you see here is the plan that was submitted in 2000. And, their timing was certainly not good. That's when we were dealing with the flooding issue that existed in Castleton or were trumped up in Castleton and mainly they were because of construction problems and blockage in lines but it was an issue at that time. They had some major storm events. We also had the Lotus Creek situation going and so floodplains were a hot button item. This 255-unit subdivision, was recommended for approval by the Planning Commission. Staff did not recommend approval. They thought it was too great an impact on floodplains and on wetlands and it was more significant in terms of development than the previous application of Taylor Farm Associates. So that application was actually denied. Now we have an application where this applicant has done everything that he was asked to do. He went in and said okay, I'm not going to ask for a floodplain variance to impact the floodplain more than is permitted. There is a small amount that is permitted under our new floodplain ordinance that only applies to this part of the city and I'm going to go and have gone to the Corps of Engineers to modify the existing permits on this property to reduce the impact to isolated non -tidal upland wetlands by 40 percent over what is already permitted on this property by the Corps permit with this application. And, thus we have an application before you for a plan that instead of looking like this plan, it looks like the one you see there, which Item #19 & 20 Alcar, L.L.C. Page 3 when you put that to everything around it, you see a few lots surrounded by a lot of green space up against residential development all around. There are 65 lots in the adjacent neighborhoods that abut this piece of property. Our development plan has a total of 18 lots that abut some of those lots. As a matter of fact, they abut 16 of those lots. And, what we have done when this property was logged, and it was logged a few years ago, we retained on the site, because knowing eventually it would be developed residentially, believing that would be the case because that is what our Comprehensive Plan recommends, we left a wooded buffer on the back of the property. Some of that wooded buffer is also on the 65 lots that adjoin our piece of property. There's a 30-foot easement between our property and that would remain. And, we intend to keep on our property those trees that are in that buffer. Now, there may be a tree or two towards the southern part of the property that we have to take out for drainage purposes but that's why those trees were left. It is our intent to keep those trees on the property. I see that light blinking and I don't know whether you all want me to. I have a lot of things to talk about on this, but if you want to ask some questions. Ronald Ripley: Can we handle those in questions and answers? Eddie Bourdon: I'll try to. I'm happy to do that. Ronald Ripley: I'm sure there are a lot of questions about this application. Eddie Bourdon: I just don't know if you want me to do it that way or address them as I go forward. Ronald Ripley: Technically, I think that would be the appropriate way of handling it Eddie Bourdon: You all want to ask me some questions, I'm happy. Ronald Ripley: Are there any questions of Mr. Bourdon? Eddie Bourdon: No questions. That's good. Ronald Ripley: No, we got questions. Mr. Miller. Robert Miller: Obviously, I'm very familiar with this piece of land and have walked it. Having had it timbered, it does bring some issues with regard to perhaps how that open space is going to be handled, the part that hasn't been timbered. I don't know if that is part of the parcel. I assume that the timbering just wasn't in these lots because it is hard to tell exactly where it was but in that open space area is where the timbering occurred. How is that handled? Also the other thing that I would like to have addressed is the extension of the road, two lanes of that road. I heard how expensive it is. I also looked at Seaboard Road and wondered if that was a point of discussion as the extension too. Eddie Bourdon: I'll start with the last question first. It certainly was a point of discussion, the extension of Seaboard Road. That is a project that is actually under design and will be done by the City. The Nimmo Parkway proposal, that road is a VDOT Item #19 & 20 Alcar, L.L.C. Page 4 project. And, the Traffic Impact Study, and frankly everyone, and I don't think there is any disagreement at all it is that the best way to access this property, is to build two lanes of Nimmo Parkway, which is far more expensive then extending Seaboard Road. And the time frame of this development will be two years before these lots will be sold. The extension of this roadway made more sense than dumping the traffic on Seaboard Road to come into this section of Princess Anne Road that currently is under some stress, which will go away with Nimmo Parkway or be significantly alleviated with Nimmo Parkway, which has been held up for quite some time. But is now going forward and will be going forward in 2008, which is the date that it's intended to be open. So, putting the traffic onto Nimmo coming out to General Booth was clearly the best way to deal with the subdivision. But what will happen is there will be an intersection at Seaboard Road when Seaboard Road is punched through to it, which will be happening also by the course of the next five years. But that project is actually in the works but it will not happen overnight. The open space areas when the property was logged those areas that were accessible. There is obviously open space area almost 40-acres being given to the City on West Neck Creek, part of what the Comprehensive Plan requires, asks. for, not requires in that area that is truly low area was not logged. The other area there is some vegetation that is growing on trees but those open space areas will generally be passive open space areas but there are parts that are designated and those parts are all on areas that are either outside the floodplains and some are in it but again, floodplain does not mean that it is swamp or wet. There is a problem with perception and it's even in this write up. There's one place where it kind of talks like these are little islands of high land around low land. Folks, everything you see around this, all these houses, all these lots, those are houses and lots that were built in the same floodplain. Same floodplain was mitigated, and in this case there's minimal impact at all in any floodplain. We stayed essentially out of the floodplain except for the roadway sections that we're mitigating 100 percent. On this case, we're talking about a total of 2.1 acres of floodplain that isn't impacted at all, and we're mitigating with 5.1 acres of mitigation and again, with previous plans, the one Clark Whitehill had, 36 percent impact and the one that was before that was over 30 percent impact. So, we're totally staying out of any impacts on floodplains even though floodplains are developable land and floodplain is land that is frankly ideal for recreation. Down at Munden Point Park most of that park is in floodplain. Significant amount of parks, Red Wing Park, is in floodplain. There are lots of parks in the city that have area within the floodplain. It's not the flood way. It's not water flying through there, it's just that what you have is during a major storm event there might be an inch or two of water that's there for a period of a few hours while they drain. That's what a floodfringe and floodplain are. Our recreational areas will generally be passive with some trails but there isn't an intention to put equipment into the park sites for people who live in the community. And, that is not a problem. It's not going to float away when there's a 100-year storm event and you have an inch or two of water around playground equipment. That's my answer. Ronald Ripley: Charlie Salle'. Charlie Salle': Eddie, I think you alluded to it and there is some comment in the staff report about the storm water drainage for the area and the need to address it both here and in the surrounding area. Can you tell us how you have done that? Item #19 & 20 Alcar, L.L.C. Page 5 Eddie Bourdon: We understand completely what the challenges are and that's why this development will meet those challenges. But, frankly, there are problems that are very long ago. Lake Placid had some problems, as did Pine Ridge because they used the wrong flood elevation. So, you got some historical issues there. The City's done a study many years ago that recommends that there be a BMP in this area, a large one to handle. There isn't anything at Oceana at all. All of the water flows south but the water that flows south sheet flows through the ditches to the south. So we got a situation here where there have been historically some problems in both Pine Ridge and Lake Placid because back before of what our standards are today. And those are problems that with this Castleton development and again, the biggest problem with Castleton really was debris in the lines, because I would suggest it was well engineered, but with Castleton there were some problems. I believe they have been totally solved. We had a very rainy period this summer, and they haven't experienced flooding problems in Castleton. Our stormwater does not go in that direction number one. Number two, it will all be handled on site and then will be released using the BMPs that are now required using today's standards. We will actually be helping the process is our opinion. And frankly back in 1997, when this was held up when the original application for Taylor Farm Associates was going through the process, I got a number of calls during the hold up period wanting to know why we weren't going forward because they viewed it, the people who were in charge of the civic league at Pine Ridge, they viewed it as being a positive. It was going to help drainage. Clearly things that have happened since then have been done to clear the lines, to clear the canals and the drainage has been helped and so I'm not going to suggest that this is going to be a panacea but it is clearly going to help drainage and not going to hurt drainage and we're using everyone. My client, our engineers, City, their engineers, Mr. Block and everyone else are well aware of the situation that exists out there and I think everyone is working towards solving it. I think it's been solved frankly, but we're going to be under a microscope and we know that. We are also well aware that there may be a few less lots than this in the end, but at this point and this is not a situation that's been approved for a "X" number of lots. I had put in the proffers originally a maximum of 132 lots. They asked me to take "maximum" out and I said fine because I know we're not going up, we're only going down. If we go down, and I'm not saying that we're going to, but I think that's a possibility. We recognize that. We are fully aware of the challenges that this site presents, but in the big picture, and I don't want this to be overstated, the challenges are that we're not developing like everything around us on similar properties have developed in the past. We met and we believe totally exceeded the requirements that the challenges that are presented to us. Ad in the end, you also went up to a higher end product because of all the open space that you have behind the lots. You don't have lots that back up to each other. Ronald Ripley: Mr. Bourdon, you're not asking for any variance to create any more buildable land. Eddie Bourdon: That's correct. Ronald Ripley: You're staying on the high land that exists that's receiving water now running into the floodplain and of course you have retention that's controlling some of that. Is that correct? Item #19 & 20 Alcar, L.L.C. Page 6 Eddie Bourdon: That's absolute. Our BMP's are on high land. You can't put a BMP in the floodplains. So all of our storm water retention is on high land. None of our homes are built on anything but high land. There is a total of about 10,000 square feet of area of floodplain on this entire project that will be filled a few inches on the corners of some lots. That is it. No houses are built anywhere in the floodplain. And, the City's floodplain ordinance in this part of the city allows up to five percent impact and we're about half of that, and of that, it's almost off of roads in the subdivision. I'll also tell you on Nimmo Parkway, the amount of floodplain impact there is more than 10 times the floodplain impact that we have and ours is minimal. Ronald Ripley: The number that you used for improving Nimmo, is that also include the pump station? Eddie Bourdon: No. That's the cost of the road. Ronald Ripley: So you have a road and a pump station? Eddie Bourdon: The pump station will likely be on site too. We put it in the proffers again just because we just wanted. Staff said they want to be aware. It might be offsite. We're confident that it will be onsite, but that's in addition to the pump station. Ronald Ripley: Will that relieve any sewage issues in the area or is it just for this property and future properties? Eddie Bourdon: I'm not aware of any sewage problem or any capacity problems. I think it's just a service this property. There really isn't anything else out there that's developable. Ronald Ripley: Yes. Barry Knight. Barry Knight: I have a couple of observations. You talk about the 100-year floodplain. That 100-year floodplain could happen back to back, but the average occurrence of this happening is going to be once every 100 years. The floodplain elevation in that area is 6.3 feet. So, if you have 6.2 feet you're in the floodplain inches. If you have 6.4 inches, a difference of 2 inches, you're out of it. So, I understand from where I live, and farming all of our land down here is a whole lower than this but it is a floodplain but a floodplain is not wet area. It's area that could wet in this 100-year storm event. I kind of want to help you clarify that. And on the number of houses, you have 132 homes. You're asking for a permit for 132 homes, but it's possible that when you go in for site review and stormwater management, you could possibly end up with less than 132 homes. Would you think that 132 homes isn't set in stone. That it could possibly be less than that, because of those, but maybe is there any thought you may consolidate some of these lots? Eddie Bourdon: That's a possibility. As this process goes forward, and because of the microscope that this site is under because of the issues we talked about, we recognize that there may be both to make sure that we more than adequately deal with these stormwater issues and again, that's correcting other problems. We have considered that there may be Item #19 & 20 Alcar, L.L.C. Page 7 some consolidation of some of the lots. So, there's no question in our mind that 132 represents the maximum, and the likelihood is that it will be somewhat less than that before it's over with. And, your point about the floodplain is 6.25 feet but it's absolutely correct. So, all we're talking about is a couple of inches of storage capacity. Not swamp land. There are some isolated non -tidal wetlands, that are already permitted to be impacted and were reducing that by 40 percent over that which is already permitted to be impacted. Ronald Ripley: Well, the biggest issue that I heard in the first application that came through here, and the biggest concern that I think that everybody had was the drainage that was coming out of Castleton and the adjoining neighborhoods. And, we're going to hear from some folks out there and I'm sure that they'll testify some way or the other about what has happened here. It is my understanding that's been greatly improved with some retention and the system being cleaned out and some of the things you've said. That's a real important point because it was a real big point then, if I recall, and it may still be a big point. I'm not crossing over this. But we do have some other people to speak. Eddie Bourdon: In conclusion, half the density essentially of what the Comprehensive Plan recommends for this area. Thank you very much for your time. Ronald Ripley: Thank you. Mr. Miller. Robert Miller: Other speakers that have signed up. Irene Duffy. Irene Duffy: Good afternoon. I'm going to pass around two pictures to look at while I speak. Just to clarify this is the area in question. Ronald Ripley: Ms. Duffy? Irene Duffy: What? Ronald Ripley: You need to speak at the podium. Irene Duffy: Oh, sorry. This is the area in question right here. This would be where a part of Nimmo Quay would be to the south of Buckingham and Castleton. And this is one of our retention ponds; our only retention pond in Buckingham. There are others in Castleton. This is Buckingham. Ronald Ripley: Thank you. Irene Duffy: As I said, my name is Irene Duffy, and I'm on the Board of Directors for Buckingham of Castleton and President of Castleton. I'm here representing Buckingham today, which is a village adjacent to the proposed Nimmo Quay. Thank you for this opportunity to speak this afternoon. The Village of Buckingham is opposed to the development of this kind on the attractive land in question for the same reason you've opposed to it approximately two half years ago. At that time, City Council heard and Item # 19 & 20 Alcar, L.L.C. Page 8 understood our concerns regarding drainage and flooding, and turned down the requested proposal. In addition, in a former case, the Planning Staff s recommendation to the Commission was to deny the request. We find ourselves in the same position today. Last month, when this application for rezoning was deferred, the Planning staff s recommendation was for the request to be denied. We wholeheartedly agree with that decision for the following reasons. The neighborhood we live in borders West Neck Creek and that is our storm drainage outlet. The proposed development, Nimmo Quay, will be directing their storm drainage water into the same creek. We are a very wet neighborhood. In fact, city engineers, to their credit, are still trying to workout the kinks for the dry BMP that was proposed and dug to alleviate drainage problems that had been overlooked by the developer. The BMP was created this past winter. The attention was to have a dry BMP that filled up only during large events such as tropical storms or hurricanes or otherwise. It was to be maintained by the City in the fashion of a meadow were fescue would grow, and it would be mowed and maintained by the City. Since its creation, it has not been mowed once for good reason. If a lawn mower were to go in there it would never come out. It would sink into three feet of water that currently stands where the tall wetland weeds have established themselves. It is turning into a wetland. One might argue, well this has been a really wet year and this will never happen again. To this person I would say we had a real wet year not more than two to three years ago and that's 50 percent of the time that I have lived here. If we were to have a serious storm or hurricane now, as it stands, we would have some serious flooding problems. One might argue well, this developer is different. They would do it differently. They really know how to mitigate their rainwater. They won't make any mistakes because they have smarter engineers. To this person, I would say all the prior engineers were reputable and confident. None of them started out saying we really aren't able to do this but let's do it anyway, knowing that things would go wrong. Otherwise, they would have designed the drainage differently or not built here at all. It is foolhardy to ignore what other professionals have experienced. All that we are asking is that the Commission pay very close attention to where they are proposing to build and how much fill would be brought in and where they intend the water to go. The property can be built on can be encompassed as wetlands and floodplain. There is a huge amount of standing water on that land. There is not two to three inches, and I invite you to go back there and look. There are two to three feet of standing water at any given time back there in that area where they want to build. If the water was redirected or displaced it might flood an already existing, saturated community. Can we be certain that more development directly abutting and adjacent to our home will not increase our propensity to flood during a minor or major rainfall. I would like to read a quote that I found on the website belonging to the Virginia Beach Planning Department under the heading of Flood Control. "Wetlands provide flood control by acting as a giant sponge absorbing and holding water during storms. Fast moving water is slowed by vegetation and temporarily stored in wetlands. The gradual release of water released creates erosion potential and possible property damage. When wetlands are filled, areas designed by nature to control floodwaters from Nor'easter extreme high tides, etc, are lost." We believe it is the City's responsibility to put the safety and welfare of its citizens above the interest of private enterprises seeking personal profit and gain. We are asking that the Commission give strong consideration to the recommendation given by the City's Planning staff last month, which brings me to a question that I need to ask. What change was made in the Item # 19 & 20 Alcar, L.L.C. Page 9 application request that would warrant the change in the staff s recommendation? Since the deferral last month, there has been a change in the recommendation made by the Planning staff; so, I'm wondering if the development plans were redesigned or adjusted to avoid disturbance in this environmentally sensitive area. This land is marginal at best and building here not only threatens existing homes but is irresponsible business practice regarding the new home owners of Nimmo Quay. And to Mr. Bourdon, I would say, please tell my sump pump under the house that the water in the cinder block voids are trumped up drainage problems. I thank you very much. Ronald Ripley: Thank you very much. Are there any questions of Ms. Duffy? William Din: I got a question. Ronald Ripley: Yes. William Din: The two pictures that you passed around shows a dry BMP. Obviously a dry BMP is only dry in dry weather but is intended to collect water. Irene Duffy: Well, the dry BMP intention was to be wet during large events. It was not supposed to be a retention pond and it was not supposed to be a retention lake. We have one of those already. William Din: What is your intention, and I don't understand why you're showing us a picture of a dry BMP with water in it when it is supposed to collect water. Irene Duffy: Well, its supposed to be dry most of the time I would assume, if it's a dry BMP, but it has not been dry since it was done. My point is that the purpose of the dry BMP was to retain water that was supposed to go in to the permanent retention pond. It was supposed to be an over fill and it was supposed to happen only during large events such as hurricanes. My point was that it is wet all the time. We have not had a hurricane as of yet, and it already has wetland plants growing in it and it has not been maintained by the city, because we can't grow grass. It doesn't survive because it's too wet. What I'm saying is that if a hurricane was to happen now, or we were to have a large storm, it would flood because that is the last action for us, that dry BMP. William Din: And the retention pond is suppose to have water in it? Right? Irene Duffy: Exactly. William Din: And you're showing us that it does have water in it? Irene Duffy: I'm showing you that it is full and that it is at the top of the drainpipe and that is how it sits most of the time because West Neck Creek is where the outfall is for our retention pond so when it doesn't flow it ends up backing up. William Din: Are you having flooding in your area on the streets? Irene Duffy: No. It's much better now. It's much better now, than it was in the Item #19 & 20 Alcar, L.L.C. Page 10 beginning. We had a lot of flooding due to, as was mentioned, the BMP system and we haven't had a large event either so I think we're maxed out. William Din: We've had some rain events here but during the rainy events what kind of flooding do you encounter there? Irene Duffy: We don't have flooding in the streets anymore. Not since they've fixed the drainage. We do have water in our yards and in my crawl space. I use a sump pump to get the water out of the cinder block voids that are there periodically. William Din: Thank you. Ronald Ripley: Thank you very much. Robert Miller: JoAnn Massey. JoAnn Massey: Good afternoon. I am here to present a petition from the Chartwell of Castleton and Buckingham of Castleton homeowners in opposition of the rezoning. We oppose this rezoning based on our neighborhoods flooding problems and remedies by the City of Virginia Beach that Ms. Duffy spoke to about earlier. Castleton as a whole has always been indated with drainage and flooding issues. We do not think it would be prudent for the Commission to approve this rezoning and ultimate subdivision development of the above referenced property on Items #19 & 20. The flooding and drainage issues of Castleton, we feel would escalate as a new development in that location would permit considerably more drainage into our already overburdened and troublesome dry BMP and drainage system. I do have additional photos of the dry BMP, which has never been dry ever. It's right behind my house. I've got pictures from the very beginning up until a couple of weeks ago. It has never been dry. Here's the petition. Ronald Ripley: Is that a copy of the petition? JoAnn Massey: It is original signatures. Ronald Ripley: Do you have a copy of that? JoAnn Massey: No, I don't. Ronald Ripley: Okay. You may want to get a copy from staff later if you would like to have a copy. JoAnn Massey: Okay. Yes, I would. Thank you. Ronald Ripley: Are there any questions of Ms. Massey? Thank you very much. Will, has a question. I'm sorry. Item #19 & 20 Alcar, L.L.C. Page 11 William Din: It's the same question and you're quoting that there's flooding problems and draining problems in your neighborhood. JoAnn Massey: Drainage problems now. Flooding problems before. The drainage problems being that the BMP and the retention pond flowing into the West Neck Creek which this subdivision would be draining its into West Neck Creek. West Neck Creek backs up, the retention ponds back up, the dry BMP backs up and the dry BMP has never been dry. William Din: Has the dry BMP every overflowed into the neighborhood? JoAnn Massey: The pipe is a very large drainage pipe. It's gotten to be this close to the top of the pipe. My house is right on the edge of that pipe and the water comes right up to my backyard. And, no it has never flooded my backyard but if we were to ever have a hurricane it may. Ronald Ripley: Thank you very much. JoAnn Massey: Thank you. Robert Miller: Christine Capozzohi. Forgive me if I mispronounced your last name. Christine Capozzohi: Good afternoon ladies and gentlemen. I'm Christine Capozzohi. I live at 2408 Windy Pines Bend. My husband and I bought our house and property in October 1987. Next month, it will be 16 years. We love the neighborhood. The first thing that we noticed as we pulled into the entrance, this is a beautiful bird sanctuary. We have signs there. We love being close enough to the ocean and yet still living in the country with all the birds abutting our backyard. We used to have deer come up. In the backyard, we throw out crumbs and whatever and other animals come up. We had no problem. This was just absolutely beautiful. Now that I have brain surgery in 1997, I'm a shut-in. I have vision problems. I have no peripheral vision whatsoever. I can't drive. The only thing that I have daily is to look at the backyard or maybe once in a while be able to cross the street if there's no traffic coming to walk one of my three dogs. When this proposal first came out two years ago, you were talking about them building houses in the woods. But before that we had drainage problems. I'm guessing about five years ago the City came in to help with the drainage problems. There is about a 10 foot buffer in the back of the property, which comes from the end of Windy Pines Bend to the other. I guess I'm talking about maybe 15-18 houses and a brand new drainage system, which helped us so much. I thank Castleton. First of all, while they were building Castleton and they came in and they logged all the woods behind us. They left us a few little skinny trees. Ronald Ripley: Ms. Capozzohi, you're starting to run out of time. Christine Capozzohi: I'm sorry. I just want to say that my property is not of any use to me if they're going to go in there and build and put more houses in. If this is passed by this board, I would like the owner of that property, or the builder to come and buy my Item # 19 & 20 Alcar, L.L.C. Page 12 property from me and they can do whatever they want with that as long as I get a good decent price for my house. I thank you all very much. Ronald Ripley: Thank you all very much. Robert Miller: Angela Snyder. Angela Snyder: Hello. My name is Angela Snyder. I am a resident of Pine Ridge. This zi application was deferred from the August 13th agenda, and I have the same question that the first lady had and that I understand that from this morning staff's meeting that the Commission now supports this application. But, what has changed since the recommendation was for denial at the August 13`h agenda? I am an adjacent property owner and I would like to show you where my house is because it does effect this development. We are right about here and the back of our house will be right behind the new development. We have terrible flooding problems. Our backyard looks like a lake just when it rains. We're not talking about a significant event, just normal rainfall. So, I can imagine that the new houses will have that problem as well. The Comprehensive Plan does identify this area as a Conservation Area. It does contain tidal and non -tidal wetlands. There will be no buffered trees for noise reduction and wildlife retention. There will be a definite negative impact on schools and roads. It was noted in the recommendation of the staff, that Kellam High is currently over capacity by 286 students and that does not take into account other developments that have already been approved and are under construction. That's a real concern. The wetlands will be negatively affected. I heard the lady mention what I was going to quote from your website, but I believe she has already done that about the wetlands being a sponge. I just wanted to stress about the flooding being an issue. The stormwater drainage is very poor. The U.S. Navy also opposed this request. They feel that it's an encroachment on their operations. I have letters of opposition I think have been filed. We do have a petition, which has already been submitted to you. There are 62 names on that. I do have a question of Mr. Bourdon, and I'll be able to ask that? Ronald Ripley: You can state it and we can ask him. Angela Snyder: The question is I heard him say and point to this map which I could not see from my location but there was going to be a row of buffered trees that I wondered where that was going to be? We ask that you deny this request. Ronald Ripley: Okay. Thank you. Angela Snyder: Thank you. Robert Miller: John Snyder. John Snyder: Hello. My name is John Snyder: I've lived on Windy Pines Bend for probably since December. Just moved there. Right there would be my house. According to your plans, these new lots would abut to my back property line. Behind my property line there is a drainage system that the City had installed and I'm not sure when because I Item # 19 & 20 Alcar, L.L.C. Page 13 just moved there. I have a constant problem with water running off the back of these lands onto my yard because my water is trying to go towards that property to go away from my house and my house is flooded. The way I see it with these property lines connecting or abutting to each other as they are in this drawing, if they properly grade the yards of these new homes, the backyard of that house is going to be flowing right towards the back of mine and therefore, I'm going to have more problems. All that I wanted to say about this drain that is back there is the drain sits so far high out of the ground because the ground is so low that when the water does gather around towards the drain, it doesn't get high enough to go into the drain. I've had several people come out from the City, from Public Works, and they tell me they can't access it. So, how are they going to access this when they have these property lines connecting to mine and not only is that drain back there that should be absorbing some of the water and I've been trying for months to try to get my water to go towards these drains so it would be out of my yard and away from my house and it just doesn't do it. It just stands there and goes nowhere. Also behind my fence line is the electrical box and everything else, and I just don't know how with these property lines like this, if anything happens, how are they going to access any of these public utilities. Those are a few of my concerns. Like I said, I'm just a new homeowner trying to keep my yard dry and at least get it running off my property and its just running right back to my property from where it is now. Ronald Ripley: Mr. Snyder, is there a ditch behind your property or is it a drainage pipe that has a drop in? John Snyder: A very large City drain with very big grates in it. I mean a small animal can go through there. I've told my son not to mess around and get his foot caught in it or something. Ronald Ripley: Is it a grading issue you think to get the water to the pipe? John Snyder: Yes. See, that is what I told the people who came out. If you all would grade the land around there a little better, maybe it would flow into that drain. Also in my backyard we have mature trees, very large mature trees. Earlier concept plans in past years from looking through papers, City work, they left a nice buffer with those mature trees between the neighborhoods and with the property lines connecting like that and the utilities there and everything, I don't know how they're going to do that. It kind of doesn't make any sense to me why they would want to connect the property lines. I would think you would leave it zoned between there so you could access the public utilities. I don't know whether they are planning on moving these public utilities. Ronald Ripley: Typically, what you'll find is that there will be a City easement. You have a City easement across the back of your property for which the City should be maintaining that swale. It's their easement. This development will also have to dedicate their City easements for the same reason. We'll have Mr. Bourdon address this. John Snyder: I was just concerned on how they were going to access public utilities that are behind my house and that's going to go between these two. I would also like to say that we moved in there, my fourteen year old son was really looking forward to running Item # 19 & 20 Alcar, L.L.C. Page 14 around through the woods back there and being a boy. He hadn't been able to go back there. It's too muddy. He'll sink up to his knees. They ask me if I would allow them to access that area through my yard. I said bring a tow truck because any heavy equipment your taking through my yard is going to sink. My yard hasn't been dry since I've been there. I have trouble just trying to mow the grass. Those are a few of my concerns. Thank you very much for hearing them. Ronald Ripley: Thank you for coming up. Robert Miller: Jack Reich. Jack Reich: How you doing? My name is Jack Reich. I live at Hunt Club Forest. My property borders the proposed thing. When we get a rain and not even a heavy rain, water comes up four feet. I had that creek and I guess it connects to West Neck Creek at the edge of my backyard. It comes up four feet up from that creek into my yard. I have an embankment. It comes up that embankment four feet. With just the rains that we've had, I mean we haven't had, God forbid we have. It's a lot worse now since they knocked all those trees down back there. I mean in the past, when I guess water would be held in the woods back there. I didn't have that much of a problem other than in a hurricane, of course you would expect it to come up. Now, with just heavy rains like we've had. I mean I'm not exaggerating and we're talking four feet up on my property, up the embankment. I cannot get flood insurance because the corner of my property is in a flood zone. I won't have a house left. I have an above ground pool in my backyard. If that water comes up any higher, it will end up taking my pool out. I mean this is just absolutely nuts. And, they're going to drain into West Neck. It can't handle what's there now. I just can't understand any of this and I don't want to see my property destroyed. I probably lost, and anybody can come out and look, I probably lost two feet of my property in the last two years at the edge. The City doesn't maintain anything. I maintain it. I do my best to keep it up. I keep the grass cut. I keep everything back there. Clean up the garbage that flows from other people's houses down. Thank you. Ronald Ripley: Mr. Miller, has a question. Robert Miller: When you bought the house. When do you buy your house? Jack Reich: 1987. Robert Miller: Wasn't there a drainage easement on your property then and that canal was there at that time? Jack Reich: Yes sir. Robert Miller: Okay. Since you've live there, you're telling me that Public Works have never been out there to maintain that canal? Jack Reich: No. Item #19 & 20 Alcar, L.L.C. Page 15 Robert Miller: That's something we definitely have to have our staff investigate. Jack Reich: I take care of it. Robert Miller: No. Jack Reich: I have never called up and complained. Robert Miller: I believe what you're saying, and I think that could be part of the issue if Your having water rise four feet, perhaps it's blocked up somewhere and it's not properly draining and it's something that Public Works can get out there and do something about it. Jack Reich: Just since they've cleared those trees. Robert Miller: I hear you. Thank you. Jack Reich: You're welcome. Ronald Ripley: Thank you very much. Jack Reich: Thank you. Ronald Ripley: Do we have anybody else? Robert Miller: Jeff Trenton. Jeff Trenton: I've got a couple of points. The first one is goes to the credibility of the proposal. We've talked about this buffer area. On page 11, the Planning staff says, "it should be noted that one particular valuable aesthetic natural resource is being eliminated with the current proposal is the existing 40 to 50 foot wooded buffer along the northern boundary of the site adjacent to the neighborhoods of Castleton and Pine Ridge." It kind of contradicts what Mr. Bourdon says. I would assume the Planning Commission is objective on this because it goes to the credibility of the proposal. The major issue I'd like to address is has everybody seen the newspaper today? You see the newspaper today, massive headlines "Super Hornets Coming to Virginia Beach." We got the squadrons. Massive headline is going to be a lot louder. Headline basically today is "Super Hornets coming to the Beach." It's big, the biggest story in this town for quite a while. Let me suggest what tomorrow's headline can be if you make a mistake on this. "City Council Approves Additional Residential Development Despite Navy Objections." Navy says new development will encroach on air operations. That's your headline. I've heard that sort of debate when I was on the Castleton Oceana Liaison Committee. The Navy would always marvel that the city would continue to build even when the Navy was saying that there are serious noise level issues and other issues concerning flight operations. And they would marvel that the city could continue to do that. Now especially today when they say we're going to get the Super Hornets. When they say they're going to be much louder. When they say they're going to have training Item # 19 & 20 Alcar, L.L.C. Page 16 operations with new aircraft, to have additional building to approve the next day, additional residential construction when the Navy tells you that you shouldn't be doing it, you're going against what the Navy says, and were saying that we're a Navy town and were patriotic. However, we're going to go for the buck and do the building. That is what it seems to me. I guess that is all that I'm going to say. Robert Miller: Where do you live Jeff? Jeff Trenton: I live right there in Castleton. Robert Miller: Can you point to it? There's a pointer right there on the table. Ronald Ripley: The little black thing. Jeff Trenton: I'm right here. Robert Miller: Okay. How's your quality of life there? Jeff Trenton: It's nice to have the woods behind. Robert Miller: A nice neighborhood? Jeff Trenton: It's a nice neighborhood. The noise is an issue. Robert Miller: Really. Jeff Trenton: Especially the question of when the Super Hornets being louder. Because we know Navy guys who fly and say yeah, the Super Hornets are going to be a lot louder. Robert Miller: Every time you see one of those Navy guys making all that noise, why don't you thank him for the freedoms you have. Thank you. Jeff Trenton: The Navy is the one who's saying your encroaching on their operations. Not me. Robert Miller: Thank you. Jeff Trenton: Thank you. Ronald Ripley: Is there anybody else? Robert Miller: No sir. Ronald Ripley: Okay. Mr. Bourdon. Eddie Bourdon: Where do I begin. I think you already picked up on the fact that the BMP that is holding water is a BMP that is working given the fact that we had a record summer for rainfall and the first young lady who spoke on it, I'll be happy and be candid Item # 19 & 20 Alcar, L.L.C. Page 17 and say that the flooding problems are corrected. They're not flooding. Frankly, depending upon the size of a hurricane, if we have a hurricane, there are a lot of places in the City of Virginia Beach, a whole lot of places that are going to have flooding on a temporary basis and for the flat area coastal plain that we live in, that's an inevitability. There's nothing anybody can do about that if we have a hurricane. You can't design a storm drainage system for a city based on a hurricane event. And, we haven't nor have any other coastal cities that I'm aware of but we certainly in this case, being that we are downstream of Castleton, we're not going to be putting water upstream. What we also will be doing is as you all know, and as we've talked about, is our BMPs all have to be in upland areas. They have to be designed and engineered so that we are in not any way shape, or form increasing the rate of flow into that drainage system in a storm event. And, again, Castleton is the latest development that had experienced some problems. They developed, and a significant amount of their lots are in the floodplain. None of these lots are in the floodplain. The other development, Pine Ridge specifically and Lake Placid up the upstream, they have houses, many, many of them which were built in the floodplain but the flood elevation used to calculate their height. was too low, which is the issue with the runoff. All of this is being addressed and has been addressed and we will be addressing it so that we will not be adding in anyway to anybody's water problem and that's what this plan represents, because it is such a minimal amount of development with all of the sponge left unimpacted. With regard to Ms. Snyder, she brought up a number of different things. The buffer behind here, first off all, behind their houses there is a 30- foot easement between our lots and their lots that would be maintained. We also maintain wooded area along the entirety property line with the neighboring properties and of that entirety, there are 65 lots that adjoin us, this is one section. Ronald Ripley: Mr. Bourdon, you're over your time. But you're answering our questions. Eddie Bourdon: I knew you were going to ask that question. Ronald Ripley: So consider your questions and answers. Eddie Bourdon: Okay. I'll consider mine questions and answers. We got this section here where there is a wooded buffer because it's the wooded buffer that we maintain. There are trees on the back of these lots. If you notice, these lots are larger lots than those in the neighborhood. There are a number of trees on these lots. There are trees on our property all the way around. Most of our boundary with the neighboring subdivisions, all of these lots go directly to our property line. We have left a wooded buffer and that buffer will remain. What the staff was commenting about is that in the 255 lot plan, our lots were not to the property line but we're still going to maintain on the back of these lots. Not 50 feet although in the case of these seven lots here to the east, there's already 30 foot buffer that will remain and that is an underground drainage easement and we will be able to add another 15 to 20 feet to that. So basically, about a 40 to 50 foot buffer that will occur here. This area here the buffer will be less but these lots that we adjoin here. We have 10 lots that adjoin a total of eight above us. We'll be probably able to leave about 20 to 30 feet of trees on our property in addition to roughly Item # 19 & 20 Alcar, L.L.C. Page 18 the same amount of trees that exist on the back of those lots. Elsewhere, there is no impact at all in terms that trees remain adjacent to the rest of the properties. Ronald Ripley: While you're on that subject Mr. Scott, it wouldn't be appropriate for this applicant to size the drainage pipe along those adjacent property lines to service water coming off of Castleton for example but it would be appropriate for the city, when they're in there doing the development to get their grades right if the grades have gotten filled in or what not so that we get two drainage systems that are getting the water out of there. Would that be appropriate to say? Robert Scott: Really, you have to leave that up to the design engineer and what concept they're going to use to drain it. It wouldn't be inappropriate to do. Ronald Ripley: Would it be inappropriate to oversize it to take other water? Robert Scott: It's not a question so much of oversizing as it is of grades. The problem is the land is very low and very flat. The grading issues are most of the problems I believe. I certainly don't want to rule anything out like that, but at some point, someone is going to have to figure out how to drain this land and their concept might possibly include that. Ronald Ripley: Okay. Eddie Bourdon: You'll also notice and it's obvious to everyone, and I'm going to show you, that there are lots all along here, lots all along here that come to our property line and had our property line were a floodplain, what does that tell you? These lots were all built in the floodplain. And, that's a reality. The houses of a lot of these people that adjoin us were in the floodplain and that's not happening on our property. We're not doing anything as far as building houses in the floodplain that exists around us. That's the key to this whole situation is that we're not going to be creating any problems for anybody else and our stormwater off of our impervious surfaces go into BMPs that we're creating on our property to hold that water on our high land not in the floodplain. So we're not affecting the flood storage capacity or the rate of flow in any way in the floodplain. Eugene Crabtree: I think you just answered my question. Your three stormwater management facilities should actually improve the wetlands that is now draining to people's property by holding it on your own property. What they say is running form the woods now and having problems with that when you put these in that should correct some of their problems because then it will not run there but will be held in your stormwater management. Eddie Bourdon: We fully believe and understand and appreciate the fact and it is a reality given the history of these other developments that we are going to be looked upon to not only make sure that we have no impact but to probably help to alleviate some of the existing impacts and we are well aware of that and prepared to address that challenge. Eugene Crabtree: That's what I was asking Item # 19 & 20 Alcar, L.L.C. Page 19 Ronald Ripley: Jan Anderson. Janice Anderson: On the wooded buffer that you said you would leave there, that is a drainage easement also, is there any problem with keeping it wooded? You said that you might have to take a tree or two but it's not going to be clearer. Eddie Bourdon: Those mature trees are the ones the owner left and didn't log when the rest of the property was logged because they provide that buffer. The answer is I don't believe, we hope there aren't any trees that have to be taken out. It is our desire to leave that buffer, but maybe some that do, but they will be the ones farthest away from the shared property line. They won't be on the shared property line. Again, unless for some reason that we're not aware of dealing with the existing drainage improvements or the City drainage improvements that would have to necessitate some removal. We're not anticipating that will be the case. Janice Anderson: Is there anywhere the proffers that you can make just say maintain the wooded buffer. It wouldn't be specific. Eddie Bourdon: We could between now and City Council we could put on the plans a note about the wooded buffer that exists. That can certainly be done. In terms of the proffers themselves, I'm not sure from what other developments such as wording that anyone is really going to be comfortable with. Barbara is not here. Barbara Duke and I have had discussion a lot lately. I think that she and I'll just quote her for the staff, I think they're more comfortable with some type of a note on the plan itself as opposed to trying to come up with words in a proffer to deal with that. I think that is an issue that we could address by putting a note in to the proffer that trees in this area are to remain. Janice Anderson: The wording in your proffers. Eddie Bourdon: You're referring to the plan. Janice Anderson: To the plan. Ronald Ripley: Are there any other questions? Charlie Salle' and then Gene. Eugene Crabtree: Mr. Bourdon, in reference to the gentleman that was complaining about the aircraft, if I understand the position of this property, this property is not in the actual major flight plan of take off or landing and the crash zone is just the noise zone. So from a safety standpoint of view we don't have it in direct line of any of the major runways and therefore the noise level is the only question? Am I correct? Eddie Bourdon: That is correct. Ronald Ripley: Charlie. Eddie Bourdon: We left plenty of room for a jet to crash with all the open space on 74 percent of the property. I hope none ever do. Item # 19 & 20 Alcar, L.L.C. Page 20 Eugene Crabtree: I just want to make sure that you're not in that direct crash zone. Eddie Bourdon: No, were not even near a crash zone. We surrounded by residential development at three half units per acre. Eugene Crabtree: Just clarifying it that's all. Charlie Salle': My experience with crash zones is when an airplane flies over your head you're in a crash zone. Eddie Bourdon: With all this conservation area we're setting aside, there is plenty of room and God forbid if one every came down. We hope they wouldn't come down in any of the neighborhoods that surround us but it doesn't exist. Charlie Salle': I had a couple of questions and Jan explored part of that on the buffer zone, I noticed that the wooded buffed areas is across the actual platted lots and I guess to what extent is the subject lot owner bound to keep that area wooded? Eddie Bourdon: There certainly is an ability to put in an easement on the property. It could be a Homeowners Association that's going to own not only all the open space and the vast majority of our property that abuts to 65 lots in a neighborhood would belong to the association and so there is the ability to put an easement to allow the association to enforce not only on their own property but on the back of the 18 lots that we have that adjoin other lots. Charlie Salle': That might be one of the responsibilities. Eddie Bourdon: I would agree Mr. Salle', and I don't think you would have any problem with putting in a condition. The issue simply would be the depth of the easement on any of the lots. Charlie Salle': And the other question deals with drainage. This project is downstream from the areas that we had people had concerns about it. Is the system of drainage connecting the existing drainage that's will be flowing down to your project? Eddie Bourdon: There are some drainage ways that come through and it's natural drainage that clearly comes through here. That's what all the floodplain in these areas that we preserved that is directly adjacent to their lots that were created in the floodplain. That's why it is important and critical and that's why we had stayed out of those areas with our development, so that we're not impacting the natural drainage ways with regard to the manmade drainage ways. Yes, they do also traverse our property, and we will be enhancing those to some degree. Primarily, we're going to make sure that we have no negative impact on those in terms of adding in any way to flow in those drainage ways in a storm event. We're also providing a BMP for Nimmo Parkway on some of our high land, right out here at the entrance. Right here were adding a BMP that will be used for Nimmo Parkway again, so there isn't any impact on the drain when that road is built. We Item #19 & 20 Alcar, L.L.C. Page 21 do have drainage that comes across the property. There's natural drainage that comes across the property that we are not going to impact. Ronald Ripley: Kathy and then Joe. Kathy Katsias: Mr. Bourdon, are you and the developer is willing to reduce the amount of lots depending on the storm water drainage system. Is there a number that would make this economically not feasible by the production? Eddie Bourdon: That whole issue Ms. Katsias is going to be dealt as we go through the engineering, which is in this case and that really is the answer. I believe. I don't want to speak for staff, but I think the staff s comfort level with this proposal was enhanced by face to face meetings with our engineers and our clients, and we understand and have bent over backwards already and will continue to do the same to make sure that there is no impact on drainage on the property surrounding us. We walked into this knowing that the problems that have existed and to some degrees still exist, although I think they have been in a large part been solved, not totally, and we recognize that we may lose some lots in that process. But, that's an expensive process. All that detailed engineering on individual and grades and what have you, it's going to be a process that we're recognizing is going to take some time. And, I said before, we don't expect any of these houses on these lots to be on line or for sale for two years because we know that process isn't going to be a quick one. As far as a number, no, there is no way we can sit here and say it will be 120 versus a 132 and we're not in a position to know that at this point. Ronald Ripley: Joe, did you have a question? Joseph Strange: Yeah. Some of the opposition, they expressed concern that even though your saying that these BMPs are going to be on high property that maybe this isn't going to really work. Who do they go to and get assurances that your plan will work so they could feel comfortable and not feel like when they walk out of here that this gets passed that they're going to be protected. Eddie Bourdon: I think they can walk out of here and walk out of the Council meeting, because they will be hearing the same thing there, knowing that every engineer and Public Works of the City is well aware, and they've been aware for a number of years about the issues that have been brought forth and that these plans are going to be checked, doubled checked, tripled check to make sure that they will in fact they will do what in fact what we said they will do. They will not be adding to their burdens, so to speak, that exist. And, the City has studied this area extensively. We're looking at property that we are only developing on, essentially on the high land, and that's one assurance that I would take out of here. Number two, the fact that everyone is going to be scrutinizing it very carefully to make sure that we alleviate the problem. The problems that have existed, have existed in large measure because of previous errors that aren't going to be repeated again in terms of using incorrect information, in terms of what the floodplain was back in the 60's with Lake Placid. Our knowledge is so much greater now then it was in the 1960s. Item #19 & 20 Alcar, L.L.C. Page 22 Joseph Strange: If you look under Public Facilities and Services it says, "city water is not available to this development. Plans and bonds are required for the construction of a new pump station off -site of the sewer system." And then if you look at Proffer #7, "when the property is developed, the party of the first part shall extend public utilities, to service the subdivision, including the possible construction of an off -site sewage pump station." How do these two relate to each other? I don't quite understand it myself. Eddie Bourdon: I believe they say the same thing. There is City water, and City water will be extended to the site at our cost. City sewer same thing, will be extended to our site at our cost. The only question there is whether the pump station will be on this site or off —site, and we are now confident that it will be on site. Like I said, it will be at our cost. There is no cost to the taxpayer at all. City water and City sewer have to be extended at the developer's cost to the property and they're available to the property. Joseph Strange: So what plans and bonds are required for the construction of the new pump station? Does the City have to do that? Eddie Bourdon: Yeah. When this gets to subdivision approval. It just lets somebody know, if they're a developer and they're naive, that they're going to have bond what they're going to have put that in. Joseph Strange: So the City doesn't have anything to do with that. Eddie Bourdon: No sir. Joseph Strange: I didn't quite understand myself. Ronald Ripley: Okay. Are there any other questions? Mr. Bourdon, thank you very much. Eddie Bourdon: Thank you. Ronald Ripley: Let's open this up for discussion. Mr. Miller. Robert Miller: Well, since everybody else is a drainage engineer, I guess I can be one. A couple of things that were said today that need to be clarified. Number one is that West Neck Creek is a creek that drains a large part of our city, but it is also connected to both, ironically, the Chesapeake Bay and to Back Bay and it is effective in both directions. It's very unique in that sense. It's a great waterway. It's a longitudinal to the park, as we all know. It's a wonderful place to go and spend some time. There are some issues that come up, and that is trying to maintain it and make sure that it stays clear of debris. Public Works, I think, has done a very good job, but over the years, it's difficult to either stop a tree from growing, or if one fell down, to know that it fell and go out and clean that tree up. I think that's been part of the issues that have dealt with West Neck Creek. The creek, itself, carries a large amount of water during a rainfall event. The drainage in Castleton, the drainage in this subdivision, to some extent, the drainage in Lake Placid are being, what I called "detained" which means it's being slowed down and let lose after Item # 19 & 20 Alcar, L.L.C. Page 23 the storm event has passed. That's the way things are engineered during computer models, and I can assure you there have been any number of, literally hundreds of models done on this particular creek to make sure that what is being done in this area is going to be done correctly and done with conscience towards not only the development that's going on but the other developments around it. Just saying that means that the storm drainage systems have presented every confidence that the City engineers are going to make sure and the developer's engineers together with those items that were talked about today from yard drainage to canal system that's not quite working to worrying about how it's going to flow into West Neck Creek. This water is already going into West Neck Creek, and the water that will be drained from this property will not be in excess of what's already going there. So, there's no net gain. That's part of the rules of the development that has to occur. One lady mentioned, I think Ms. Duffy that there was water under her house. I just want to make sure, and I think she knows this, but that is a builder's problem. That's not related to the development. There are duct valves on the Castleton outfall system at the primary outdoor fall for the Buckingham Village. A duct valve actually opens when the water in the creek is lower and stays closed when the water in the creek goes up. That was done supposedly to stop water from coming back into the subdivision. If in fact, the water is staying in the subdivision in that storm water management facility too long, then it may be that valve is not working. I would suggest that Public Works get involved to make sure that they get that straight. The BMP that was supposed to be dry, but remains wet and the month of May, I think we had 20 days of rain. We've probably had the wettest summer we've had that I could remember. And, even though the events may look like they are not that severe, the continual rain causes the ground to be saturated and all of us, with any sense to my yard, to your yard to anybody else's yard know that after this summer. That would also lead to the fact that the BMP was built dry, otherwise it wouldn't have been built. It was built and it was dry. So, it was dry at some point. And the last thing is the canal system, I would suggest that is on the eastern part of this property next to the Hunt Club, and it goes across the southern portion of the property. I have walked that canal and I know that canal is heavily encumbered with existing trees and growth and other things. And maintenance probably does need to be run on that; so, I would ask that Public Works do that. And stating all of that, I think the developer has done a very unique job of backing off the previous proposals that we've seen. I believe staff believes the same, and the proposed development is one that I personally feel has achieved what all of us were asking for, and that is the honoring of the environmental situation, the honoring of the drainage situation. I do like the idea of putting in the additional condition of an easement for the buffered trees. I think that assures the people that have been here that are worried about that. Let me tell you that's a "Catch 22" when you talk about the drainage issues, because if we save the trees you can't change the grade around the trees so that may be a little bit of a drainage issue which needs to be balanced like Mr. Bourdon indicated I think with good engineering while we're environmentally sensitive to saving these trees. And, the last thing I want to say is I personally very glad that the Navy put the additional F-18As here and I hope they fly over my house everyday and every night. Thank you. Ronald Ripley: Are there any other comments? Bob said it pretty well. I would like to comment on the plan itself also because I was on the Commission when it came through the first time. When you flip that board over and you flip it over to this side, it's like a Item #19 & 20 Alcar, L.L.C. Page 24 world of difference. Looking at the density, and if you take the developable acres and you divide it to what was proposed you probably get four to the acre. I think the original plan got to three and a half because there was a lot of variances required in order to create more land within the floodplain in order to achieve the number of the density. This case, the developer is not asking for any variance. The variances that we're working with is the land that's there for the most part with the exception of some of the roadways that have to get through there, and I appreciate, quite frankly, this type of exhibit because you get to see the whole floodplain in a much broader sense than some time the way it's presented, which is very hard to see the whole picture. And this is a very helpful way to view what's going on. I think Bob probably covered most everything that I was interested in talking about probably and then some. I think the fact that the developer has recognized the fact that in working with Mr. Scott, his department, there may be more adjustments. That's very appreciative from the Planning Commission's point of view, because I'm sure there's going to be some nips, picks and tucks, and once you get down on the ground with the engineers and actually measure the inches you're going to find some differences. You may just find, and hopefully that works out well for the developer, if that's the case. But, when it comes down for a motion, I'm going to support this. I think it's a good plan. I think it's very creative, and it as Mr. Miller said "it's environmentally sensitive to this piece of land" and this land is a developable piece of land and you have to recognize that. It's 72 acres. Is that correct? Yes Barry. Barry Knight: I agree with what Ron and Bob both say. We have a unique waterway in West Neck, and by being in the Southern Watershed Management Area, I would assume that the largest majority of the water is towards Back Bay. And with the trees over West Neck Creek, we're subjected to a wind tide, which means when wind blows out of the north, we get a low tide. When the wind blows out of the south, we get a high tide. And, if you have a south wind, it backs the water up here, and then if you have a rain event, which is usually associated with a south wind, then the water can't get away. So, I know the residents may not have the exact answer that they're looking for but their voice was heard today because Public Works will get a message that they need to go out there and see about these trees that are over West Neck Creek or some of the tributaries of West Neck to try and get them out of here so the water will flow out of this area a little better. I have a good comfort level with that done that this site will actually improve the drainage on the surrounding neighborhoods so I'll be supporting this project also. I wouldn't mind putting that in a way of a motion also. Ronald Ripley: Do you want to make that a motion at this point? Barry Knight: If you have more discussion. Ronald Ripley: Okay. William Din: I'd just like to make a comment also. I think this development is a environmentally sensitive development, and I know the speakers that came up here in opposition of this may feel that they don't see how this is being environmentally safe to their area, but if you look at the map, the Castleton area, the Pine Ridge area is built right up to the property line. If those areas were developed with the same environmental Item # 19 & 20 Alcar, L.L.C. Page 25 concerns of these wetlands, you probably wouldn't have the houses butted right up against this property level. A lot of these houses wouldn't be there, because they are built in the flood areas or the wetlands that this development is trying to avoid. And, that's why those areas are lower. You see the line. You see the development of Castleton and Pine Ridge, come right up to that line. Well, wetlands just didn't stop there. And, so there is a lot of thought to the environment and the concerns and how this development is built around the wetland areas and I agree with the comments with the drainage. I think it will improve the drainage overall in this area and I to will be supporting this. Ronald Ripley: Are there any other comments? Mr. Scott. Robert Scott: I feel compelled to say one thing. You have our staff report. My comment has to do with tree preservation. Our staff has got a lot of experience in recent times by dealing with very difficult issues like this. I must say that I would not encourage anybody to very optimistic about tree preservation on this property for two reasons. Number one, you have no tree preservation proffer. A note on the plat isn't going to do any good. By the time this is put to record most of the trees will be gone anyway. Number two, even with a tree preservation proffer, tree preservation and drainage are sort of development opposites of one another. There's going to have to be some significant adjustment to grades in this area, and to adjust grades, you've got to clear trees. I don't want to labor the point by identifying properties for you that you've dealt with and we've dealt with recently where we've had significant tree preservations proffers on them. They're not that effective in preserving trees. The development will sometime necessitate that the trees be cleared out, and this is a piece of property, with the size of the lots that are there and with the necessity to put drainage as a top priority, same degree of manipulation I suspect is going to have to take place. I think that I would not be that optimistic about the ability to preserve trees. In the interest of fairness, I just need to say that. Ronald Ripley: I think that's a very practical statement. Charlie Salle': I have a comment. Ronald Ripley: Charlie. Charlie Salle': Bob, having brought that up, I often observed, that it seems to me that's actually what happens. You have to grade lots even where there's not even a particular drainage problem, but you grade them to meet City standards even if the drainage is not an issue, and as a result of that, the trees have to go. And, I often thought that as a property owner that I would rather have the trees on the lot and drainage problems and puddling on my property then see the trees go, but it seems to me that's just the opposite than most people. We've heard a lot of comments about standing water on people's lots and people just don't tolerate it. And, I think that message comes across so loudly for the City that they set the standards so that you have to create these standards to deal with the drainage. And, I think probably we're our worst enemy when it comes to these issues. Ronald Ripley: I don't disagree. Okay, Barry, did you want to make a motion here. Item # 19 & 20 Alcar, L.L.C. Page 26 Barry Knight: I'll make a motion on agenda Items #19 & 20, Alcar, LLC, that we approve the application as proffered. Ronald Ripley: We have a motion to approve. Do I have a second? Seconded by Kathy Katsias. Is there any further discussion? Then, we would like to vote. AYE 10 NAY 0 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY KATSIAS AYE KNIGHT AYE MILLER AYE RIPLEY AYE SALLE' AYE STRANGE AYE WOOD AYE ABS 0 ABSENT 1 Ronald Ripley: By a vote of 10-0, the motion carries. ABSENT Item Y--0.10. PLANNING ITEM # 52430 Attorney Eddie Bourdon, Pembroke One Building, 5'h Floor, Phone: 499-8971 represented the applicant, and noted the attendance of Joe Bushey of Clark Nexsen, Douglas Talbot and Alan S. Resh, re the application for infill development (Nimmo's Quay) of no more than 132 high end single-family homes located on 112 acres of land, 73 of which are developable land. The proposed density is no more than 1.8 units per developable acre. This development is surrounded by 6 existing residential neighborhoods. The applicant has agreed to construct two (2) lanes of Nimmo Parkway from the Fire station all the way to this property at a cost of approximately $900, 000. Sewer and water, at no cost to the city, will be provided. Douglas Talbot, advised the areas of the wetlands and floodplains have been designed. Under thirty (30) homes are located in the 70 to 75 decibel area. Copies of a map indicating the decibel areas were distributed to City Council. The following registered in OPPOSITION: Captain Tom Keeley, Commanding Officer - Naval Air Station Oceana, 1750 Tomcat Boulevard, Phone 433-3158, Phone: 433-2922, advised this development lies within 3 miles of Oceana and falls underneath the AICUZ map adopted by the Navy and the City. The issue is encroachment and Oceana is the number one encroached upon installation in the Department of Defense. Single event noise will be louder in this neighborhood which lies directly beneath the departure corridor to major Runway 23. Rear Admiral S.A. Turcotte, U.S. Navy, Commander - Navy Region Mid -Atlantic, advised this application may appear as a 'pebble ", but if one considers the impact of several pebbles (which are under consideration), it becomes a bolder. All of these will be examined under the Joint Land Use Study, what areas should be or should not be developed. Upon motion by Councilman Reeve, seconded by Councilman Wood, City Council DEFERRED INDEFINITEL Y to allow completion of the Joint Land Use Study (JLUS) applications Ordinances upon application ofALCAR, L.L.C. for a Conditional Change of Zoning and Conditional Use Permit: ORDINANCE UPON APPLICATION OF ALCAR, L.L.C. FORA CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG-1 AND AG-2 TO CONDITIONAL R-10 A ND, Ordinance upon Application of ALCAR, L.L.C. for a Change of Zoning District Classification from AG -I and AG-2 Agricultural Districts to Conditional R-10 Residential District on the north side of Nimmo Parkway (unimproved), west of Rockingchair Lane (GPIN 2404573796; 2404564943; 2404371633). The Comprehensive Plan recommends use of this parcel for residential uses at or below 3.5 dwelling units, per acre. The Comprehensive Plan also identifies the site as a Conservation Area where land -disturbing activities should be avoided, mitigated or, under certain conditions, prohibited. DISTRICT 7 — PRINCESS ANNE March 23, 2004 -81- Item V-0.10. PLANNING ITEM # 52430 (Continued) ORDINANCE UPONAPPLICA TION OFAL CAR, L.L.C. FORA CONDITIONAL USE PERMIT FOR OPEN SPACE PROMOTION Ordinance upon Application ofALCAR, L.L. C. for a Conditional Use Permit for Open Space Promotion on the north side of Nimmo Parkway (unimproved), west of Roekingchair Lane (GPIN 2404573796; 2404564943; 2404371633). DISTRICT 7 -- PRINCESS ANNE Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Margaret L. Eure, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Richard A. Maddox Due to illness, Councilman Maddox left at 7:58 P.M. Council Lady Wilson DISCLOSED Pursuant to Conflict of Interests Act § 2. 2-3115 (H) her husband is a principal in the accounting firm of Goodman and Company and earns compensation which exceeds $10,000.00 annually. Goodman and Company provides services to ALCAR, L.L.C. Her husband does not personally provide services to ALCAR, L.L.C. The City Attorney has advised that although she has a personal interest in the transaction, because her husband does not personally provide services to ALCAR, L.L.C., she may participate without restriction in City Council's discussion of, and vote on, the ordinance, upon disclosure. Council Lady Wilson 's letter of October 28, 2003, is hereby made a part of the record March 23, 2004 2404 Windy Pines Bend Virginia Beach, VA 23456-3954 March 16, 2006 Department of Planning Current Planning Division Planning Evaluation Section 2405 Courthouse Drive Building 2, Room 115 Virginia Beach, VA 23456-9040 Dear Virginia Beach City Council, As property owners adjacent to the subject site, we strongly oppose the application of ALCAR, LLC, for a change of zoning classification from Agricultural to Residential in order to build Nimmo's Quay for the following reasons: < The Navy does not support the rezoning as it would be seen as encroachment upon operations at Naval Air Station Oceana. < Traffic will increase dramatically in an already congested area. < Kellam High School is currently way over capacity. < Drainage issues affecting our property have still not been addressed. < The natural resource of mature trees and mature vegetation will be eliminated. < The Comprehensive Plan identifies this area as a Natural Resource/Conservation Area and states that land disturbance should be avoided, mitigated or in certain circumstances, prohibited. < More than half of the land is below the elevation of the 100-year floodplain level and land disturbance and fill are restricted by the City's development ordinances. < Extensive areas of wetlands would be disturbed. Although we strongly oppose this rezoning request, if this project is approved, there should be more open space between our property lines (along Windy Pines Bend) and the property lines of the proposed development. At this time, the city has no access to storm drains in this area. Although we continue to pay for city services, including storm water management, we, not the city, have been maintaining the storm drain behind our house, keeping it free from debris so that the drainage from our property is somewhat bearable. We brought up this issue at the Planning Division hearing in 2002 regarding this application and were advised that the matter would be reviewed. Of course, if there is no access available, it is difficult for this problem to be addressed. In addition, the proponent should be required to fund and build four lanes rather than two lanes of Nimmo Parkway. At least that way, the citizens of Virginia Beach could see some minimal benefit. The existing two-lane roads in this area (General Booth/North Landing near the courthouse and Holland Road near Kellam High School) cannot handle any more congestion which would be caused by the addition of this development and the many others already approved. We are also concerned that a new high school has not been proposed and/or budgeted knowing how overcrowded Kellam High School is. More than eighteen portable units and having students eat lunch at 9:09 in the morning are not acceptable solutions to the overcrowding problem. As life-long citizens of Virginia Beach, we feel that our tax dollars could be put to better use by improving City Services in this area which is vastly growing. It also seems that most of our tax dollars go to fund projects at Town Center and the resort/oceanfront area. These projects are of maximum benefit to the tourists that visit our city, but are of minimal benefit to the citizens of Virginia Beach. We hope that these issues will be addressed and feel that the public's voice has not been heard in the past (such as the 3 I't Street Park issue). In the future, hopefully we can all work together to make this city a great place to live. Because we really want to be "living the life in Virginia Beach", but not paying for someone else's. ,Sincerely, f,;411 Johns Angela Snyder In Reply Refer To Our File No. DF-5676 CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: March 17, 2006 TO: Leslie L. Lilley DEPT: City Attorney FROM: B. Kay Wilson DEPT: City Attorney RE: Conditional Zoning Application; ALCAR, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on March 28, 2006. 1 have reviewed the subject proffer agreement, dated March 1, 2006, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ks Enclosure cc: Kathleen Hassen ALCAR, L.L.C., a Virginia limited liability company JAMAST, INC., a Virginia corporation TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 1st day of March, 2006, by and between ALCAR, L.L.C., a Virginia limited liability company, Grantor, party of the first part; JAMAST, INC., a Virginia corporation, Grantor, party of the second part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the third part. WITNESSETH: WHEREAS, the party of the second part is the owner of a certain parcel of property located in the Princess Anne District of the City of Virginia Beach, Virginia, containing approximately 48.27 acres and described as "Parcel One" in Exhibit "A" attached hereto and incorporated herein by this reference, which parcel, along with Parcel "Two" and "Three" is herein referred to as the "Property"; and WHEREAS, the party of the second part is the owner of three (3) certain parcels of property located in the Princess Anne District of the City of Virginia Beach, Virginia, containing approximately 112.3 acres and described as "Parcel One", "Parcel Two" and "Parcel Three" in Exhibit "A" attached hereto and incorporated herein by this reference, which parcels are herein referred to as the "Property"; and GPIN: 2404-37-1633 2404-57-3796 2404-56-4943 (Portion ofl PREPARED BY: SYK£S, BOURDON. AR£RN & L£VY. P.0 1 PREPARED BY: SYKES, ROURDON. F AIIERN & LEVY. P.C. WHEREAS, the party of the first part is the contract purchaser of the Property and has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classifications of the Property from AG-1 and AG-2 to Conditional R- 7.5 Residential District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the R- 7.5 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, 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 covenant and agree that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and 104 PREPARED BY: SYKES. BOURDON. AHI RN & LEVY. P.C. persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantee, and other successors in interest or title and which will not be required of the Grantors until the Property is developed: 1. When development takes place upon that portion of the Property which is to be developed, it shall be as a single family residential community substantially in conformance with the Exhibit entitled "CONCEPTUAL SUBDIVISION PLAN OF NIMMOS QUAY, VIRGINIA BEACH, VIRGINIA-, dated December 12, 2002, prepared by Clark-Nexsen, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Concept Plan"). 2. When the Property is developed, approximately 22.7 acres of parklands, lakes and recreation areas designated "Open Space" on the Concept Plan shall be dedicated to and maintained by the Property Owners Association. When the Property is developed, playground equipment and neighborhood park improvements meeting the City's Department of Parks and Recreation Standards shall be installed in the four (4) areas designated "PARK" on the Concept Plan. 3. When the Property is developed, approximately 39.5 acres of land designated as "Conservation Area" on the Concept Plan shall be dedicated to the City of Virginia Beach for inclusion in the West Neck Creek Linear Park. 4. When the Property is subdivided, it shall be subject to a recorded Declaration of Protective Covenants, Conditions and Restrictions ("Deed Restrictions") administered by a Homeowners Association, to which membership by all residential units is mandatory, which shall, among other things maintain the Open Space areas. S. All residential dwellings constructed on the Property shall incorporate architectural features, design elements and high quality building materials substantially similar in quality to those depicted on the four (4) photographs labeled "Typical Home Elevations AT NIMMOS QUAY" dated December 12, 2002 which have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning. Any one story dwelling shall contain no less than 2500 square feet of enclosed living area excluding garage area and any two-story dwelling shall contain no less than 2600 square feet of enclosed 3 PREPARED BY: MSYKES. BOURDON. A14MN & LEVY. P.0 living area excluding garage area. The front yards of all homes shall be sodded. The Deed Restrictions shall require each dwelling to have, at a minimum, a two (2) car garage. 6. When the Property is developed, the party of the First Part shall construct a two lane section of Nimmo Parkway Phase V-A CIP 2-121 in accordance with the Virginia Department of Transportation's engineering standards for the roadway, within the existing Nimmo Parkway public right of way extending east approximately 2560± feet from the entrance to the subdivision to connect with the existing improved Nimmo Parkway road section. 7. When the Property is developed, the party of the first part shall extend public utilities, to serve the subdivision, including possible construction of an off - site sewage pump station. 8. 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. Any references hereinabove to the R-7.5 Zoning District and to the requirements and regulations applicable thereto refer to the Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by GI PREPARED BY. MM SYKES, BOURDON, ARERN & LEVY. P.C. the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee. 0 PREPARED BY: = SYKES. BOURDON. OU A14MN & LEVY. P.C. WITNESS the following signature and seal: Grantor: ALCAR, L.L.C., a Virginia limited liability company By: ;U22(SEAL) Alan S. Resh, Member STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this 3rd day of March, 2006, by Alan S. Resh, Member of ALCAR, L.L.C., a Virginia limited liability company, Grantor. Notary Public My Commission Expires: August 31, 2006 2 WITNESS the following signature and seal: Grantor: Jamast, Inc., a Virginia corporation By: (SEAL) Alan S. Resh, Vice President STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this 3=d day of March, 2006, by Alan S. Resh, Vice President of Jamast, Inc., a Virginia corporation, Grantor. My Commission Expires: August 31, 2006 PREPARED BY. SYK£S, BOURDON, M AFIPRN & LEVY. P.0 Notary Public EXHIBIT "A" PARCEL ONE: That certain tract or parcel of land containing 50.955 acres, more or less, being bounded on the North by the property now or formerly belonging to the Marie E. Bratten Estate and T.C.C. Development Co., on the East by the property now or formerly belonging to Harry L. Van Note and Mabel G. Van Note, and being bounded on the South by the property now or formerly belonging to Willis Brown and being bounded on the West by the property now or formerly belonging to Maury F. Riganto and Grace T. Riganto, and being further described as follows: BEGINNING at a 21-inch cypress located at a common corner between the property now or formerly belonging to the Marie E. Bratten Estate and Maury F. Riganto and Grace T. Riganto, and running thence North 74 degrees 33 minutes 02 seconds East 293.92 feet to a pipe, North 74 degrees 37 minutes 41 seconds East 199.08 feet to an iron pipe, North 74 degrees 17 minutes 28 seconds East 460.48 feet to an iron pipe, North 74 degrees 17 minutes 40 seconds East 618.23 feet to a pipe, North 75 degrees 32 minutes 21 seconds East 1,900.72 feet to a pipe, and North 74 degrees 06 minutes 46 seconds East 135.60 feet to an iron pipe in the centerline of a ditch, thence turning and running South 47 degrees 11 minutes 44 seconds East 86.92 feet to an iron pipe in the centerline of a ditch, thence South 05 degrees 54 minutes 06 seconds East 113.50 feet to an iron pipe in the centerline of a ditch, thence South 36 degrees 49 minutes 07 seconds West 131.95 feet, thence South 20 degrees 53 minutes 54 seconds West 9 1. 11 feet to an iron pipe in the centerline of a ditch, thence South 48 degrees 29 minutes 10 seconds West 223.72 feet to a point in the Eastern edge of Brown Town Road, thence South 11 degrees 47 minutes 07 seconds West 324.92 feet to an iron pipe in the centerline of a ditch located in the Eastern edge of the Brown Town Road, thence turning and running South 75 degrees 23 minutes 42 seconds West 1,128.71 feet to an iron pipe in the centerline of a ditch, thence South 74 degrees 39 minutes 03 seconds West 1,250.65 feet to an 18-inch maple, thence turning and running North 59 degrees 18 minutes 31 seconds West 734.65 feet to a 7-inch cypress, thence North 39 degrees 06 minutes 41 seconds West 37.22 feet to a 12- inch cypress, thence North 67 degrees 54 minutes 01 second West 281.79 feet to a 21-inch cypress, the Point of Beginning. GPIN: 2404-37-1633 PARCEL TWO: PREPARED BY: All that certain tract, piece or parcel of land, lying, being and situate in Princess SYKES. BOURDON. Anne Borough (formerly Seaboard Magisterial District, Princess Anne County) City AHERN & LEVY. P.C. of Virginia Beach, Virginia, and bounded and described as follows: 8 PREPARED BY: SYKES, $OURDON. M AHERN & I.En P.C. Beginning at a pine located at the corner of property now or formerly belonging to Brown, Roper and Wright's heirs and running thence N 11 3/4 degrees W. 2.64 chains to a pine stump; thence N 43 degrees W 1.10 chains to a pine; thence N 73 1/2 degrees W 2.87 chains to a pine stump; thence N 82 1/2 degrees W 2.45 chains to a pine stump; thence N 73 degrees W 4.06 chains to a pine; thence N 62 1/2 degrees W 2.81 chains to a pine stump hole; thence N 31 1/2 degrees W 3.44 chains to a station on the south side of a ditch at the Browntown Bridge; thence N 56 degrees E 1.44 chains to a station on the south side of a lead ditch; thence N 70 % degrees E 1.54 chains to an unmarked cypress on the south side of said lead ditch; thence N 79 1/2 degrees E 2.30 chains to a station on the south side of said lead ditch; thence N 57 1/2 degrees E 4.37 chains to a station on the south side of said lead ditch; thence N 55 1/2 degrees E 1.74 chains to a station on the south side of said lead ditch; thence N 81 1/4 degrees E 3.53 chains to a station on the south side of said lead ditch; thence N 67 3/4 degrees E 1.50 chains to a station on the south side of said lead ditch; thence N 57 degrees E 1.16 chains to a station on the south side of said lead ditch; thence S 72 1/2 degrees E 2.42 chains to a stone at the corner of property now or formerly belonging to Roper's Rail Road and the property of Lamb in the line of property now or formerly belonging to Brown; thence S 14 % degrees W 3.22 chains to a station in the line of said railroad; thence S 1/4 degree W 12.69 chains to a stone in the line of said railroad at the corner of property belonging to Lamb; thence S 87 1/2 degrees W .47 chains to a sweet gum; thence S 87 1/2 degrees W 1.62 chains to the point of beginning and containing 16 acres and 37 poles more or less. Excepting from the above is a parcel conveying by deed to the City of Virginia Beach, Virginia from Harry L. Van Note and Mabel G. Van Note, husband and wife, for a roadway, said Deed being recorded in the aforesaid Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 1098, at Page 545, containing 2.690 acres, more or less, known and designated as Parcel 008 (Courthouse -Indian River Road Extended). GPIN: 2404-56-4943 PARCEL THREE: All that certain tract, piece or parcel of land, lying in "Brown Town" in Princess Anne Borough (formerly Seaboard Magisterial District) City of Virginia Beach, Virginia, and being more particularly described as follows: Beginning at a cypress at Brown Town Bridge, and running North 44 degrees W 2.33 chains to a pine; thence N 29 degrees W 2.67 chains to a post; thence N 10 degrees W 1.89 chains to a pine; thence N 9 3/4 degrees W 2.19 chains to a pine stump; thence 6 1/4 degrees W 4.61 chains to a pine; thence N 1 1/4 degrees E 2.06 chains to a pine; thence N 34 degrees E 4.46 chains to a pine; thence N 38 'Adegrees E 4.82 chains to an oak; thence N 58 degrees E 3.18 chains to a beech; thence N 46 1/2 degrees E 2.13 chains to a gum stump; thence N 86 3/4 degrees E 18.31 chains to a post; thence S 6 3/4 degrees E 5.81 chains on line ditch; thence S 7 3/4 W 12.17 chains C to a stone on line ditch; thence along said ditch S 73 1/4 degrees W 1.43 chains; thence S 47 degrees W 2.08 chains; thence N 78 1/2 degrees W 1.33 chains; thence S 58 1/4 degrees W 1.23 chains; thence N 74 3/4 degrees W 2.01 chains; thence S 60 1/4 degrees W 2.06 chains; thence S 71 1/4 degrees W .76 chain; thence S 89 degrees W 3.43 chains; thence S 55 degrees W 3.86 chains; thence S 63 1/4 degrees W 2.53 chains; thence S 81 degrees W 2.65 chains; thence S 70 degrees W 2.13 chains; thence S 57 degrees W 1.07 chains to beginning, containing fifty-six acres and one rod, more or less and bounded by the lands now or formerly belonging to Willis Brown, and Boston Brown and Jno. L. Brown. GPIN: 2404-57-3796 ConditionalRezone/Alcar/ NimmosQuay/Proffer 10 Rev.3/03/06 PREPARED BY: MSYKES. $OURDON. AHERN & LEVY. P.C. 10 PEMBROKE OFFICE PARK - BUILDING ONE 281 INDEPENDENCE BOULEVARD FIFTH FLOOR VIRGINIA BEACH, VIRGINIA 23462-2989 TELEPHONE: 757-499-8971 FACSIMILE: 757-456-5445 Via Hand Deliver! S Y KES, BOURDON, AHERN & Lam, P.C. ATTORNEYS AND COUNSELORS AT LAW January 24, 2006 Ruth Hodges Smith, City Clerk Office of the City Clerk City Hall Building # 1, Room 281 Municipal Center Virginia Beach, Virginia 23456 James K. Spore, City Manager Office of the City Manager City Hall Building #1, Room 234 Municipal Center Virginia Beach, Virginia 23456 JON M. AHERN R. EDWARD BOURDON. JR. JAMES T. CROMWELL L. STEVEN EMMERT DAVID S. HOLLAND KIRK B. LEVY O. JACKSON MOORE, JR. JENNIFER D. ORAM-SMITH HOWARD R. SYKES. JR. Re: Application of Munden Land, L.L.C. for Change of Zoning District Classification from AG-1/AG-2 Agricultural District to Conditional R-10 Residential District and P-1 Preservation District with a PDH-2 Overlay; 71.68 Acres, East side of Princess Anne Road, 1400 feet south of Sandbridge Road, Princess Anne District Dear Ms. Smith and Mr. Spore: On behalf of Munden Land, L.L.C., I am writing to formally request that the above referenced rezoning application be scheduled for public hearing and vote by the Virginia Beach City Council at its public hearing on Tuesday, February 28, 2006. This application was recommended favorably by the Virginia Beach Planning Department and unanimously recommended for approval by the Virginia Beach Planning Commission prior to its having been deferred by the Virginia Beach City Council on September 13, 2005. The reason given for the Council's deferral was to permit the JLUS/BRAC process to "run its course". That process has been completed by City Council's adoption on December 20, 2005 of a comprehensive set of Ordinances addressing the JLUS study and related land use restrictions. There is no longer any valid basis for holding up action on this application and we respectfully request that it be scheduled for February 28, 2006. I would appreciate it if you would confirm with my office the scheduling of this application at your earliest opportunity. DEPARTMENT OF THE NAVY NAVAL AIR STATION OCEANA 1750 TOMCAT BOULEVARD VIRGINIA BEACH, VIRGINIA 2.3460-2168 ?GIs . -i:aren Prochilo City of Virginia Beac , q Department of P.ianning 2405 Courthouse Drive, Building 2 Virginia Beach, VA 23456-9040 Dear Ms. P-rochil,O: AW,,AY 1 8 2,005 IN REPLY REFER TO., 5726 Ser 3 3 / 295 May 13, 2005 Thank you for the opp ortunity to review the Conditional Rezoning Application by munden Land, LLC- After careful evaluation and deliberation, we would like to make the following statements for the record. munden Farms would be located approximately six miles southeast of Naval z-':r station (NAS) oceana in close proximity to the southeastern departure corridor, bearing 175 magnetic from NAS oceana, and would place residents in the 65-70 and less t1aan 65 decibel (dB) day -night average (DNL) noise zones. High performance fighter aircraft from. NAS oceana Till potentially fly in the vicinity of the development, subjecting residents to high decibel siagle event noise levels at any time. The Navy's Air Installations Compatible Use Zones Program Views residential development as not compatible and discourages thi- use in the 65-70 dB DINL- If this rezoning recpaest is approved, we recommend sound attenuation measures be implemented. Interior sound level reduction and noise zone disclosure ensure a level of protection for prospective residents and IqAS oceana. The noise reduction efforts will reduce noise effects on the quality of life while indoors for the residents- Additionally, we recommend an -;n-de-oth disclosure of NAS oceana operational impacts on munden Farms at contract signing vice closing to potential home buyers. If you have any CrjeStions, contact my co-comm--amity Planning Liaison Officer, Mr. Ray Firenze, at (757) 433-3158. Sincerely and very respectfully, :SEE av a ffi Capt U. 0,::l Co: dina cer copy to: C01,2,11AVREG MIDL.AN'T Mayor mievera Oberndorf Virginia Beach City Council Virginia Beach Planning COnT--issiO'1 MUN 5!.6 ! !1 loll AT F 0111114,1111 Ruth Hodges Smith, City Clerk James K. Spore, City Manager January 24, 2006 Page 2 With best regards, I am Very truly yours, R. Edward Bourdon, Jr. REBjr/arhm cc: Robert J. Scott, Director, Department of Planning Leslie L. Lilley, City Attorney Councilman Jim Reeve Wayne F. Munden, Munden Land, L.L.C. ConditionalRezone / Munden / Smith 1 Conditional Zoning Change from AGI;'.AC2 to PUN-2 With R- 10 and P- I - Preser✓ation district ,1 �Srl. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Munden Land, L.L.C. - Change of Zoning District Classification, Princess Anne Road, south of Sandbridge Road (DISTRICT 7 — PRINCESS ANNE) MEETING DATE: March 28, 2006 ■ Background: An Ordinance upon Application of Munden Land, L.L.C. for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural Districts to Conditional PD-1-12 Planned Unit Development District (R-10 Residential and P-1 Preservation) on property located on the east side of Princess Anne Road, approximately 1350 feet south of Sandbridge Road (GPIN 24142007960000). The Comprehensive Plan designates this site as being part of Princess Anne (Transition Area). The purpose of this zoning change is to develop 71 single- family homes. DISTRICT 7 — PRINCESS ANNE This application was indefinitely deferred by the City Council on September 13, 2005 to provide time for the adoption of ordinance amendments pertaining to the Joint Land Use Study (JLUS), which occurred on December 20, 2005. The applicant has since submitted a letter requesting that this item be placed on the earliest available City Council agenda. To provide adequate notice to the public, a new public notice sign has been posted on the site, adjacent property owners have been notified via certified mail, and the application has been advertised in the Virginia n-Pilot's Virginia Beach Beacon. ■ Considerations: The applicant proposes to rezone the property to a Conditional R-10 Residential District and P-1 Preservation District with a PD-1-12 Overlay. The applicant proposes to develop the site as a 71 lot residential development with over 50 percent open space, in keeping with the Transition Guidelines. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The proposed building elevations reflect high quality materials and a detailed architectural style. The layout of the site will create a development that will complement the residential neighborhood under construction to the east and buffer the ARP property to the south. The proposal includes meandering trails, a large central open space area as well as extensive landscaping and berming. Munden Land, L.L.C. Page 2 of 4 The Transition Area "Matrix" was used to evaluate the proposal's consistency with land use and design goals for the Transition Area. The result was a score of 0.99 dwelling units per acre. This score translates to a total of 71 units for this 71.68-acre site. Staff concludes this proposal is consistent with the recommendations contained within the TATAC report and as recommended in the Transition Area Design Guidelines. The majority of the site is located within the 65 to 70 dB Ldn AICUZ and a smaller portion is within the Less Than 65 dB Ldn AICUZ. The Navy's OPNAV Instruction designates residential uses as being not compatible within those AICUZ. The Joint Land Use Study (JLUS) and the Memorandum of Understanding between the Navy and the City of Virginia Beach indicates that the 65 to 70 dB Ldn AICUZ would not be part of the AICUZ Overlay Ordinance (adopted by the City Council on December 20, 2005). Thus, the Staffs evaluation and recommendation regarding this application are unchanged from the report provided to the Planning Commission. There was opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 10-0 with 1 abstention to approve this request as proffered. ■ Attachments: Staff Review Disclosure Statement Revised Conceptual Land Use Plan Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval with modifications to the proffers and increased buffer as depicted on the conceptual land use plan. Submitting Department/Agency: Planning Department City Manage S I Munden Land, L.L.C. Page 3 of 4 CURRENT PLAN (Revised since Planning Commission) _ r7 V) E Q L- C tt u- a� C c > J u U A ti 7 C Q C' a N � m U U C C x C C.i Munden Land, L.L.C. Page 4 of 4 MUNDEN LAND, L.L.C. Agenda Item # 3 July 13, 2005 Public Hearing Staff Planner: Karen Prochilo REQUEST: Change of Zoning District Classification from AG-1 and AG-2 Agricultural District to Conditional R-10 Residential District and P-1 °" Munden Land LLC M 8-2' 8 Qi AG-2 -0 3 � r / ,.o-z "tiv'' Z -•, � ° �, G Coro AG -is' �`\ \ \ ! ' 8 -2o0 0 l� /\ r AG AG-2 �\ ..rr.. r r!7rN� vC�ir <I�rl:: 1.'. i.'.1C.%'r•r""'IJi"' Preservation District with a PD-1-12 Overlay. ADDRESS / DESCRIPTION: Property located on the east side of Princess Anne Road approximately 1400 feet south of Sandbridge Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24142066720000 7 — PRINCESS ANNE 71.68 acres The applicant proposes to rezone the existing AG-1 and AG-2 SUMMARY OF REQUEST agricultural property to a Conditional R-10 Residential District and P-1 Preservation District with a PD-1-12 Overlay. The applicant proposes to develop the site as a 71 lot residential development with over 50 % open space in keeping with the Transition Guidelines. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Cultivated farm field SURROUNDING LAND North: . Cultivated farm field / AG-1 & AG-2 Agricultural District USE AND ZONING: South: . ARP - Cultivated farm field / AG-1 & AG-2 Agricultural District East: 0 Heritage Park single family residential development / R-10 Residential District West: . Across Princess Anne Road Farm agricultural land and borrow pit / AG-1 & AG-2 Agricultural District NATURAL RESOURCE AND CULTURAL FEATURES: The majority of the site is a cultivated farm field. AICUZ: The site is in an AICUZ of less than 70 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Princess Anne Road in the vicinity of this application is a two lane minor arterial road. As indicated on the Master Transportation Plan, the proposed right-of-way in this vicinity is identified as Princess Anne Area Buffered Roadway at 100 feet. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Princess Anne 32,869 ADT 26,300 ADT (Level of Existing Land Use — 50 Road Service "C") - 48,200 ADT ' (Level of Service "E") ADT Proposed Land Use 3- 760 ADT Average uany i rips 2 as defined by agricultural zoning 3 as defined by single family homes As a result of the proposed development, the applicant will be required to construct a left turn lane into the site on Princess Anne Road. WATER: Water does not front the property, but may be extended for connection purposes provided hydraulic analysis supports the potential demand. SEWER: City sanitary sewer is not available to this site. Engineer must explore options for providing sanitary sewer service. Plans and bonds are required for construction of a new pump station and sanitary sewer system. SCHOOLS: School Membership 9/2003 Capacity 10/2003 Generation' Change 2 Red Mill Elementary 880 782 21.6 20 Princess Anne Middle 1552 1468 12.1 11 Kellam High 2410 1839 16.9 16 "generation" represents the number of students that the development will add to the school 2 "change" represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be positive (additional students) or negative (fewer students). 3 This new development will be assigned to the Three Oaks Elementary when it opens in September 2005. COMPREHENSIVE PLAN The Comprehensive Plan recognizes this area as being within Princess Anne / Transition Area. The land use planning policies and principles focus strongly on promoting this area as a well —planned, low density, fiscally sound and desirable destination for people to live, work and play. Within the Transition area, developers are encouraged to cluster housing and employ the most creative planning and development techniques. EVALUATION AND RECOMMENDATION Staff recommends approval of this 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 proposed building elevations reflect high quality materials and a detailed architectural style. The layout of the site will create a development that will complement the residential neighborhood under construction to the east and buffer the ARP property to the south. The proposal includes meandering trails, a large central open space area as well as extensive landscaping and berming. The Transition Area "Matrix" was used to evaluate the proposal's consistency with land use and design goals for the Transition Area. The result was a score of 0.99 dwelling units per acre. This score translates to a total of 71 units for this 71.68-acre site. Staff concludes this proposal is consistent with the recommendations contained within the TATAC report and as recommended in the Transition Area Design Guidelines. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the development takes place upon that portion of the Property which is to be developed, it shall be as a single family residential community of no more than seventy-one (71) building lots substantially in conformance with the exhibit entitled "Conceptual Land Use Plan of MUNDEN FARMS, Princess Anne Road Virginia Beach, VA" dated 03/31/05 (Revision A), prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (Land Use Plan). PROFFER 2: When the property is developed, the "150' TRANSITION AREA BUFFER" as depicted on the Land Use Plan shall be dedicated to the Grantee for future improvement and public use as a bicycle trail and / or horse trail and Landscaped Open Space consistent with the Grantee's Comprehensive Land Use Plan. PROFFER 3: When the property is developed, approximately 42.6 acres of landscaped and vegetated open space, and lakes as depicted on the Land Use Plan shall be zoned P-1 Preservation District. All of the Open Space except the"150' TRANSITION AREA BUFFER" shall be dedicated to and maintained by the Property Owners Association. PROFFER 4: When the Property is developed, the trails which are depicted on the Land Use Plan shall be created consistent with the "WOODLAND TRAIL" detail on the exhibit "Detail Sheet Plan of Munden Farms, Princess Anne Rd., Virginia Beach, Va.", dated 03/31/05, Revision A. prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Detail Sheet"). PROFFER 5: The community entrance and the proposed street sections of the roads within the community shall be constructed and installed substantially in conformance with the plans depicted on the Detail Sheet. When the Property is subdivided any required additional right of way along the Property's frontage on Princess Anne Road shall be dedicated by the Grantor to the Grantee and a left turn lane from Princess Anne Road shall be constructed by the Grantor. PROFFER 6: When the Property is subdivided, the residential building lots shall have a minimum of 12,000 square feet and they shall be subject to a recorded Declaration of Protective Covenants, Conditions and Restrictions ("Deed Restrictions") administered by a Property Owners Association, to which membership is mandatory. The Property Owners Association shall be responsible for maintaining all Open Space areas, Commons Areas, trails, easements and the entrance feature. The Deed Restrictions shall mandate that all fencing be uniform, black ornamental aluminum, no more than fifty percent (50%) opaque, no greater than 48 inches in height, similar in style with the fencing shown in the photograph labeled "Entrance Treatment Character into Munden Farms" on the Land Use Plan. PROFFER 7: All residential dwellings constructed on the Property shall have visible exterior surfaces, excluding roof, trim, windows and doors, which is no less than seventy-five percent (75%) brick. The architectural features and exterior appearance of the dwellings shall be substantially in keeping with the appearance of the homes depicted in the photographs entitled "MUNDEN FARMS — HOMES" dated March 30, 2005 which have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning ("Elevations"). Those portions of the visible exterior surfaces, excluding roof, trim, windows and doors, which are not brick shall be a Hardi-Plank or similar high quality material. Any one-story dwelling shall contain no less than 2400 square feet of enclosed living area excluding garage area and any two-story dwelling shall contain no less than 2600 square feet of enclosed living area excluding garage area. The front yards of all homes shall be sodded. The Deed Restrictions shall require each dwelling to have, at a minimum, a two (2) care garage. The required minimum setbacks for front yards and side yards adjacent to streets shall vary from 35 feet to 40 feet as specified for each individual lot in the table on the Land Use Plan. PROFFER 8: A detailed landscaping plan for all open space areas shall be submitted to the Director of the Department of Planning, or his designee, for review and approval prior to subdivision approval. PROFFER 9: The Grantors recognize that the subject site is located within the Transition Area identified in the Comprehensive Plan of the City of Virginia Beach, adopted on December 2, 2003. In addition to integrating significant open space with a low density, high.quality, housing component as specified in the Comprehensive Plan, the party of the first part agrees to contribute the sum of Seven Hundred Fifty Dollars ($750.00) per lot to Grantee to be utilized by the Grantee to acquire land for open space preservation pursuant to Grantee's Outdoor Plan. If funds proffered by the party of the first part in this paragraph are not used by the Grantee anytime within the next twenty (20) years for the purpose for which they are proffered, then any funds paid and unused may be used by the Grantee for any other public purpose. The party of the first part agrees to make payment for each residential lot shown on any subdivision plat prior to recordation of that plat. PROFFER 10: 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. Any references hereinabove to the R-10 and P-1 Zoning Districts and to the requirements and regulations applicable thereto refer to the Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. PROFFER 11: Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City Agencies and departments to meet all applicable City Code requirements. STAFF COMMENTS: The proffers listed above are acceptable as they dictate the level of quality of the project. The City Attorney's Office has reviewed the proffer agreement dated March 31, 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. PROPOSED SITE, PLAN MUNDEN LAND L.L.C. Agenda Item # 3 Page 7 011 a 7 Oe --� � 4� �s � s �� • s Xasy� n } i �too t i t i�X } n ,._....... son w P x � o �w u w X S : U a y LL a � c m PROPOSED BUILDING ELEVATIONS MUNDEN LAND L.L.C. Agenda Item # 3 Page 10 PROPOSED BUILDING ELEVATIONS MUNDEN LAND L.L.C. Agenda Item # 3 Page 11 1 08/12/03 Rezoning from AG-1 & AG-2 to Conditional R-20 & P-1 Conditional Use Permit for open sace Granted 2 04/23/02 Conditional Use Permit (borrow pit reconsideration) Denied 3 03/26/02 Conditional Use Permit borrow it Withdrawn 4 05/25/99 Rezoning from AG-2 to Conditional B-2 Granted 5 04/27/99 Conditional Use Permit (fraternal organ zation) Granted 6 03/26/96 Conditional Use Permit church Granted 7 08/28/93 Conditional Use Permit church Granted 8 10/23/90 Conditional Use Permit (borrow pit expansion) Granted 9 06/11/90 Rezoning from AG-2 to Conditional B-2 Denied ZONING HISTORY MUNDEN LAND L.L.C. Agenda Item # 3 Rage 12 DISCL©SURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers. members, trustees, partners, etc. below: (Attach list if necessary) Munden Land, L.L.C.: Wayne F. Munden, Managing Member; William C. Munden, Member; Thomas E. Munden, Member; Richard L. Munden, Member 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following. 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ❑ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & See next page for footnotes Conditional Rezoning Appimation Page 11 of 12 Revised 911/2004 11 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services. financial services, accounting services, and legal services: (Attach fist if necessary) MSA, P.C. Sykes, Bourdon, Ahern & Levy, P.C. (R. Edward Bourdon, Jr., Esq.) 1 "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent -subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. Munden Land, L.L.C. Ir" 77, � By;1 ,t,z,�,,,...-eyne F. Munden, Managing Member Applicant's Signature Print Name Property Owner's Signature (if different than applicant) Print Name Conditional Rezoning Application Page 12 of 12 Revised 911,12004 DISCLOSURE STJ TEMENT MUNDEN LAND L.L.C. Agenda Item # 3 Page 14 NTP DEPARTMENT OF THE NAVY NAVAL AIR STATION OCEANA 1750 77 0MCAT BOULEVARD V'RGINIA BEACH, VIRGINIA 23460-2168 Ms. Karen Proc. i 1 o City of Virginia Beac: Department of Planning 2405 Courthouse Drive, Building 2 Virginia Beach, VA 23456-9040 Dear Ms. Proc hil o : IN REPLY REFER TQ, 5726 Ser 33l 29.5 RECEIVED � may 13, 2005 Thank you for the opportunity to review the Conditional Rezoning Application by Munden Land, LLC. After careful evaluation and deliberation, we would like to make the following statements for the record. Munden Farms would be 'ocated approx4.mately six miles southeast of Na-:al Air Station (NAS) Oceana in close Proximity to the southeastern departure corridor, bearing 275 magnetic from NAS Oceana, and would place residents in the 65-73 and less than 65 decibel (dB) day -night average (DNL) noise zones. High performance fighter aircraft from NAS Oceana Ttiil potentially fly in the vicinity of the development, subjecting residents to high decibel single event noise levels at any time. The Navy's Air Installations Compatible Use Zones Program views residential development as :got compatible and discourages this use in the 65-7-0 dB DNL. If this rezoning request is approved, we recommend sound attenuation measures be implemented. Interior sound level reduction and noise zone disclosure ensure a level of protection for prospective residents and NAS Oceana. The noise reduction efforts will reduce :noise effects on the quality of life while indoors for the residents. Additionally, we recommend a in-dept'.^ disclosure of NAS Oceana operational impacts on Munden Farms at contract signing vice closing to potential home buyers. If ycu have any questions, contact my Community, Planning Liaison Officer, Mr. ?ay Firenze, at (757) 433-3155. Siin�cerely and very respectfully, KEE E­ CapIt U. P1avy° Co. a.dinc Office - Cozy to: C0-_&, -_ EL T_+;IDLA-1T Mayor Xeyera Oberndorf - Beach City Council Virginia Beach Planning Conmission MUNDEN LAND L.L.C. Agenda Item # 3 Page 15 Transition Area Matrix Allowable maximum residential density for any rezoning in the Transition Area under the policies of the Comprehensive Plan is 1 unit per acre. The maximum density can be achieved through adherence to the Evaluative Criteria provided below and further explained in the Design Guidelines for the Transition Area. Each section of the Evaluative Criteria below ties to the Design Guidelines through the graphic icon at the top of the section. For further guidance on the respective section of the Matrix, turn to the page of the Guidelines that has the corresponding graphic icon. Staff will `score' the proposed development for its consistency with the Evaluative Criteria below. The scores are then totaled and the total is `plugged' into the formula below to determine the recommended maximum density for the development. PROJECT: Munden Land L.L.C. MATRIX REVIEW DATE: 06/24/05 PROJECT DATE: 03/21/05 Rev. A Evaluative Criteria Total Comments Natural Resources Degrees to which the project 1.8 preserves and integrates into the overall project the natural resource amenities on the site. Amenity Nature and degree of the 4.0 amenity Design Degree to which the project 4.9 incorporates good design into the project (E) TOTAL: TOTAL / 11 possible points TOTAL / 11 * 0.5 = Line (C) + 0.5 du/acre = 10.7 .97 .49 .99 du/acre Line D * total developable acres (71.68) = 71units Transition Area Matrix Page 1 of 7 CADocuments and Settings\swhite\Desktop\03a_Mundenland_TAmatrix0l.doc Line A --total number of points from the worksheets on the following pages. Line B -- total divided by the total number of possible points, which is 11 Line C --total from Line B multiplied by 0.5, which is the amount between the baseline density of 0.5 dwelling units per acre and the possible 1 dwelling unit per acre (du/ac). Line D --total from Line C added to 0.5 du/ac (the baseline density) to obtain the maximum density for the site. Line E -- total from Line D multiplied by the number of developable acres on the site, thus providing the maximum number of units for the site. (1) Natural Resources Existing forests, wetlands, meadows, cultivated fields, and related features Total a) Are natural resources protected? Comments: YES X (0 to 1 • Somewhat. The existing natural resource is 90 the cultivated farm field. The open space point) area has the potential for a community garden. NO ❑ (0 points) b) Are natural resources integrated into project? YES X (0 to 1 Comments: • A large central open space will utilize some point) .90 of the existing field. NO ❑ (0 points) NATURAL RESOURCES TOTAL 1.8 Insert in appropriate box on page 1 Transition Area Matrix Page 2 of 7 CADocuments and Settings\swhite\Desktop\03a_Mundenland_TAmatrix0l .doc (2) Amenity A feature that increases the attractiveness or value of the site consistent with the goals and objectives of the Comprehensive Plan for the Transition Area. Total a) Is the amenity, if present, visually or operationally available to those who do not own property in the development? YES X (0 to 1 point) 1 Comments: • Yes, one amenity in the form of a 150-foot buffer along the right-of-way with a trail connection into the proposed development. The proposed trail system is operationally available to those who do not own property in the subdivision and may be accessed through proposed connections to the adjoining properties. NO ❑ (0 points) b) Does the amenity consist of recreational components? YES X (0 to 1 point) 1 Comments: • Yes the recreational component is in the form of a trail system and a large centrally located common open space. NO ❑ (0 points) Transition Area Matrix Page 3of7 CADocuments and Settings\swhite\Desktop\03a_Mundenland_TAmatrix0l.doc c) Are improvements made that provide visual or physical access to the natural resources on the site OR are improvements made to create a new amenity to the property? YES X (0 to 1 point) 1 Comments: • Yes, improvements have been made to create a new amenity on the site. The proposed trail system provides access to open space areas, storm water management facilities and connection to adjoining property. The addition of berms as well as the evergreen buffer provides a visual amenity between adjoining properties. NO ❑ (0 points) d) Is there connectivity linking any open space and/or amenities between this development and adjacent existing or future developments? YES X (0 to 1 point) 1 Comments: • Yes, the proposed trails and a potential right- of-way connection are linked to adjacent property. NO ❑ (0 points) AMENITY TOTAL Insert in appropriate box on page 1 4 Transition Area Matrix Page 4 of 7 CADocuments and Settings\swhite\Desktop\03a_Mundenland_TAmatdx0l.doc (3) Design Creation or execution in an artistic or highly skilled manner consistent with the goals and objectives of the Comprehensive Plan for the Transition Area.77, Total a) Are natural or manmade water features incorporated into the development in a way that they serve as amenities? YES X (0 to 1 point) 1 Comments: • Yes, the two storm water management ponds are integrated into the project and serve as visual amenities. NO ❑ (0 points) b) Is there an attempt to integrate the amenities as an integral part of the overall development? YES X (0 to 1 point) 1 Comments: • Yes, there is an attempt to integrate the built environment with the overall development through the trail system design, the location of the berms, open space and storm water management. NO ❑ (0 points) Transition Area Matrix Page 5 of 7 CADocuments and Settings\swhite\Desktop\03a_Mundenland_TAmatrix0l .doc c) Does the development retain or create views or scenic vistas that can be seen from the road? YES X (0 to 1 point) 1 Comments: Yes, the 150 foot buffer along the right-of- way, retaining the existing homes and the berms assist in maintaining a rural view from the road • The main entrance curves into the site limiting the view of any structures until you proceed further into the proposed development. NO ❑ (0 points) d) Is a mixture of lot sizes and the clustering or massing of homes used to achieve a primarily open space development? Comments: YES X (0 to 1 point) 90 • Yes, there is a slight mixture of lot sizes ranging from 12, 000 SF to 16, 000 SF. The proposed lots are sited so that rear yards and some side yards abut open space. • The development exceeds the 50% open space goal. NO ❑ (0 points) Transition Area Matrix Page 6 of 7 CADocuments and Settings\swhite\Desktop\03a_Mundenland_TAmatdx0l.doc e) Does the development use roadway and "hard infrastructure" that is appropriate for its design? Is it consistent with the vision and recommendations of this area as expressed in YES X (0 to 1 the Comprehensive Plan? point) 1 Comments: • The proposed roadway section is appropriate for its design. NO ❑ (0 points) DESIGN TOTAL 4.9 Insert in appropriate box on page 1 Transition Area Matrix Page 7 of 7 CADocuments and Settings\swhite\Desktop\03a_Mundenland_TAmatrix0l.doc Item #3 Munden Land, L.L.C. Change of Zoning District Classification East side of Princess Anne Road District 7 Princess Anne July 13, 2005 REGULAR Joseph Strange: The next item is Item #3, Munden Land, L.L.C. An Ordinance upon Application of Munden Land, L.L.C. for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural Districts to Conditional PD-H2 Planned Unit Development District (R-10 Residential and P-1 Preservation) on property located on the east side of Princess Anne Road approximately 1350 feet south of Sandbridge Road, District 7, Princess Anne with eleven proffers. Eddie Bourdon: Thank you Mr. Secretary and Madame Chair, for the record, Eddie Bourdon, a Virginia Beach attorney representing the applicants. A couple of the brothers are here today. We have worked extensively with the staff on the development plan for this 711/a-acre parcel of land that has been in the Munden family for well over a century. The property is located almost at the northern boundary of what was once called Transition Area Three, now it is all just one -transition area. It is just to the south of the Food Lion shopping center, the Gateway Bank on the corner, and just to the north of that is the Red Mill Commons shopping area. The property adjoining us on the north is also owned by the owners of that commercial development on the corner, which now characterizes the southeast corner of Sandbridge Road and Princess Anne Road. Recently, a plan for a daycare center was approved on a portion of that property fronting on Sandbridge Road. I'm aware of the fact with consultations with the owners that they also have plans in the works to come forward to develop that property. You all may recall a few years ago, I stood before you representing the owners of that property seeking a borrow pit, which clearly is not in keeping with what we now are looking for in the transition area, and the TATAC recommendations, and with the development exists, my clients have come forward with this application. To the east of this property, this is an older aerial photo the Heritage Park Development is under construction. To the southeast of this property, the Ashville Park Development will be taking place over the course the next number of years. We have provided a main entrance from Princess Anne Road. We will be providing turn lanes within Princess Anne Road to the right-of-way within the area that we will be providing to the City. We have provided the required 150 feet buffer on our property along Princess Anne Road, in this area, but in addition to that we provided buffer that goes all the way back to over 300 feet to the nearest property line, well over 300 feet to the nearest home from Princess Anne Road. All this area you see here will be extensively bermed and landscaped. We proffered all of that. We have also provided, in addition ,to sidewalk in the street, we provided trails that totally encompass the entirety of the site. We have over 71 acres. We have 42.6 acres of the property in Item #3 Munden Land, L.L.C. Page 2 open space, well over a 50 percent threshold. Unfortunately, it (the photo) was cut off here but we also are showing a pedestrian multipurpose bridge that we will be putting in. There is a major drainage way here. I am hesitant to call it a ditch. It is a very large ditch but we will be providing a pedestrian connection from our trails to the trails within Heritage Park to our east. To the south, we adjoin a piece of property that is in the ARP Program. To my knowledge, it is the only piece of property in the Transition Area to date other than John Cromwell's farm, which is down at the far southeastern corner of the Transition Area Three, where the true transition occurs into the agricultural area. This property to our south has been in the ARP for a number of years but it is the "lone wolf' and I think it will remain the only property in ARP this far north in the Transition Area. That is an option that everyone has but it is not a requirement and this is not in the area below the Blue Line at Indian River Road and Pungo. But we have provided an evergreen buffer along here that is heavily landscaped. We had originally talked about doing a berm in here but for drainage reasons the City felt it was best, and we concur that we not berm this but we just doing a very, very heavy evergreen landscape buffer. It is correct that in this area here and here, we are less than 50 feet from the property line with the boundaries for the lots. The area in here is all open space all maintained by Homeowners Association. I believe we are able to move these and shift these to the north so that we can provide a 50-foot evergreen buffer along this southern boundary, and we are certainly willing to do that and accommodate that. Along our southern boundary is a ditch about 3'/z feet rough deep that runs the entire boundary, which provides some incentive for people to trespass. We certainly, with this hedgerow that we will put in is going to be grown up to the point where it will be very difficult to get through. The trails are inside of this and not on the outside. The TATAC Committee and everything that is in there talks about openness. Our fencing, which these lots will be fenced, are open fences. We don't want any privacy fence. This is all open style fencing because we want to have that open feel. We do not believe it is necessary to place a fence along the boundary in addition to all this landscaping and the ditch. Frankly, the berm would be better than the fencing because it gives an open feel rather than trying to put a fence up. We will abide by the wishes of City Council if they believe there is a necessity for putting a fence here we could that but we don't think that is consistent with our recommendations are under the Comprehensive Plan. We proffered some beautiful homes. I will mention and Mr. Waller will appreciate this, the homes that are shown in those pictures are a little larger than what will occur on these lots. I just want to make sure that everyone is clear. That represents the architectural style of the homes. They are 75 percent brick. They will clearly far exceed the minimum threshold for value homes that we are inspiring to in the Transition Area. I don't think there is any doubt about that. We've provided future access to the north. We expect there will be actually a ring road that will come in off of Sandbridge Road near the daycare center that will loop around and possibly connect here, and then come out here. But that is not definite at this point. The ring road may come up in this area. We don't know. It all depends on what they decide to do to the property to the north. We provided that opportunity if it becomes one that is makes sense and is viable. We have offered proffered money for open space acquisition elsewhere in the City, which is one of the proffers, which I have all my clients put in their agreements in Item #3 Munden Land, L.L.C. Page 3 the Transition Area from the get go. I believe we have an excellent application and I think that your staff concurred with that with their recommendation for approval. I'll be happy to answer any questions that any of you may have. Dorothy Wood: Are there any questions? Ron and Will. Ronald Ripley: You mentioned a bridge. Is that a timber bridge that you're proposing to put in across the drainage area? Eddie Bourdon: The precise nature of the construction, I can't speak to whether it will be. More than likely it will be Mr. Ripley but it is going to depend on the engineering that is going to take place at the time, and the City would have to approve whether are comfortable with it being a timber bridge or some other structure. Ronald Ripley: You mentioned that the lots closest to the southern property that you will try to find a way to move them a little bit so that you will have about 50 feet of an area to buffer. Eddie Bourdon: We have well over 50 feet for the vast majority of that area, and the only places that we are inside of that is here, and here. Ronald Ripley: So you're going to make a slight revision to your plan, and change it for Council? Eddie Bourdon: To shift those north but it won't change anything about it except just to move some lines, and changing some angles. Ronald Ripley: I couldn't quite tell the make of the path itself. Is it a multipurpose path? Is it a hard surface? Eddie Bourdon: It is mulched type hard unit. It is not asphalt. It is not going to be an asphalt surface. You can do multipurpose things on it but it will not be an asphalt trail. You can walk and jog. Bikes can go on it. It might be a little difficult for someone pushing a stroller. Ronald Ripley: Horses? Eddie Bourdon: Oh, absolutely. Yes sir. There will be 150 feet along Princess Anne Road that will be dedicated to the City. Everything else will be owned and maintained by the mandatory membership Homeowners Association. Ronald Ripley: Thank you. Dorothy Wood: Thank you. Will. Item #3 Munden Land, L.L.C. Page 4 William Din: Eddie, you are going through a lot of trouble to landscape all around this site except the site that are on Princess Anne Road there. You got these two white blotches or cut outs of this property. To me, it sort of just sits out like a sore thumb that you haven't got landscaping that blends in to the rest of the development. Was there any consideration given to how that actually looks from Princess Anne Road, and the type of landscaping that might improve that view also. Eddie Bourdon: It actually has been Mr. Din and I appreciate the question. I should have addressed this earlier. The two existing parcels, which are not a part of this property, they are subdivided, and have been subdivided out of this property. This home was built back in the late 50s. It is owned by one of the brothers who reside there. And it is landscaped as it is today. We certainly expect both of these, and this is also by one of the brothers, as well as his house is 25 years old. We have extensive landscaping all around this one. We haven't done as much here because this property is fairly well landscaped. But we don't have any aversion of incorporating landscaping around these homes. We think they add to the character of the area, and the appearance of the drive down Princess Anne Road. We do anticipate that we may very well, and we provided for it here change the entrances to these homes off of Princess Anne Road, and have them come into this road with a new driveway so to eliminate the existing driveways on Princess Anne Road. But in terms and we have not considered that these homes were in any way detrimental to the character of the area, in terms of their appearance that they needed to be extensively screened. If the City, and ARP to the south, and there won't be a trail going further south of the ARP property, I don't believe but if there is an effort to put a trail up through there that is something that is certainly may be accommodated with the two homes that are existing there. But, no one has expressed to us the desire that we put in any type of major screening in front of these homes, and I'm not really sure exactly what you would be looking for but they are owned by members of the family, and certainly are willing to work with the staff enhance the appearance of what they expect to be a excellent project. William Din: My concern, I guess is that you got the entrance of this development right there between these two, and you got a well landscaped area. You want this development to be attractive as you go into this thing also. I'm not saying that the houses on the site are not. I would like to see it more blended in to the development of the neighborhood rather than just sitting there, as an isolated area. Eddie Bourdon: And certainly when you look at a picture like this that just shows lots on a map, you don't really have the ability to see what they look like or what the existing landscaping around those properties are. William Din: We do have some pictures of the frontage of this area. That is one of the houses. The other house is on the other side? Eddie Bourdon: That is where we have the extensive landscaping around. When you look at that and you try to put your mind's eye see all the landscaping that we will be placing Item #3 Munden Land, L.L.C. Page 5 will be, in the case to the house to the south, which this is the house to the north, all the way up towards Princess Anne Road. Our development is well beyond where these homes are. William Din: But this is the view from Princess Anne Road that people will see, plus the entrance? Eddie Bourdon: Exactly, when it is developed Mr. Din and everything is placed in there this view will be tremendously buried from what you see today. You have nothing there today. If you look at the plans we have landscaping all the way back down the road. William Din: I would just hope to consider those houses. Take a look at that entrance and if you could use a computer generated scenes. Eddie Bourdon: It is to our advantage and I couldn't agree with you more. It is to our advantage to make sure that the entrance to this development is as a high quality as what we have shown you, and we certainly don't want to have our own homes detract them. William Din: Thank you. Dorothy Wood: Thanks Eddie. If you would let the opposition speak and then we will be more than happy to welcome you back. Joseph Strange: Speaking in opposition we have Nancy Williamson. Nancy Williamson: Good afternoon. My name is Nancy Williamson. I am the property owner immediately south on this proposed development. There are two clarifications that I would like to make for the attorney for Munden Corporation. I am the "lone wolf' who is in the ARP. I don't mind that status. I would like to clarify that the other people who are in the same region have had the same opportunity that I have. It is an opportunity that is there for them even today. So, if they would pursue it like as I did, they may not be making this proposal. The comment that there is nothing there today, but what you're looking at is not representing the proposal but there is nothing there today. I disagree with that statement. There is farmland being cultivated there, and there is a priority in my mind. There needs to be priority for that as much as for housing. You all saw a slide presentation this morning concerning affordable housing in the City. I do not view half a million dollar homes as being considered affordable housing schemes. So that is another consideration that I think the Planning Commission needs to recognize. Another clarification to the attorney's comments are this property has been in the Munden family for over a century. That is not actually accurate. It was actually in the Land family for over a century, which I'm also a member of that same family. This land came to the Munden family by way of their mother, who was my aunt. My sister and I had half of the land farm, and the Munden Brothers ended up with the other half by way of their mother. So this started out by being a 150-acres of farm land, prime farm land. It is on the Pungo Item #3 Munden Land, L.L.C. Page 6 Ridge. It is some of the best farm land in that area. To take it out of agricultural possibility, it is detrimental to the agricultural community in Princess Anne in Virginia Beach. A couple of the items that I would like to bring to your attention as to why I'm opposed to this application. Dorothy Wood: Ma'am, you have about 45 seconds. Nancy Williamson: Thank you. The over development of Ashville Park and Heritage Park. The over development of this area. The traffic. The congestion. There is already a traffic problem on Princess Anne Road. There are issues of dust from borrow pits as well as the farming activity. I have some requests that I put into my correspondence to you concerning some conditions. I am very interested in fencing. The ditch is very easily transversal. ATV's are very popular. Ed Weeden: Ma'am, your time is up. Dorothy Wood: Thank you Ms. Williamson. We appreciate you coming down today. Eddie, would like to reply quickly? Barry Knight: Dot, can I ask Ms. Williamson some questions? Dorothy Wood: Yes. Ms. Williamson would you please answer Barry's questions. I'm sorry. I think the heat must have gotten to me. Barry Knight: Ms. Williamson, I hear your concerns and read your letter. You are more concerned about the over development of this property or is one of your concerns having your farm land and the viability of keeping your farm land a viable farm next to this development? Nancy Williamson: I don't live on the property but I do rent the property to the family that is on it. I have a sister who lives south of me. She is raising her children there. Some of my concerns are related to the impact on the area as a result of this development. There are 680 homes, I believe from Ashville and Heritage. That is congestion enough. This is another 71. To me, it feels were going to fast. Doing too much, too fast. I don't think the City has really felt the repercussions of Ashville and Heritage yet. And if you approve another 71 single-family homes in the same facility, you could be in a position of saying, "oops, we should have not went so fast." Barry Knight: I understand that part of your opposition. I was wondering if that was the main part or did you have a tremendous concern about having these houses to the next to the farming operation. I know that Robert White farms. If it is just the development we'll go towards that issue but if is towards protecting the viability of the farming, we may be able to help with that a little bit if you like. What I propose with the concurrence of the applicant is when you build homes down a rural service area, which is a little Item #3 Munden Land, L.L.C. Page 7 further south than you are, you have something called an Agricultural Disclosure Form. I think they would be agreeable from Lots 5 to Lots 25, which is on the southern boundary. When they sell a lot they could have an Agricultural Disclosure Clause which states that you're moving next to an agricultural district but yours is always going to be because you sold your rights in perpetuity that you have to be cognizant of the fact that you have sights, sounds, smells, and practices of the agricultural community. And, I believe if this was passed today, and if they would agree and you would agree to put this verbage in there, it may give you a little better commonwealth. Nancy Williamson: Yes sir, it would. The other concern is trespassing. That is a concern. The trees don't quite do it. They take a long time to grow. The berm definitely doesn't do it because an ATV goes over a berm very easily. The ditch doesn't stop anybody. I can travel that ditch myself today. Barry Knight: As far as the trespassing part, I like the idea of the landscaping when you can't see through that and it grows, do you think if, it wouldn't be a detriment to the farming operation if they even and put more angle on the ditches. Nancy Williamson: I don't think the ditch would prohibit the ever popular ATVs. That is a main concern. Barry Knight: I think it does. I own a fairly amount of farmland. Mr. Horsley does a lot of farming and there are certain ditches that you can go across with your ATV and there are certain ditches that you're not going to go across. Nancy Williamson: Okay. So, if there was a condition placed on the development that they place a ditch of the caliber of which were speaking then I can go there. I had in my comments, and I guess I resorted to a fence, something that would stop the person from traveling. That is what I went too but I know that the canal in the back is of adequate size, and usually full of water that would deter someone from trying to cross it. But the existing ditch way between my property and the Munden property is not adequate to deter. It has something to be placed there. If it is not wrought iron fence of adequate height to prevent someone from climbing over it, then it has to be adequate depth in ground to keep them from traveling that. Barry Knight: Mr. Horsley knows that if we have enough grade to go back to the large ditch in the back, and that is a very, very large ditch. I'm very familiar with it. If you have enough slope or what they call a one to one grade with a little deeper, Mr. White is going to like that because it is going to facilitate the drainage on the farm also. Nancy Williamson: Okay. The low area in the back of my property, they have always called the low land. I understand what you're saying. That would have to be a condition of the applicant to put that ditch there and to maintain that ditch. Item #3 Munden Land, L.L.C. Page 8 Barry Knight: Well, we'll ask him. Nancy Williamson: Okay. That would be something that I would come back with and ask if that could be done. Thank you Mr. Knight. Eugene Crabtree: I have one question. Dorothy Wood: Yes, Mr. Crabtree. Eugene Crabtree: You're addressing the ATVs. Do you have a problem with them in the current moment? Are they going across your property now? Are they inhibiting the agricultural operation that is on your property currently? Nancy Williamson: You don't have the occupancy level there right now. It is all vacant land. Eugene Crabtree: I realize that. Nancy Williamson: What I'm commenting on is homes that are going to be totally occupied by juveniles and teenagers that is in that ever popular sport. There is a lot of open land there and it is very enticing. That is what I would see young teenagers going to. They don't have to have a license. It is just freewheeling. Like I said, I don't live on the property so I can't tell you if someone is doing that currently. But it is always a concern of the farmers if there is trespassing through their crop. Eugene Crabtree: Maybe if we don't suggest that they use ATV's maybe they won't have them. Nancy Williamson: Well, just as you say if two cars lodge on a house, you have to realize there is probably going to be more than two vehicles at that home because you got teenagers that drive, and the traffic. Something you can put on paper but the reality we all know that a two car garage family is probably going to be three and maybe four cars. Dorothy Wood: Are there any other questions for Ms. Williamson? Thank you so much for coming down today. Nancy Williamson: Thank you. Dorothy Wood: Eddie, do you have a few words? Eddie Bourdon: Given the heat, I will certainly keep it to a few words. First of all, with regard to ATVs, we will very gladly place a restriction against the open spaces being used by ATVs. Item #3 Munden Land, L.L.C. Page 9 Dorothy Wood: Thank you. Eddie Bourdon: I'm fairly certain the same is true with regard to Heritage Park. I can't speak to Ashville Park. The last thing that these homeowners in this area buying these houses are going to be subjecting themselves to, and on their land, which is what all this open space is. They own it and maintain it as an Association is ATVs. So, the deed restrictions for the community will prohibit the use of ATVs in any of the open space area. But in addition to that, we will certainly, as long as the drainage and all works deepen that ditch that is along the southern boundary. That is easily done, and we certainly have no problem re -grading and deepening that ditch. The Agricultural Disclosure Provision in the contract, we will be happy to put it in all the contracts. It is simple enough to do. We don't have an aversion or problem with that. I would point out one other thing. The borrow pits that are located across Princess Anne Road to the west of the site, both the EV Williams pit and the existing Baillio pit, and then the Gunther Pit, which is on Seaboard Road, and as the crow flies is not that far away. All of those pits within the next couple of years are going to be no longer be borrow pits. I understand Mr. Baillio is seeking to expand and dig a little bit more south of where he currently is but just to make sure that everyone is aware of that, and I actually have an application that is being filed with regard to the Williams and the existing Baillio pit, which will be coming forward in a few months. Long before these homes were built on this property those borrow pits will no longer be borrow pits. Dorothy Wood: Thank you Mr. Bourdon. Are there any comments? Questions? Motion? Yes sir. Barry Knight: I know that Ms. Williamson has come along way today and I appreciate it. Mr. Horsley and I would like to preserve agriculture as much as we can and we are glad that she is ARP Program. I would like to make a motion to approve this application with a modification of proffers between here and Council that the lots in the Munden, L.L.C. has a disclosure clause on their deed, and that they expand the ditch on the southern boundary. Dorothy Wood: Thanks Barry. Do I have a second? Donald Horsley: I'll second it. Dorothy Wood: A second by Mr. Horsley. A motion by Barry Knight. Mr. Miller. Robert Miller: I need to abstain from this vote. My firm is working on the project. Dorothy Wood: Thank you sir. Mr. Ripley. Item #3 Munden Land, L.L.C. Page 10 Ronald Ripley: I think the solution is a good solution. I would have been opposed to a fence. I think the contrary the blending of the agricultural use and to the transition use. I think it is a very good solution. Dorothy Wood: Are there any other comments? AYE 10 NAY 0 ABS 1 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE MILLER ABS RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE ABSENT 0 Ed Weeden: By a vote of 10-0, with one abstention, the application of Munden Land, L.L.C. has been approved with the modification. Dorothy Wood: Thank you. In Reply Refer To Our File No. DF-6180 TO: Leslie L. Lilley q FROM: B. Kay Wilson CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: March 17, 2006 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Munden Land, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on March 28, 2006. 1 have reviewed the subject proffer agreement, dated March 31, 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. BKW/ks Enclosure cc: Kathleen Hassen PREPARED BY: SUES, RDURDDN. OR AHERN & LEW, P.C. MUNDEN LAND, L.L.C., a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 31St day of March, 2005, by and between MUNDEN LAND, L.L.C., a Virginia limited liability company ("Munden"), Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of a certain parcel of property located in the Princess Anne District of the City of Virginia Beach, Virginia, containing approximately 71.68 acres and described in Exhibit "A" attached hereto and incorporated herein by this reference, which is herein referred to as the "Property"; and WHEREAS, the Grantor has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classifications of the Property from AG-1/AG-2 to Conditional R-10 Residential District and P-1 Preservation District with a PD-112 Overlay; 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 competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantors' rezoning application gives rise; and GPIN: 2414-20-6672 1 PREPARED BY. SYKES, BOURD©N. RA AHERN & LEVY. P.C. 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 R- 10 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, 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 covenant and agree that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantee, and other successors in interest or title and which will not be required of the Grantor until the Property is developed: 1. When development takes place upon that portion of the Property which is to be developed, it shall be as a single family residential community of no more than seventy-one (71) building lots substantially in conformance with the Exhibit entitled "Conceptual Land Use Plan Of MUNDEN FARMS, Princess Anne Road Virginia Beach, VA", dated 03/31/05 (Revision A), prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Land Use Plan"). 2. When the Property is developed, the "150' TRANSITION AREA BUFFER" as depicted on the Land Use Plan shall be dedicated to the Grantee for future improvement and public use as a bicycle trail and/or horse trail and Landscaped Open Space consistent with the Grantee's Comprehensive Land Use Plan. 2 PREPARED BY: SYKES. BOURDON, dM AHERN & LEVY. P.C. 3. When the Property is developed, approximately 42.6 acres of landscaped and vegetated open space, and lakes as depicted on the Land Use Plan shall be zoned P-1 Preservation District. All of the Open Space except the "150' TRANSITION AREA BUFFER" shall be dedicated to and maintained by the Property Owners Association. 4. When the Property is developed, the trails which are depicted on the Land Use Plan shall be created consistent with the "WOODLAND TRAIL" detail on the exhibit entitled "Detail Sheet Plan of Munden Farms, Princess Anne Rd., Virginia Beach, Va.", dated 03/31/05, Revision A, prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Detail Sheet"). 5. The community entrance and the proposed street sections of the roads within the community shall be constructed and installed substantially in conformance with the plans depicted on the Detail Sheet. When the Property is subdivided, any required additional right of way along the Property's frontage on Princess Anne Road shall be dedicated by the Grantor to the Grantee and a left turn lane from Princess Anne Road shall be constructed by the Grantor. 6. When the Property is subdivided, the residential building lots shall have a minimum of 12,000 square feet and they shall be subject to a recorded Declaration of Protective Covenants, Conditions and Restrictions ("Deed Restrictions") administered by a Property Owners Association, to which membership is mandatory. The Property owners Association shall be responsible for maintaining all Open Space areas, Common Areas, trails, easements and the entrance feature. The Deed Restrictions shall prohibit the operation of motorcycles or all terrain vehicles ("ATV's") within the Open Space Areas. The Deed Restrictions shall mandate that all fencing be uniform, black ornamental aluminum, no more than fifty percent (50%) opaque, no greater than 48 inches in height, similar in style with the fencing shown in the photograph labeled "Entrance Treatment Character into Munden Farms", on the Land Use Plan. 7. All residential dwellings constructed on the Property shall have visible exterior surfaces, excluding roof, trim, windows, and doors, which is no less than seventy-five percent (75%) brick. The architectural features and 3 PREPARED BY: SYK£S. BOURDON, M AH£RN & LEVY. P.C. exterior appearance of the dwellings shall be substantially in keeping with the appearance of the homes depicted in the photographs entitled "MUNDEN FARMS - HOMES" dated March 30, 2005 which have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning ("Elevations"). Those portions of the visible exterior surfaces, excluding roof, trim, windows and doors, which are not brick, shall be a Hardi-Plank or similar, high quality material. Any one story dwelling shall contain no less than 2400 square feet of enclosed living area excluding garage area and any two-story dwelling shall contain no less than 2600 square feet of enclosed living area excluding garage area. The front yards of all homes shall be sodded. The Deed Restrictions shall require each dwelling to have, at a minimum, a two (2) car garage. The required minimum setbacks for front yards and side yards adjacent to streets shall vary from 35 feet to 40 feet as specified for each individual lot in the table on the Land Use Plan. 8. The Grantor shall include the following disclosure in (a) the "Deed Restrictions"; (b) the subdivision plat(s); and (c) the contract(s) wherein they convey any residential lots depicted on the subdivision plat(s): THIS SUBDIVISION IS LOCATED ADJACENT TO A PARCEL ENROLLED IN THE GRANTEE'S AGRICULTURAL RESERVE PROGRAM AND MAY BE SUBJECT TO NOISE, DUST, ODOR, CHEMICAL SPRAYING, AND THE LIKE AS THE RESULT OF THE RAISING OF CROPS AND LIVESTOCK ON SAID PARCEL OR OTHER NEARBY PROPERTY. 9. A detailed landscaping plan for all open space areas shall be submitted to the Director of the Department of Planning, or his designee, for review and approval prior to subdivision approval. 10. The Grantors recognize that the subject site is located within the Transition Area identified in the Comprehensive Plan of the City of Virginia Beach, adopted on December 2, 2003. In addition to integrating significant open spaces with a low density, high quality, housing component as specified in the Comprehensive Plan, the party of the first part agrees to contribute the sum of Seven Hundred Fifty Dollars ($750.00) per lot to Grantee to be utilized by the Grantee to acquire land for open space preservation pursuant to Grantee's 4 PREPARED BY: 018 SYKES, ROURDON, MI AHERN & LEVY, P.C. Outdoors Plan. If the funds proffered by the party of the first part in this paragraph are not used by the Grantee anytime within the next twenty (20) years for the purpose for which they are proffered, then any funds paid and unused may be used by the Grantee for any other public purpose. The party of the first part agrees to make payment for each residential lot shown on any subdivision plat prior to recordation of that plat. 11. The Grantor will, if permitted to do so by the owner(s) of the parcel adjacent to the southern boundary of the Property, which parcel is enrolled in the Grantee's Agricultural Reserve Program, excavate and re -grade the existing drainage ditch which runs parallel and adjacent to the shared boundary line. The excavated and re -graded drainage ditch shall have a minimum depth measured from top of bank to toe of slope of four and one-half feet (4.51. 12. 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. Any references hereinabove to the R-10 and P-1 Zoning Districts and to the requirements and regulations applicable thereto refer to the Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a 5 PREPARED BY: ... SYKES. BOURDON, N.1i� AHERN & LEVY. P.C. resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantors covenant and agree that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantors and the Grantee. 31 WITNESS the following signature and seal: GRANTOR: Munden Land, L.L.C., a Virginia limited liability company By: �AL) WaYq1e F. Munden, Managing Member STATE OF VIRGINIA J -E-DY/ COUNTY OF & O eC h G1 � , to -wit: . The foregoing instrument was acknowledged before me this / day of z ' 1 , 2005, by Wayne F. Munden, Managing Member of Munden Land, L.L C., a Virginia limited liability company, Grantor. Not"lic My Commission Expires:. (; % 3 o,4 G; ��••�•'""' .., • Q'' •�Q1'IWE,�� •' •.V1RCi��1�''w ►~°rAAY QJ PREPARED BY: M SYKES. $OURDON. IM AHIRN & LEVY. P.0 EXHIBIT "A" All that certain lot, tract, piece and parcel of land, with the improvements thereon, and the appurtenances thereunto belonging, situate, lying and being in the City of Virginia Beach, Virginia, fronting on Princess Anne Road (f/k/a Pungo Road), designated and described on a certain plat and survey made by W. B. Gallup, County Surveyor, March 20, 1950, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 25, at Page 65, and which described the property more particularly as follows: BEGINNING at a post in the Eastern line of the right of way of the Princess Anne Road (f/k/a Pungo Road) at the intersection of the property hereby conveyed and the property of the Eddie James Farm, and from said point extending along the line of the property of James South 57' 21' East four hundred twenty eight (428) feet to a point; South 57' 21' East four hundred (400) feet to a point, South 57° 2 V East one thousand one hundred forty-five (1,145) feet to a point; thence continuing and running along the center line of a ditch South 57° 51' East one thousand fifty and six tenths (1,050.6) feet to a point; thence South 46° 54' West two hundred nine (209) feet to a point; South 57° 54' West two hundred thirty one and five tenths (231.5) feet to a point; South 54° 04' West seventy five (75) feet to a point, South 47° 50' West seventy two (72) feet to a point; South 61 ° West one hundred sixty five (165) feet to a point; South 49° 40' West one hundred twenty six and nine tenths (126.9) feet to a point; South 51 ° 45' West ninety nine and twenty five hundredths (99.25) feet to a point; South 60° 50' West seventy seven and twenty five hundredths (77.25) feet to a point; South 46° 45' West thirty nine and twenty five hundredths (39.25) feet to a point; South 51' 30' West one hundred (100) feet, more or less, to a point in the dividing line between the property hereby conveyed and the property shown on Plat as "Louise Land Halstead"; thence along said dividing line North 57° 25' West thirty nine (39) feet to a pipe; thence continuing along said dividing line North 57' 25' West two thousand six hundred ninety-two (2,692) feet to a pipe in the Eastern line of the right of way of the Princess Anne Road (f/k/a Pungo Road); thence North 39' 15' East three hundred ninety five and two tenths (395.2) feet to a pipe in the line of the Home Lot shown on said Plat; thence continuing along said road North 39' 15' East one hundred fifty and eight tenths (150.8) feet to a pipe; thence continuing along the Eastern line of the right of way of said road North 39' 15' East two hundred thirty nine and eight tenths (239.8) feet to a point; North 39' 15' East three hundred eighty six (386) feet to the post, the point of beginning, said tract of land being designated on said plat "Mrs. Phyllis L. Munden, 75.05 Ac." LESS AND EXCEPT that portion of property conveyed to William C. Munden and June B. Munden, husband and wife, by Deed dated October 25, 1982 and recorded in Deed Book 224, at Page 299, and as shown on plat recorded in Map Book 160, at Page 9. 8 LESS AND EXCEPT that portion of property conveyed to the City of Virginia Beach for right of way purposes, by Deed dated January 25, 1988, and recorded in Deed Book 2709, at Page 637. LESS AND EXCEPT that portion of property designated as "Parcel B, 2.002 acres" on that plat entitled "Subdivision of Property of MUNDEN AND ASSOCIATES, L.P., dated January 24, 2005, prepared by Gallup Surveyors & Engineers, Ltd., recorded in the aforesaid Clerk's Office as Instrument # 200505050067234. Said parcel having been conveyed to Richard L. Munden, by Deed dated June 15, 2005, and recorded in the aforesaid Clerk's Office as Instrument # 200506300100340. Said tract of land containing 71.680 acres is also designated "RESIDUAL PARCEL B-1" on that plat entitled, "SUBDIVISION OF PROPERTY OF MUNDEN AND ASSOCIATES, L.P.", dated January 24, 2005, prepared by Gallup Surveyors & Engineers, Ltd., which plat is recorded in the aforesaid Clerk's Office as Instrument # 200505050067234. GPIN: 2414-20-6672 C ONDInONALREZONE / MUNDEN / PRO FFER9 REV.7/ 19/05 PREPARED BY: SYKES, $OURDON. DR AHERN & 11W P.C. 0 Map o S Kevin Mi ) Not to Scale E�IEil I [��k E REHINEW' m noc ��o CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Kevin Miller — Conditional Use Permit — recreational facility of an outdoor nature (skateboard ramp), 120 Ojibwa Lane (DISTRICT 2 — KEMPSVILLE) MEETING DATE: March 28, 2006 ■ Background: An Ordinance upon Application of Kevin Miller for a Conditional Use Permit for a recreational facility of an outdoor nature (skateboard ramp) on property located at 120 Ojibwa Lane (GPIN 14772303250000). DISTRICT 2 — KEMPSVILLE ■ Considerations: The applicant requests a Conditional Use Permit to allow a skateboard ramp in the rear yard. The submitted physical survey depicts the proposed ramp 14-feet from the adjoining property line to the south and 25-feet from the adjoining property line to the east. The ramp dimensions are 17-feet by 30-feet. The proposed ramp is proposed at 5-feet in height. The applicant states the ramp is for his 5 and 8 year old children and his use. The ramp will only be used during daylight hours and will be chained at the bottom when not in use. Staff recommended to the Planning Commission that this request be denied. Staff fully recognizes the popularity of the skateboarding sport; however, that very popularity is what taints the sport in residential areas. The problems arise when the residential property ceases to be the primary use and the skateboard ramp becomes the recreational facility for the neighborhood. The noise associated with the use of the ramp and the gathering of the users most often disturbs the tranquility and peace within the neighborhood, no matter how good intentioned or diligent the ramp owner is in enforcing rules and regulations. Six adjoining properties will be affected by the use of the ramp. Due to the limited size of the lot and the proximity of neighboring dwellings, a backyard skateboard ramp at this location causes a legitimate nuisance for neighboring property owners. When in use, skateboard ramps create noise beyond the level of typical residential backyard activity. On a larger, more isolated lot, these ramps can exist without causing too much disturbance. Unfortunately, in this case, there is little that can be done to reduce the noise. Similar applications for this use have been requested and denied in the Thoroughgood and Kings Grant neighborhoods. Kevin Miller Page 2 of 2 ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 10-0 to deny the request. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends denial. Planning Commission recommends denial. Submitting DepartmentlAgency: Planning Department �— , ZV City Manager: KEVIN MILLER Agenda Item # 12 December 14, 2005 Public Hearing Staff Planner: Faith Christie REQUEST: Conditional Use Permit for a recreational facility of an outdoor nature (skateboard ramp) Kevin Miller 011 CUP Outdoor Recreational Facility (skateboard ramp) ADDRESS / DESCRIPTION: Property located at 120 Ojibwa Lane GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14772303250000 2 - KEMPSVILLE 11,834.44 square feet i The applicant requests a Conditional Use Permit to allow SUMMARY OF REQUEST development of the site for a skateboard ramp. The submitted physical survey depicts the proposed ramp 14-feet from the adjoining property line to the south and 25- feet from the adjoining property line to the east. The ramp dimensions are 17-feet by 30-feet. The proposed ramp will be 5-feet in height. The applicant states the ramp is for his 5 and 8 year old children and his use. The ramp will only be used during daylight hours and will be chained at the bottom when not in use. LAND USE AND ZONING INFORMATION EXISTING LAND USE: A single-family dwelling occupies the site. SURROUNDING LAND North: . Single-family dwellings / R-7.5 Residential USE AND ZONING: South: . Single-family dwelling / R-7.5 Residential East: . Single-family dwellings / R-7.5 Residential West: . Ojibwa Lane • Across Ojibwa Lane are single-family dwellings / R-7.5 Residential NATURAL RESOURCE AND The site is wooded and contains mature landscaping. There are no CULTURAL FEATURES: natural resources or cultural features associated with the site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Ojibwa Lane is a local residential street. Traffic is not affected by the request. WATER and SEWER: This site is connected to City water and sewer. SCHOOLS: School population is not affected by the use. The Comprehensive Plan recognizes this area as being within COMPREHENSIVE PLAN the Primary Residential area. The Comprehensive Plan recognizes the primacy of preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods in the Primary Residential Area. Established residential neighborhoods will be protected against invasive land uses that, due to their activity, intensity, size, hours of operation or other factors, would tend to destabilize them. Staff recommends denial of this EVALUATION AND RECOMMENDATION request for a recreational facility of an outdoor nature (skateboard ramp). Staff fully recognizes the popularity of the skateboarding sport, however that very popularity is what taints the sport in residential areas. The problems arise when the residential property ceases to be the prima ry use and the skateboard ramp becomes the recreational facility for the neighborhood. The noise associated with the use of the ramp and the gathering of the users most often disturbs the tranquility and peace within the neighborhood, no matter how good intentioned or diligent the ramp owner is in enforcing rules and regulations. Six adjoining properties will be affected by the use of the ramp. Due to the limited size of the lot and the proximity of neighboring dwellings, a backyard skateboard ramp at this location causes a legitimate nuisance for neighboring property owners. When in use, skateboard ramps create noise beyond the level of typical residential backyard activity. On a larger, more isolated lot, these ramps can exist without causing too much disturbance. Unfortunately, in this case, there is little that can be done to reduce the noise. Similar applications for this use have been requested and denied in the Thoroughgood and Kings Grant neighborhoods. Therefore staff recommends denial of the request. THIS IS TO CERTIFY THAT I ON JULY 21, 2DO4 SURVEYED THE PROPERTY SHOWN ON THIS PLAT. THE BUILDINGS STAND STRICTLY WITHIN THE TITLE LINES AND THERE ARE NO ENCROACHMENTS OF OTHER BUILDINGS, EXCEPT AS SHOWN. lsflQ 2 2 16 513' I STORY FRAME MOLISE 4120 53.X M 211WOO" W 7s.Ow 107AZ 70 commnm ROAD OknBWA LANE sa PHYSICAL SURVEY OF LOT 16, BLOCK 4, POCAHONTAS VILLAGE RM' THIS PROPERTY APPEARS TO FALL IN VIRGINIA BEACH. VIRGINIA FLOOD ZONE X AS SHOWN ON THE ftm NATIONAL FLOOD INSURANCE PROGRAM MAP KEWN M. JENNIFER M MILLER FOR THE CITY OF VIR03NIA BEACH COMMIAMNOAlsal-01rAE DATSD12WN DATE: JMYM 2004 RFJI70:6J.OER62TL, P.C. ELEVATION.SCAM; I -2� D IGBASE LOWEST FLOOR ELEVATION F.B.: 364 CAD TECH: DAG I.... V-40"M ftxvdrw PROPOSED SlTi!!,," FLAB Oil .w� a u •. AV 4 �- �I,� - ----- ---- ------ .- _.T�,�,__ K.=`t`..3�f ��r �`;�'�.N.�:�a. •'+"..f� .i '•.. rt.�.b "��� M,.n s:'�`__ae �:`s c..�..� �me.ti �,'� ��„� ;',F F 1. 1 Pending Conditional Use Permit Automotive Sales ZONING 11 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2. List all businesses that have a parent -subsidiary' or affiliated business entityZ relationship with the applicant: (Attach list if necessary) Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: fAttach list if necessary) i 2. List all businesses that have a parent -subsidiary` or affiliated business entiv relationship with the applicant: (Attach list if necessary) i i ❑ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. ' & 2 See next page for footnotes Condi OMI Use Petrmt Appkcaaan Page c of 10 Revised g; , 2004 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services and legal services. (Attach list if necessary) ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2.. "Affiliated business entity relationship" means "a relationship, other than parent -subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a dose working relationship between the entities.' See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and. accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, 1 am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing aycording to the instructions in this package. >!'eylN fLLL�_ Print Name Property Owners Signature cif different than applicant) Print Name Conditional Use-Penrit Appkawn Page 10 of 10 Revised W i2004 Item #12 Kevin Miller Conditional Use Permit 120 Ojibwa Lane District 2 Kempsville December 14, 2005 REGULAR Joseph Strange: The next application is Item #12, which is Kevin Miller. An Ordinance upon Application of Kevin Miller for a Conditional Use Permit for a recreational facility of an outdoor nature (skateboard ramp) on property located at 120 Ojibwa Lane, District 2, Kempsville. Dorothy Wood: Hello. Kevin Miller: Hello. I'm Kevin Miller. I'm the property owner at 120 Ojibwa Lane. Yeah. I'm just requesting the permission to build a skateboard ramp for my two children and myself. We would be the primary users. I can't say that there won't be an occasion that I wouldn't have a friend over to skate on an afternoon. That's basically my case. I don't attempt to be a nuisance and I want to be accommodating. So, basically what I need to do to complete my project that is what I want to do. Dorothy Wood: Okay. Do we have any questions? Thank you. Robert Miller: Let me ask him something. And I'm not related to Mr. Miller. The ramp that you're proposing to do is pretty large. Can you give me the size of it again please? Kevin Miller: Sixteen feet wide and about thirty feet long and about five feet high. Robert Miller: Faith, can you remind me what size is allowed? Faith Christie: One quarter pipe. Robert Miller: One quarter pipe. Faith Christie: One sheet of plywood. Robert Miller: Right, one sheet of plywood. Substantially less that what we're talking about. Is that one per house? Okay. Are there other speakers? Dorothy Wood: No. Mr. Miller hasn't finished yet has he? Robert Miller: Yes, I have. Item # 12 Kevin Miller Page 2 Eugene Crabtree: When we were out there we looked at your property. I noticed that there was not only this frame that you have started there but back to the left to where this picture shows, I saw some half sheets out there, and some ramps, and things like that, which you have out there also. Kevin Miller: I'm sorry. What was it? Eugene Crabtree: It looked like some ramps. It looks like some skateboard ramps or some other plywood structures that you had. There were three or four of them sitting there. Kevin Miller: No. What it is I have the wood that you see there to the left. The wood that you see there to the left that's covered and I also have plywood on the front porch that you may have seen. Eugene Crabtree: There were a couple of half ramps or something. It looked like jump ramps. Kevin Miller: I'm not sure I know what you're speaking of. I have no more ramps on that property. Like I said, there is plywood in the front of the house under the porch. Eugene Crabtree: I saw that. Kevin Miller: And that is all part of the construction of this ramp. That's all. I don't have any other ramps. Dorothy Wood: Are there any other questions? Thank you sir. Kevin Miller: Okay. Thank you. Dorothy Wood: Discussion? Ms. Anderson. Janice Anderson: I think skateboarding is great. It's a very popular sport and we should have more facilities to enjoy it. I am agreeing with the staff though on that these private ramps in backyards are not compatible with the next -door neighbor. I just know that my children did it and they did it in the street on the ramp. I can definitely tell you that in the back of my yard when they were on the ramp and when they weren't. It's not a sound that is quiet. It's not necessary a nuisance but it is loud and noticeable. I believe that it has been the policy of the Planning Department to deny the applications. This is not just particular to the neighborhood. I think it is the policy and I'm not in disagreement with the policy. Dorothy Wood: I wonder if we have had any complaints. Item #12 Kevin Miller Page 3 Kevin Miller: Can I address that? Dorothy Wood: Please wait a minute until we finish our questions and then I'll ask you to come up. Okay? Is there any other discussion? Joseph Strange: I would like to say that I concur with what Jan said. Dorothy Wood: Mr. Miller if you want to say one sentence please if it's new information? Kevin Miller: Okay. I hadn't seen this. I had talked to this neighbor and he is the one that originally called when he saw me constructing it. Dorothy Wood: Okay. Kevin Miller: And, I talked to him and he told me his concerns and I thought I addressed his concerns. He even told me that he would consider it and obviously he still is going to oppose it. Dorothy Wood: How old are your children Mr. Miller? Kevin Miller: My son is five and my daughter is eight. Dorothy Wood: So you could use just the small one? Kevin Miller: You know, I've been skating for fifteen years and a quarter pipe, for one you can't do it in your backyard because you can't run on it. You can't get any run. You have grass. Mount Trashmore, I think is great. You have the park out there. But I don't know if you've ever been there. I've had my daughter come off twice crying so I know not to take my kids out there because it is for older kids. I don't necessarily want them to be subjected to that. Dorothy Wood: Thank you sir. We appreciate you coming down. Kevin Miller: Okay. But I will have another say when the City Council hears this. Dorothy Wood: Yes sir. Kevin Miller: Okay. Thank you. Dorothy Wood: Ms. Anderson was that a motion? Janice Anderson: I'll go ahead and put that in a motion but I would like to say something Mr. Miller that I agree with you that there is probably not enough for the young kids. Item # 12 Kevin Miller Page 4 They will get eaten up when the bigger kids are around. It's a great sport. I enjoy it. They have competition now at the Oceanfront a lot during the ECSC and I know there are a lot of citizens that enjoy it and there are some young kids. But so far as backyards are concerned, I'll go ahead and recommend a denial would be my motion. Joseph Strange: I'll second it. Dorothy Wood: A motion by Ms. Anderson and seconded by Mr. Strange. Did you have a comment Gene? Eugene Crabtree: I was going to second it. Robert Miller: We go through this conversation and I'm a little slow on the uptake and I know we have been through this before. I know that City Council has also. It seems like to me like we talked about other facilities in the City. Bob, remember that there was a plan at some point to put them in some of the parks. Robert Scott: Yes. I do remember. Robert Miller: What's the schedule? Do you know? Okay. I just think that it is almost a sad commentary that I have been hearing about this for many years now. I can't remember how long ago Trashmore was redone but it's probably been three or four years. It seems like we're not attending to this issue the question of skateboarding throughout our City and it is something like Jan says, it's a very popular. It is something that we need to provide facilities so that we don't have to have folks getting in to each other's hair, and have an issue like this where I don't think what he is doing is inappropriate but where he is doing it is inappropriate is what we're doing. We're not succeeding here. Donald Horsley: Maybe we can ask Ms. Duke if she would carry that message to Parks and Recreation when she goes to Park and Recreation that we need a little relief from Parks and Recreation. Dorothy Wood: Thank you. Mr. Crabtree. Eugene Crabtree: After the next Parks and Recreation meeting, Ms. Duke will be there. I am on that advisory to that group. I will make a recommendation to them that they look into the possibility of having more skateboard ramps and facilities for skaters in our parks in our City. I don't know whether it will do any good or not but I'll be happy to make that recommendation. Dorothy Wood: Thank you. We have a motion by Ms. Anderson and second by Mr. Strange to deny the application. Item #12 Kevin Miller Page 5 AYE 10 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KATSIAS KNIGHT AYE MILLER AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE NAY 0 ABS 0 ABSENT 1 ABSENT Ed Weeden: By a vote 10-0, the Board has denied the application of Kevin Miller. Dorothy Wood: Thank you. Page 1 of 1 Faith Christie From: JOHN BONFIGLIO [chilichecker@cox.net] Sent: Tuesday, December 13, 2005 6:45 PM To: Faith Christie Subject: Item#12 Agenda December 14, 2005 Pubic Hearing Attachments: header.htm December 13, 2005 Faith Christie Planning Commission Office City of Virginia Beach, Va. Dear Commissioners, I am writing you because of the proposed skateboard ramp that my neighbor has started building in his back yard. Both my wife and I are deeply apposed to this being built. We believe this to be a noise problem as well as something that would detract from the eye appeal of my property if I was to decide to sell my house. We have lived in this house since 1989 and have invested in siding and windows to keep the house looking good and warm and inviting. We made the initial phone call to the zoning commission that resulted in stopping construction of this ramp.. We would like to thank you for your attention in this matter. Again, we are apposed to the building of this skateboard ramp in our neighborhood. Sincerely, John Bonfiglio 121 Narragansett Dr. Virginia Beach, Va. 23462 757-499-0479 In the agenda Item #12 December 14, 2005 Public Hearing GPIN 147772303250000 Conditional Use Permit for a recreational facility Of an outdoor nature (skateboard ramp) 12/14/2005 iraacy s& iv Map Not to Sc, R-50 1193 OR R-5 `0 P CUP - Auto Body Repair` 7' T ,,WAm rXMO®R CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Leo Luong — Conditional Use Permit — automobile repair garage (body work) — 3340 Chandler Creek Road (DISTRICT 3 — ROSE HALL) MEETING DATE: March 28, 2006 ■ Background: An Ordinance upon Application of Leo Luong for a Conditional Use Permit for an automobile repair garage (body work) on property located at 3440 Chandler Creek Road, Unit 102 (GPIN 14859470220000). DISTRICT 3 — ROSE HALL ■ Considerations: The applicant requests a Conditional Use Permit to allow an auto body shop to operate within the existing building on the property. There is an existing, one- story, 14,485 square foot building on the site that will be utilized for the body shop. The property is part of a former 33-acre rezoning request from R-51) Duplex District to Conditional 1-1 Light Industrial District that was approved by City Council on July 3, 2001. An auto repair garage, where body work and other heavy work are performed, is only permitted by a matter of right in the most intense zoning district of 1-2. All other districts require a use permit, allowing a closer review of the proposal to ensure compatibility with surrounding uses and zonings. Staff concludes that this is an ideal site for a body shop, as it is located within an industrially zoned commerce park, in an area encumbered by a restrictive AICUZ easement, and is a substantial distance from any residentially zoned properties. The Planning Commission placed this item on the consent agenda upon a finding that the use is appropriate for the site, is consistent with Comprehensive Plan recommendations, and is compatible with the AICUZ. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. All auto repairs must take place inside the building. 2. No outside storage of equipment, parts, or materials shall be permitted. Leo Luong Page 2 of 2 3. No outside storage of vehicles in a state of obvious disrepair shall be permitted. If vehicles in this condition require storage, then such vehicles shall be stored within the building 4. 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 Department/Agency: Planning Department City Manager. S l� _ �&'`Z LEO LUONG Agenda Item # 5 February 8, 2006 Public Hearing Staff Planner: Carolyn A.K. Smith REQUEST: Conditional Use Permit for auto body repair. Map H-10 '/ D ADDRESS / DESCRIPTION: Property located 3440 Chandler Creek Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14859470220000 3 — ROSEHALL 1.057 acres The applicant requests a Conditional Use Permit to allow an SUMMARY OF REQUEST auto body shop to operate within the existing building on the property. There is an existing, one-story, 14,485 square foot building on the site that will be utilized for the body shop. The property was part of a 33 acre rezoning request from R-5D Duplex District to Conditional 1-1 Light Industrial District that was approved by City Council on July 3, 2001. The Conditional Use Permit for an auto repair garage, such as the proposed auto body shop, is required by the City's Zoning Ordinance in the 1-1 Light Industrial District. LAND USE AND ZONING INFORMATION EXISTING LAND USE: This site is located within Chandler Creek Industrial Park, located on Rosemont Road near its intersection with Dam Neck Road. The site has an existing one-story, brick and block building on it. SURROUNDING LAND North: . Undeveloped, vacant land / P-1 Preservation District USE AND ZONING: South: . Chandler Creek Road, warehouse / Conditional 1-1 Light Industrial District East: . Warehouse / Conditional 1-1 Light Industrial District West: . Warehouse / Conditional 1-1 Light Industrial District NATURAL RESOURCE AND The majority of the site is impervious. There are no significant CULTURAL FEATURES: environmental or cultural resources on this property. is impacted by a restrictive AICUZ easement. The federal government holds easements on the site and limits the types of uses that may develop and operate on the site. The proposed use.is acceptable under the easement. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Chandler Creek Road is a local roadway that serves the industrial sites located within the industrial park. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Chandler Creek No Data 6,200 ADT (Level of Existing Land Use — 76 Drive Available Service "C") — 9,900 ADT' ADT (Level of Service "D") Proposed Land Use 3— 35 ADT Average vary Trips 2 as defined by typical industrial uses 3 as defined by auto body garage WATER: This site is connected to City water. There is a 10 inch City water main in Chandler Creek Road. SEWER: This site is connected to City sanitary sewer. There is a 10 inch gravity sanitary sewer main in Chandler Creek Road. COMPREHENSIVE PLAN The Comprehensive Plan recognizes this site to be within Strategic Growth Area 11, West Holland Area. The portion of this Strategic Growth Area located north of Dam Neck Road between Rosemont and Holland is recommended for non-residential uses including office, light industrial and limited retail. EVALUATION AND RECOMMENDATION Staff recommends approval of this request with conditions recommended by staff. The recommended conditions are provided below. The proposed Conditional Use Permit for an automobile repair garage is in keeping with the land use planning policies outlined in the Comprehensive Plan. The Plan states that proposed development within Strategic Growth Areas should work to accomplish "efficient use of land resources, full use of urban services, compatible mix of uses, a range of transportation opportunities, and detailed human scale" (Chapter 2, Comprehensive Plan). This site was part of a 33 acre rezoning that was approved by City Council in 2001. This rezoning permitted up to 29 light industrial lots on the property. An auto repair garage, where body workand-other heavy work are performed, is only permitted by a matter of right in the most intense zoning district of 1-2. All other districts require a use permit, allowing a closer review of the proposal to ensure compatibility with surrounding uses and zonings. This is an ideal site for a body shop, as it is located within an industrially zoned commerce park, in an area encumbered by a restrictive AICUZ easement, and is a substantial distance from any residentially zoned properties. CONDITIONS 1. All auto repair must take place inside the building. 1. No outside storage of equipment, parts, or materials shall be permitted. 2. No outside storage of vehicles in a state of obvious disrepair shall be permitted. If vehicles in this condition require storage, then such vehicles shall be stored within the building 3. 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. X l 0 z z �#P W r - 7k #fN " Is s � `: EXISTING SITE PLAN Jill v47 Am gg a ��gy�x „�wD • • . • ..ems !9= (r f u !DR EXISITING BUILDING ZONING HISTORY 1 08/24/04 CHANGE OF ZONING (R-5D to Granted Conditional 0-1 & R-5D 2 07/03/01 CHANGE OF ZONING (R-513 to Granted Conditional 1-1) 09/22/98 CHANGE OF ZONING (R-5D to Granted Conditional 1-1) CONDITIONAL USE PERMIT (processing Granted of woody vegetation) 10/27/98 RECONSIDERATION OF CONDITIONS Denied 3 11/12/02 CONDITIONAL USE PERMIT (church Granted expansion) 4 09/14/99 CHANGE OF ZONING (R-5D to Granted Conditional 1-1 5 08/10/04 CHANGE OF ZONING (R-51D to Granted Conditional 1-1 & 1-2 and P-1 Preservation District DISCLOSURE STATEMENT DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Le 0 Lwon 2. List all businesses that have a parent -subsidiary' or affiliated business entW relationship with the applicant: (Attach list if necessary) WA cK Check here if the applicant is NOT a corporation, partnership, firm; business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) pe rFec+ Pf-ope 4 it' S L_}L-(y. 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) NIA D Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & 2 Zee next page for footnotes DISCLOSURE STATEMENT DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requestedproperty use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services and legal services: (Attach list if necessary) ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation."See State anJ Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 Affiliated business entity relationship" means "arelationship, other than parent -subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities.' See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: l certify that the information contained herein is true and accurate.. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing accordin o the ' tructions in this package. IN pplicant's Signat _ Print Name ��rfea} rf'rcQrr{1e3 Z.L� Property Owner's Signature lit different than applicant) Print Name Car:d:iiexa! Use Permit :lppiicawn Pagt 10 of 10 Item #5 Leo Luong Conditional Use Permit 3440 Chandler Creek Road, Unit 102 District 3 Rose Hall February 8, 2006 CONSENT Janice Anderson: The next item is Item #5 Leo Luong. This item is an Ordinance upon Application of Leo Luong for a Conditional Use Permit for an automobile repair garage. Is there a representative for Leo Luong? Okay. It's going forward under three conditions. Gene Crabtree will explain this application. Eugene Crabtree: This is a request for a Conditional Use Permit to allow an auto body shop to upgrade an existing building that is in an industrial area already. It is in the 60 to 65db zone but it has military easements over the property but it is in fitting with the other businesses that are in the general area. The building, as I said, is already in place and it should be a good use for this particular spot in this particular area so we chose to put it on consent agenda. Janice Anderson: Before we go ahead, do we have any objections to Item #5? I would like to make a motion with regard to consent agenda Item #5 Leo Luong with three conditions. Barry Knight: A motion has been made. Do I have a second? Dorothy Wood: Second. Barry Knight: Okay, a second by Dot Wood. Is there any discussion? Let's call for the question. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved Item #5 for consent. Conditional Zoning Change from B-3 to B-4C CUP - Multi -Family Dwelling Units ri> CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Virginia Beach City Center, L.L.C. — (a) Change of Zoning District Classification and (b) Conditional Use Permit (multi -family dwellings), 4752 Virginia Beach Boulevard (DISTRICT 4 — BAYSIDE) MEETING DATE: March 28, 2006 ■ Background: a) An Ordinance upon Application of Virginia Beach City Center, L.L.C. for a Change of Zoninq District Classification from B-3 Central Business District to Conditional B-4C Central Business Mixed Use District on property located at 4752 Virginia Beach Boulevard (GPIN 14773504680000). DISTRICT 4 — BAYSIDE b) An Ordinance upon Application of Virginia Beach City Center, L.L.C. for a Conditional Use Permit for multi -family dwellings on property located at 4752 Virginia Beach Boulevard (GPIN 14773504680000). DISTRICT 4 — BAYSIDE ■ Considerations: The applicant proposes to rezone the existing B-3 Central Business District property to Conditional B-4C Central Business Mixed Use District to build a mid - rise mixed -use building containing retail, office and residential. The applicant also requests a conditional use permit for multi -family dwellings. The building will house approximately 13,000 SF of retail on the first floor, 78,000 SF of office condominiums on six floors and 16 units of residential condominiums on two floors. A five story parking garage shall be built to the rear of the mid -rise and provide approximately 400 parking spaces, which will be more spaces than the required number of 358 parking spaces for the planned uses. Urban design considerations recommended by the Comprehensive Plan were used to relate the orientation and massing of the building to the street. The presence of windows and doors as well as other architectural elements provide detailing to the mid -rise structure. The Central Business District Association Design Review Committee (CBDA DRC) reviewed the proposal and endorsed the overall concept. Aesthetic comments provided by the CBDA DRC regarding design elements on the building facade and streetscape may be addressed during more detailed plan reviews. The proposal is compatible with adjacent business areas and will serve to provide a stimulus to additional urban activity west of Town Center. Virginia Beach City Center, L.L.C. Page 2 of 2 The Planning Commission placed the items on the consent agenda upon a finding that the proposal is consistent with the Comprehensive Plan recommendations, meets the Mixed Use Design Guidelines, and will provide a stimulus for additional activity west of the Town Center. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve the requests as proffered and with the following conditions for the multi- family dwellings: 1. The applicant shall provide a photometric lighting plan for the parking garage for review by appropriate City staff. The parking garage lighting shall be in accordance with recommendations by the Illumination Engineering Society of North America. All fixtures shall be appropriate height and design and angled to prevent any direct reflection and /or disability glare toward adjacent uses and city streets. 2. A hard finish material shall be used on the first floor fagade rather than an EIFS material as shown on the submitted elevation drawings. IN Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Y9__ Submitting DepartmenttAgency: Planning Department City Manager: S`�,Z VIRGINIA BEACH CITY CENTER, L.L.C. Agenda Items 19 & 20 February 8, 2006 Public Hearing Staff Planner: Karen Prochilo REQUESTS: 19) Change of Zoning District Classification from B-3 Central Business District to Conditional B-4C Central Business Mixed Use District. 20) Conditional Use Permit for multi -family dwellings. ADDRESS / DESCRIPTION: Property located at 4752 Virginia Beach Boulevard. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14773504680000 4 — BAYSIDE 1.93 acres SUMMARY OF REQUEST The applicant proposes to rezone the existing B-3 property to Conditional B-4C to build a mid -rise mixed -use building containing retail, office and residential. The applicant also requests a conditional use permit for multi -family dwellings. The building will house approximately 13,000 SF of retail on the first floor, 78,000 SF of office condominiums on six floors and 16 units of residential condominiums on two floors. A five story parking garage shall be built at the back of the mid -rise and provide approximately 400 parking spaces. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Vacant restaurant site with building and paved parking SURROUNDING LAND North: . Multi -story office building and parking / B-3 Central Business USE AND ZONING: District South: • Across Virginia Beach Boulevard, retail / B-3 Central Business District VIRGINIA BEACH CITY Ag East: . Across First Street is retail / B-3 Central Business District West: . Bank / B-3 Central Business District NATURAL RESOURCE AND Currently on site is a vacant building with paved parking. CULTURAL FEATURES: There are no natural resources or cultural features associated with 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): Virginia Beach Boulevard in the vicinity if this application is considered an eight -lane, divided major urban arterial. The Master Transportation Plan proposes a divided facility within a 150 foot right of way. Kellam Road in the vicinity if this application is considered a four -lane, undivided local street. First Street in the vicinity if this application is considered a two-lane, undivided local street Neither Kellam Road or First Street is included in the Master Transportation Plan. The Pembroke Area Comprehensive Transportation Plan (CIP 2-238) is ongoing and involved a transportation study for the Central Business District surrounding Town Center. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Virginia Beach 35,236 ADT 34,940 ADT (Level of Service "C") Existing Land Use —1017 ADT Existing Land Use s- 1267 ADT Boulevard 56,240 ADT' (Level Proposed Land Use 4- 576 of Service "D") Proposed Land Use 5 - 862 Proposed Land Use 6 - 090 Kellam Road 3,748 ADT 13,100 ADT (Level of Service "C") First Street: No traffic counts available. Average Daily Trips z as defined by restaurant weekday s as defined by restaurant weekends °as defined by retail - 13,056 SF a as defined by office - 78,336 SF Gas defined by condos -16 units There are no proposed roadway improvements for Kellam Road or First Street along the western or eastern property lines of the subject parcel. Additional detailed comments from Traffic Engineering will be made when the required Traffic Impact Study (TIS) is provided during site plan review. VIRGINIA BEACH CITY WATER: There are a 20 inch, 16 inch and 10 inch City water mains in Virginia Beach Boulevard fronting the site. There is a 20 inch City water main in Kellam Road. This site has an existing 2-inch water meter, which may be used or upgraded. SEWER: This site must connect to City sanitary sewer. Analysis of Pump Station #364 and the sanitary sewer collection system is required to ensure future flows can be accommodated. There is an 8-inch City gravity sanitary sewer main in First Street fronting a portion of the site. FIRE: A complete review of this site will be done during the site plan review process and building code review. SCHOOLS: School Current Enrollment Capacity Generation' Change 2 Pembroke Elementary 503 591 1.3 1.0 Independence Middle 1413 1307 0.6 1.0 Ba side High 2012 19861 0.9 11.0 ' `generation' represents the number of students that the development will add to the school 2 "change" represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be positive (additional students) or negative (fewer students). COMPREHENSIVE PLAN The Comprehensive Plan recognizes this area as being within the Strategic Growth Area 4. Mixed uses offering an efficient use of land resources, full use of urban services, detailed human -scale design and a compatible mix of uses are recommended for this area. For properties within Strategic Growth Area 4, the Plan emphasizes, "...these areas are designated to absorb most of the city's future growth, both residential and non-residential and, as such, are planned for more intensive uses than most other areas of the city. Integrating, not separating, a diverse cluster of land uses result in a compact, yet compatible mix of uses. They include office, retail, service, hotel and where appropriate, residential uses," (page 57, Policy Document). This rezoning request is in keeping with the policies of the Comprehensive Plan. A streetscape plan showing how the area is front of the building will accommodate pedestrian access, landscaping and lighting is recommended for site plan review. EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the proffers submitted by the applicant and with the conditions recommended by staff. The proffers and conditions are provided below. The applicant's proposal of the existing property to build a mid -rise mixed -use building containing retail, office and residential is in conformance with the Comprehensive Plan's recommendations for this area. The proposal will also provide a five story parking garage built at the back of the mid -rise with approximately 400 parking spaces. This number of parking spaces would be more spaces than the required number of 358 parking spaces for the planned uses. Urban design considerations were used to relate the orientation and massing of the building to the street. The presence of windows and doors as well as other architectural elements provide human -scale to the mid -rise structure. This proposal helps establish a presence of the built environment of an urban area across from the Town Center. The proposal would also compatible with adjacent business areas. The Central Business District Association Design Review Committee (CBDA DRC) reviewed the proposal and endorsed the overall concept. Aesthetic comments provided by the CBDA DRC regarding design elements on the building fagade and streetscape may be addressed during more detailed plan reviews. The Department of Economic Development also reviewed the application and supports this proposal. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to "offset identified problems to the extent that the proposed rezoning is acceptable," (§107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When developed, the Grantors shall develop the Property in substantial conformity with the conceptual site plan prepared by MSA, P.C., dated September 22, 2005 and titled "Conceptual Site Layout of City Center, 4752 Virginia Beach Boulevard, Virginia Beach, VA"(the "Conceptual Plan"), a copy of which is on file with the Department of Planning and has been exhibited to the City Council. PROFFER 2: When developed, the Grantors shall develop the structures on the Property using architectural designs and building materials in substantial conformity with the elevations and plan titled "Virginia Beach Boulevard Town Center West" dated January 20, 2006 and December 16, 2005, prepared by Thomas Hamilton & Associates, which has been exhibited to the City Council and are on file with the Department of Planning. PROFFER 3: When developed, the Grantors shall install streetscape landscaping in accordance with a streetscape landscaping plan that is consistent with the Landscape Guidelines set forth in the Central Business District Urban Guidelines dated February 4, 2004, prepared by CMSS Architects, PC (the "CBD Guidelines"). The streetscape landscaping plan shall include the use of brick pavers and sidewalk plantings. In developing the streetscape landscaping plan, the Grantors shall consult with a representative of the Virginia Bach Economic Development Authority, and the final streetscape landscaping plan shall be approved by the Planning Director or his designee. After installation, Grantors shall be responsible for maintaining any landscaping and sidewalk improvements installed in accordance with the landscaping plan. VIRGINIA BEACH CITY Agei PROFFER 4: Building signage shall be install in accordance with the Architectural Plans and shall comply with the Signage Guidelines and Standards set forth in the set forth in the "CBD Guidelines. All street -level retail shall consist primarily of awning signage, and not "box signage" or signage that is internally illuminated. Final building signage shall be submitted to and approved by the Planning Director or his designee. PROFFER 5: Further conditions lawfully imposed by applicable development ordinances may be required by the Grantee during detailed site plan review and / or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. STAFF COMMENTS: The proffers listed above are acceptable as they dictate the level of quality of the project and ensure its consistency with the recommendations of the Comprehensive Plan. The City Attorneys Office has reviewed the proffer agreement dated January 23, 2006, and found it to be legally sufficient and in acceptable legal form. CONDITIONS 1. The applicant shall provide a photometric plan for the parking garage for review by appropriate City staff. The parking garage lighting shall be in accordance with recommendations by the Illumination Engineering Society of North America. All fixtures shall be appropriate height and design and angled to prevent any direct reflection and /or disability glare toward adjacent uses and city streets. 2. A hard finish material shall be used on the first floor fagade rather than an EIFS material. 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. PROPOSED CONCEPTUALPLAM- � tUi'?2tt�'�+XIh7E�i�/e i�Lt - :I 1ST ��1�t3� #J�1 ' # � • 3 PROPOSED LAN VIRGINIA BEACH CITY Agei v y a. a o i rt c k 4 F «w � L h A L 1 r t L11.1 1 �e. 3 it Vol I; i � I u 19 N j 1 } s r 3r pp rl 't r (a t� a s 3 i US i 11[ 1 11/08/04 Conditional Use Permit - Fuel sales Granted 2 08/14/01 Modification of Conditions — Auto sales & service Granted 07/13/99 Conditional Use Permit — Motor vehicle sales Granted 3 01/10/95 Conditional Use Permit — Indoor recreational facility Granted 4 01/22/90 Conditional Use Permit - Billiards Granted 5 05/09/88 Conditional Use Permit — Motor vehicle sales Granted ZONING HISTORY VIRGINIA BEACH Z W 2 F N w M Z) N 0 1ii Cs.rS�U.x 2tm 0 +per E E C � � i6 m m tilt�4na 1-01 mpg.=m N sa .C q.•N 3. W E.C. Las RSW ate- NcMgo a_$ Zm 0 or.`'4a �' 4 C 8� �e bc' mmm m�°'p� Smv m M p tff �Cmaony 5 a59--s o=° m ip cMM 9B Eoo va ML2 W C' w+ $s 0 Gm. rn a �yty � o» Q� a ¢m to o�5. �n�� :41,' 2r� EE oz m U L v 2tam o�Mm a ,� y 9 W((1 W G}y (A Gy '_pas 00N � µ C � ncaEoMn.0 a 0 2 c o m E o " c y °° :c �m o �Q m (q3�� W �� o mm 02 ;'aj uilr W a) DN1 �Q C W ti' mp` Z C � as—#� W..Gc -¢ 4EE O LE.. L' cc �c ais a�m��W _ $ gQ¢ O mC m m ma's mn$ o� o 'j M yi S C4� O W C. .'Co aL1 .rd 'I °° L � W C mW.N G.0 W -Wa O fmp 30 mOC.0� LM m0. m L nfQ H ,0 0 -� _t 0 O =i ems' 55 3 L�[ pp ❑ 8 = 7 DISCLOSURE VIRGINIA BEACH CITY Agei Item #19 & 20 Virginia Beach City Center, L.L.C. Change of Zoning District Classification Conditional Use Permit 4752 Virginia Beach Boulevard District 4 Bayside February 8, 2006 CONSENT Janice Anderson: The next item is Item #19 & 20, Virginia Beach City Center, L.L.C. It's an ordinance upon application for Virginia Beach City Center, L.L.C. for a Change of Zoning Classification from B-3 Central Business District to Conditional B-4C Central Business Mixed Use District on property located at 4752 Virginia Beach Boulevard and also for an application for a Conditional Use Permit for multi -family dwellings on property located at 4752 Virginia Beach Boulevard. This is in the Bayside District. Mr. Maynard. Jeff Maynard: Good afternoon Ms. Anderson and members of the Planning Commission, Jeff Maynard on behalf of Virginia Beach City Center, L.L.C. Thank you for allowing the application to proceed on the consent agenda. The applicant is agreeable with the proffered conditions as well as those attached to the Use Permit. Janice Anderson: Thank you Mr. Maynard. It has five proffers and two conditions. Is there any objection to agenda Item #19 & 20? Mr. Ripley, could you please review this? Barry Knight: Come forward please. Janice Anderson: I'm sorry. Barry Knight: Welcome. State your name. Lenny Burns: My name is Lenny Burns. I'm with Great Atlantic Management Release. We release and manage the current Pembroke Office center right behind this property. I don't know if I really have any objection. We're always for property being improved. My concern, I guess is not seeing any renderings of the property and how it is going to back out and affect our properties, if at all. I didn't see any type of renderings of the buildings, which are going on there and parking and how that may or may not affect our properties, which we release and manage for the ownership. I'm not saying that I have any real objection. I just have a concern as long as it doesn't affect anything. Barry Knight: Have you had an agenda package? We have some renderings and elevations right on the corner there of that package. Plus, we're flipping through them here. Item # 19 & 20 Virginia Beach City Center, L.L.C. Page 2 Lenny Burns: Okay. Barry Knight: It has been placed on consent because there was no neighborhood local opposition and no one on the Commission has any opposition. We'll continue to keep it on consent or if you would like to have a chance to review them, we can pull it. Lenny Burns: A concern is how is that going to be sitting on the property as far as the property itself? You have a parking garage there. Our building backs up to that little flagstaff, that little piece there. I guess our apartment uses that entrance, which I guess they are going to take as part of their parking garage there. The parking garage seems like it was several stories at least. Ronald Ripley: Five stories. Lenny Burns: Five stories. A building next to us is five stories tall. So how close is that going to be to our building? It seems like it is going to be right there, blocking our view of our people that have offices in that building itself. Barry Knight: If you would like, we can keep it on consent or if you would like to you can get an agenda. You can meet with the applicant's attorney outside. If you have concerns we will hear it. If you don't have concerns we will put it back on the consent agenda? Would you like to do that? Lenny Burns: Yes. Barry Knight: Okay. We will pull it. Get an agenda package and I'm sure Mr. Maynard will meet you out in the hall and he will explain it to you. Lenny Burns: Okay. Thank you very much. Barry Knight: Yes sir. Jeff Maynard: Just for the record, Ms. Prochilo had passed out a substitute sheet in the earlier agenda. There was, I believe actually five proffers instead of two. I just wanted to point that out. Thanks. Janice Anderson: Okay. Thank you. LATER Barry Knight: Mr. Maynard. Did you come to some sort of consensus out there? Jeff Maynard: Yes we did. The applicant and the adjacent property owner have agreed to meet between now and the City Council hearing. They don't disagree or oppose the Item #19 & 20 Virginia Beach City Center, L.L.C. Page 3 general intent. The issue is the, I guess the positioning of their building to the parking garage that we're proposing. There is a distance and I don't know how many feet it is. Our plan doesn't show how close we are to the existing Pembroke Building. But we're going to meet with our architects and address the issue to try and resolve it before Council. Barry Knight: Does he withdraw his objection for putting it on consent? Jeff Maynard: Yes he does. Barry Knight: He does withdraw it? Would he please come up and state that please? Welcome sir. Please state your name again. Lenny Burns: We withdraw. Barry Knight: Okay. Thank you. Lenny Burns: We'll proceed with them. Barry Knight: Thank you sir. We'll place this back on the consent agenda. Jan, I don't believe Ron has discussed this one yet. Janice Anderson: No. This was a consent item on Item #19 & 20 with five proffers and two conditions. Ronald Ripley: The Planning Commission looked at this item and the staff had recommended that this item be approved. The Commission felt that it ought to be on consent. It's a rather large application from the standpoint of building size. It's 117,000 square feet of building. It's a mixed use. It's being applied to the B-4C. It's currently zoned B-3. B-4C allows the mixed use. It allows ground floor in this particular building each floor is a bout 13,000 square feet. The ground floor is retail and then floors 2 through 7 are office. It looks like it will be office condominium and the top two floors are residential condominiums of 16 units. And adjacent to the property is a parking deck that the building face up on to Virginia Beach Boulevard in a very urban fashion. The building is very urban in design. The parking deck to the rear contains about 400 spaces. It's five stories in height and actually the parking requirement, according to staff, exceeds the minimum required, which is good. The applicant is actually building a bigger facility than he is typically required to by the code. We looked at it. The exterior office building will, we believe will blend in with the Town Center concept that is developing in the Central Business District. The Central Business District Architectural Review Board actually met, reviewed it, recommended. They liked it. So the Planning Commission believes that it ought to be consented. That is why we placed it on consent. Item #19 & 20 Virginia Beach City Center, L.L.C. Page 4 Janice Anderson: Mr. Chairman, I would like to make a motion to approve Item #19 & 20, the application of Virginia Beach City Center, L.L.C., which is a change in zoning from B-3 to B-4C Central Business Mixed Use District and this is property at 4752 Virginia Beach Boulevard and also for a Conditional Use Permit for multi —family dwelling on the same property. Barry Knight: Thank you. Seconded by Dot Wood. We have a motion on the floor for consent Item #19 & 20. The motion made by Jan Anderson and a second by Dot Wood. Is there any discussion? Let's call for the question. AYE 11 NAY 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE ABS 0 ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has approved Item #19 & 20 for consent. Barry Knight: Thank you. In Reply Refer To Our File No. DF-6333 TO: Leslie L. Lilley FROM: B. Kay Wilsow CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: March 17, 2006 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Virginia Beach City Center, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on March 28, 2006. 1 have reviewed the subject proffer agreement, dated January 23, 2006, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ks Enclosure cc: Kathleen Hassen Document Prepared By: Troutman Sanders LLP 222 Central Park;A-venue Suite 2000 Virginia Beach, Virginia 23462 AGREEMENT THIS AGREEMENT (the "Agreement") is made as of this 23'"d day of January, 2006 by and between GIROLAMO MAZZURCO and MARGARET MAZZURCO (collectively,. the "Mazzurcos"), the current owners of that certain property located on Virginia Beach Boulevard,. in Virginia Beach, Virginia,, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"), and VIRGINIA BEACH CITY' CENTER, LLC, a Virginia limited liability company CNBCC") the contract purchaser. of the property (hereinafter referred to collectively as the "Grantors"), and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as. "Grantee"); WITNESSETH.. WHEREAS, the Grantors have initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the property from B-3 to Conditional B-4C and WHEREAS, the Grantee's policy is to provide, only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other. land development legislation; and. WHEREAS, the Grantors acknowledge that the competing and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to recognize the effects of the change and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to Iand similarly zoned B-4C are needed to cope with the situation to which the Grantors' rezoning application gives rise, and WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the. GPIN NO.: 1477-35-0468-0000 Zoning Map, in addition to the regulations provided for in the existing B-4C zoning districts by the existing City's Zoning ,Ordinance (CZO), the following reasonable conditions related to the physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and, the need. for which is generated by the- rezoning; and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until asubsequent amendment changes the, zoning on the - Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are ainended or varied by written instrument recorded in the Clerk's. Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record; owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of the, ordinance or resolution adopted by the governing body of the Grantee; after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15 2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval; hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these proffers (collectively, the "Proffers") shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: I 1. When developed, the Grantors shall develop the Property in substantial conformity with the conceptual site plan prepared by MSA, P.C., dated September 22;,2005, and titled "Conceptual Site Layout of City Center, 4752 Virginia.Beach Blvd, Virginia.Beach, VA" (the "Conceptual Plan"), a copy of which is on file with the Department of Planning and has been exhibited to the City Council. 2. When developed, the Grantors shall develop the structures on , the Property using architectural designs: and building materials in substantial conformity with the elevations and plan titled "Virginia Beach Boulevard Town Center West" dated January 20, 2006 and December 16, 2005, prepared by Thomas Hamilton & Associates (.the "Architectural Plans"), which have been exhibited to the City Council and are on file in the Department of Planning: 3., When developed, the. Grantors shall install <streetscape Landscaping in accordance with a streetscape landscaping plan that is consistent. with the Landscape Guidelines: set forth in. the Central Business District Urban Guidelines dated February 4, 2004, prepared by CMSS Architects, PC (the "CBD Guidelines"). The streetscape landscaping plan shall include. the use of brick_ pavers- and. sidewalk plantings. In developing the streetscape landscaping plan, the Grantors shall consult with a representative, of the Virginia Beach Economic Development Authority, and the final streetscape landscaping plan shall be', approved by the Planning Director oT his designee. After installation, Grantors, shall be responsible for maintaining anylandscaping and. sidewalk improvements installed in accordance, with the ;landscaping plan. 4. Building sgnage shall be installed in accordance with the Architectural Plans and shall comply with 'the::Signage Guidelines and Standards set forth in the CBD Guidelines. All street -level retail shall consist primarily of awning signage; and not "box signage' or signagew that is internally -illuminated. Final building signage shall besubmitted to and approved by the Planning Director or his designee. 5. Further conditions lawfully imposed by applicable. development ordinances may be required by the Grantee during detailed site plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable. City Code requirements. 3 All references hereinabove to zoning districts and to regulations applicable thereto; refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City ;of Virginia Beach, Virginia. shall be vested with all necessary authority on behalf of the ,govemirig body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions; including (i) the; ordering in uniting of the remedying of any noncompliance with such conditions; and (ii) the bringing of legal action or suit to ensure compliance with such conditions; including mandatory :or prohibitory injunction, abatement,, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the: issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made. pursuant to the provisions of the: City `Code, the CZO or this Agreement., the Grantors shall petition the- governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the reap the existence of conditions attaching to the zoning of the subject Property on the reap and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and ;in the Department of Planning -and that they.shall be recorded in the Clerk's Office of 'the Circuit Court of the City of Virginia Beach, Virginia and indexed in the'name of the Grantors and Grantee. - Upon acquisition of the Property by VBCC VBCC shall succeed to all rights and obligations of the Mazzurcos under this Agreement, and the Mazzurcos shall have no further rights or obligations of a "Grantor°"under this Agreement. [SIGNATURE PAGES FOLLOW] 4 JAN 23 2006 3:18 PM FP, TROUTMANSANDERS TO 913365843728 P.06 IN WITNESS WIMREOF, the undersigned Grantors execute this Agreement as of the date first written above. GRANTORS: Girolamo Mazzurco Margaret Mazzurco �c"� 4V---V"-L0 VIRGINIA BEACH CITY CENTER, LLC, a Virginian limited liability company By rn Name: irolamo Mazzurco Title: Member RE STATE OF NORTH CAROLINA COUNTY OF ALAMANCE The foregoing instrument was sworn to and ow d before the t ''21hday of January , 2006- by Gimlamo Mazzurco, w is a}iy lrno o �tuced driver's license (NC) as identifiCatio / CHARLES N.' ED My Commission Expires: 09/22/2007 CHARLES N. STEDMAN NOTARY PUBLIC STATE OF NORTH CAROLI$LAMANCE COUNTY, N.C. COUNTY OF ALAMANCE The foregoing instuument was sworn to a January , 2006, by Margaret Mazz , who is driver's license (NC) as identifi ion. My Commission Expires: 09/22/2007 Not Public CHARLES" N. ST 5 before me this 24 day of known to mks vroduced CHARLES N. STEDMAN NOTARY PUBLIC ALAMANCE COUNTY, N.C. JAN 23 200E 3:19 PM FR TROUTMANSANCERS TO 913365843728 X STATE OF NORTH CAROLINA COUNTY OF ALAMANCE The fors ng instrument was sworn to an =el*b--lnlAallyknowy edged before me this 24 day of ,i uary , 2006, by Gimiamo Mazz: o is has produced diver°s license (NC) a8 identifica ' �,in h' soiVirginia Beach City Center, LLC, a Virginia limited habili comp n beh V. Notary R CHARLES N My Commission Expires: „ g / 22 / 2007 0 CHARLES N. STEDMAN NOTARY PUBLIC ALAMANCE COUNTY, N.C. P.07 EXHIBIT A LEGAL DESCRIPTION ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon and the appurtertances thereunto belongingi lying, situate and being in the Bayside Borough of the City of Virginia Beach,; Virginia and bounded and described as, follows: BEGINNING at a pin where the westerly line of First Street meets the northerly line of Virginia Beach Boulevard, and.running thence along the northerly line of said Virginia Beach :Boulevard N W 03,' 30" W 150 feet to a pin;. thence..leaving the line of said Virginia Beach Boulevard and running; thence NO 245.74 feet to a ;pin; thence N 860 58' 17 W 186.33 feet to A point in the easterly line of Kellam Road; thence, along said line of Kellam Road N 14' 20" 05" W 44.27 feetto a point; thence leaving said line of Kellam Road and running thence S 86° 5817" E 351.02 feet to a. paint; thence S 04° 55' 03 W 233A2 feet.to a pin in the northerly.line of the Virginia Beach Boulevard, the point of beginning. IT BEING the same property conveyed to Girolamo Mazzurco and Margaret Mazzurco, husband and wife, by Deed from Longbranch Steakhouse & Saloon, Inc., a North Carolina corporation, dated November 6, 2002 and recorded in the Clerk's Office of the Circuit .Court of the City ,of Virginia Beach, Virginia as Instrument Number 200212103077315. 7 A4ap L-18 NI E:J G!; 2 i AG-2 G-21 AG-2 AG-1 Cup for Residential Kennel R AG-2 AG-2 U� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Belinda Kelton — Conditional Use Permit (residential kennel) MEETING DATE: March 28, 2006 ■ Background: An Ordinance upon Application of Belinda Kelton for a Conditional Use Permit for a residential kennel on property located at 1665 Nanneys Creek Road (GPIN 24103672690000). DISTRICT 7 — PRINCESS ANNE The applicant submitted an email to the Planning Department on March 13, requesting withdraw of this application. The applicant noted that she is selling her property and will be moving. ■ Considerations: The applicant was requesting a Conditional Use Permit for a Residential Kennel. The applicant is a hobby breeder of small dogs (Shiz tzu and Pomeranian). The application states that there are seven (7) adult female dogs at the site, thus necessitating the need for the Conditional Use Permit as four (4) adult dogs is the limit without a residential kennel permit. Animal Control responded to a complaint on October 25, 2005. The Defect Notice issued by Animal Control states that 10 adult dogs were on the site, including one pit bull. The application states that seven (7) adult dogs are permanently on the property. Staff recommended that the number of adult dogs permanently on site be limited to the seven (7) and that a one (1) year administrative review be performed from the date of approval in an effort to monitor any future complaints. There was opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 9-2 to deny this request. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Belinda Kelton Page 2 of 2 Location Map Recommended Action: Allow withdrawal of the application. Submitting Department/Agency: Planning Department City Manager: j (L . tyl't b V Stephen J. White From: Carolyn Smith Sent: Monday, March 13, 2006 3:54 PM To: Stephen J. White; Karen Lasley; Angela Stevens; Ed Weeden Subject: FW: Residential Kennel - Kelton -----Original Message ----- From: bkelton@cox.net [mailto:bkelton@cox.net] Sent: Monday, March 13, 2006 3:33 PM To: Carolyn Smith Subject: Residential Kennel - Kelton Please withdraw our request for a residential kennel at 1665 Nanneys Creek Rd, Virginia Beach, VA 23457. We have listed the house for sale and will be moving. Thank you for your assistance in this matter... please let me know that you received this email. Belinda Kelton bkelton@cox.net 757-615-3535 1 BELINDA KELTON Agenda Item # 24 February 8, 2006 Public Hearing Staff Planner: Carolyn A.K. Smith REQUEST: Conditional Use Permit for Residential Kennel. ADDRESS / DESCRIPTION: Property located at 1665 Nanney's Creek Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 241036726900000 7 - PRINCESS ANNE 1.098 acres The applicant requests a Conditional Use Permit to allow for a SUMMARY OF REQUEST Residential Kennel. Currently, the applicant is a hobby breeder of small dogs (Shiz tzu and Pomeranian). The application states that there are seven (7) adult female dogs at the site, thus necessitating the need for the Conditional Use Permit as four (4) adult dogs is the limit without a residential kennel permit. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Single family dwelling on a large agriculturally zoned lot. SURROUNDING LAND North: . Nanney's Creek Road, single family dwellings / AG-2 USE AND ZONING: Agricultural District South: . single family dwellings / AG-2 Agricultural District East: . single family dwellings / AG-2 Agricultural District West: . single family dwellings / AG-2 Agricultural District NATURAL RESOURCE AND This site is within the Southern Watersheds Management Area. There CULTURAL FEATURES: does not appear to be any significant environmental resources on the site. AICUZ: The site is in an AICUZ of less than 65 dB Ldn surrounding NAS Oceana. APPLICATION HISTORY: This item was deferred at the January 11, 2006 hearing as Staff failed to mail the applicant the postcard in time for her to post her sign at the right-of-way to meet the 30 day requirement. The Comprehensive Plan recognizes this area as being within COMPREHENSIVE PLAN the "Rural Area." The area is characterized as low, flat land with wide floodplains and altered drainage. The Comprehensive Plan recognizes this area as agricultural/rural with uses related to farming, forestry, rural residential, and other rurally compatible uses. Staff recommends approval of this EVALUATION AND RECOMMENDATION request with conditions recommended by staff. The recommended conditions are provided below. Animal Control responded to a complaint on October 25, 2005. The Defect Notice issued by Animal Control states that 10 adult dogs were on the site, including one pit bull. The application states that seven (7) adult dogs are permanently on the property. As such, Staff is recommending that the number of adult dogs permanently on site be limited to the seven (7) and that a one (1) year administrative review be performed from the date of approval in an effort to monitor any future complaints. The request for a Conditional Use Permit for a Residential Kennel is in keeping with the planning objectives outlined in Chapter 6 of the City's Comprehensive Plan. "Rural areas may be characterized as a balance between the natural environment and human uses with farms, horse boarding, campgrounds, wineries and open space activities" (page 164). Agriculturally zoned properties are idea for this type of use and, as the parcel is just over an acre in size, Staff believes that these reasons combined make this request reasonable to accommodate the seven (7) small breed dogs and the applicant's hobby breeding operation. CONDITIONS 1. No more than seven (7) adult small breed dogs shall be permanently on the property at one time. 2. Upon one (1) year from the date of approval, the Zoning Administrator shall administratively review the Conditional Use Permit. If at such time, the Zoning Administrator determines that the Residential Kennel needs additional consideration, based on complaints, etc., the Conditional User Permit will be referred back to the Planning Commission and City Council. In the event that no valid complaints have been made, the Conditional Use Permit shall remain in effect. 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. SITE PLAN ON UNE LOT 5 tZ STORY lass 3.9' INSET SCALE: t" co a . PARCEL A N 76'50'37" W 150,00' FRAME D�do 12V t' WOOD -FENCE LOT 1. 098 ACRES LOT 7 FRAME �i GARW za.� ras' wt m ZAPPROX Limm ✓- FLOOD ZONE-� Q Mi r z npROXA FLOOD ZOM R=3334. 31 ' L 150.13' 1789.1 W TO r OF CHARfff NECK RD. NANNEYS CREEK ROAD ('30' RfW) �F r � � s e F or <t I 7 J 1 � r �v � . c� 144 ZONING HISTORY Map L-IS 'iv Not t 03 N �3cj �f G-2 i AG-2 AG -I M R, M r__19 ap q i Q] Cup -for Residential Kennel u AG-2 AG-2 1 04/24//89 CHANGE OF ZONING (AG-1 to AG-2) Denied 07/09/91 CONDITIONAL USE PERMIT (single Granted family dwellings) Granted SUBDIVISION VARIANCE 2 07/10/89 CONDITIONAL USE PERMIT (duplex) Granted 3 06/09/92 CONDITIONAL USE PERMIT (single Granted amily dwellings) 4 10/19/87 1 SUBDIVISION VARIANCE Granted DISCLOSURE STATEMENT - DISCLOSURE STATEMENT APPLICANT C SCLOSURE If the applicant is a corporation, partnership, firm. business, or other unincorporated organization, complete the followirxl 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below. (Attach fist if rmK;a- ary) A- 2. List all businesses that have a parent -subsidiary' or affiliatedbusiness enff? relationship with the applicart (After fist if necessary) t(k Check here if the applicant is NOT a corporation, partnership, firm, business. or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only iff property owner is ditferent firzm applicant If the property owner is a -corporation, partnership, firm, business,. or other unincorporated organization, complete the fblky ing 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below. (Attach fist if necessary) 2. List all businesses that have a parent -subsidiary' or affiliated business entityZ relationship with the applicant (Attach fist if necessary) Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. See ne7Q page'. for footnotes -cdA011i" We P=* AVVkWon PW9of10 POWNd.9Mr2W4 B O O A O Como) DISCLOSURE STATEMENT DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide service with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services and legal services: (Attach list if necessary) ' 'Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation.' See State and Local Govemment Conflict of Interests Act, Va. Code § 2.2-3101. 2 "Affiliated business entity relationship" means `a relationship, other than parent :subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (i) a controlling owner in one entity is also a controlling owner in the other entity, or (i i) there is shared management or control between the business entities. Factors that should be considered in detemrining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationshipp between the entities.' See State and Local Government Conflict of Interests Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. 1 understand that, upon receipt of notification (postcard) that the application has been scheduled for pubic hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. -- Appfkaftrs sgnah,re Print Name Property Owner's SWedure (if dilrerent tfmnapplicant) Print Name Condom use Pem* Appkation Page 10 of to mesa aroma} BE Item #24 Belinda Kelton Conditional Use Permit 1665 Nanneys Creek Road District 7 Princess Anne February 8, 2006 REGULAR Barry Knight: Mr. Secretary. Joseph Strange: The next item is Item #24, an Ordinance upon Application of Belinda Kelton for a Conditional Use Permit for a residential kennel on property located at 1665 Nanneys Creek Road, District 7, Princess Anne. Barry Knight: Thank you. Welcome ma'am. State your name please? Belinda Kelton: I'm Belinda Kelton. Barry Knight: Okay. Belinda Kelton: Of course, I live at 1665 Nanneys Creek Road. I'd like to state to begin with that I specifically moved to that property for the purpose of moving to the City of Virginia Beach, which I love. I chose agricultural zoning so that I could have all of my pets with me there. I have seven permanent dogs. They range in size from four pounds to fourteen pounds. I do breed my pets. They are Pomeranians and Shiztzu. They are little dogs. After reading some of the letters that have been provided to you from some of my neighbors, I can understand why you might have some concerns. However, some of the statements are simply untrue. Some are exaggerations and some were true but are no longer true. The main issue, I think from my neighbors is the barking. Our fenced areas are not adjacent to any neighborhood yard. They are centered in my yard. I don't think the number of dogs having seven little dogs is necessarily relevant to the amount of barking because one of neighbors behind us actually has two dogs that are large dogs and they bark loudly and often. I think the issue is that we all need to control our dogs regardless of their size or quantity. I have to that affect, purchased items called "Bark Solvers." They are ultra sonic and they are activated by the barking. It helps to reduce that issue. The other thing that I do is that I make sure they are just not outside too often or for very long. I really just try to be considerate of my neighbors. It was raised in discussion today, that seven dogs who have puppies, then turn into more dogs. I just want to point out that the puppies are about that big, and they are indoors all the time. They are placed and adopted out during their first eight weeks and I have never had one that was never placed. They are all pedigree dogs so they are well taken care of and well placed. It was mentioned that there was a deed restriction in that area, which is amazing considering we are out in the Pungo Back Bay area. I was not aware until Friday night Item #24 Belinda Kelton Page 2 that there were deed restrictions on the property. I know that is not an issue that actually the city deals with but I wanted to go ahead and address it since it was brought up. Neither the seller nor any of the neighbors ever brought to my attention that there were deed restrictions. I believe that the neighbors had a duty of vigilance to bring that to my attention prior to our establishment. We've had those dogs out there for almost a year now. One of the other things mentioned is a pit bull. I do not have a pit bull. I do have a larger dog that is in the house. She is a mixed Staffordshirer Terrier mixed. And, she is a temporary resident. My son was recruited to play goalie for ODU hockey so he is with me temporary while he is relocating into an apartment now. There was mention of that dog being loose. The dog is not loose. And, we will be more than happy to lead her when we walk her to the front yard and let her do her business and come back into the house. But she a moot point because she not a permanent resident of our home. The other large dog that was mentioned in one of the letters could be referring to my other son. He is a Virginia Beach Police Officer and he does not live with me. He has not had the dog with me for several months. Again, it was a transition issue where he stayed with us while he was at the academy. He has moved on to his own apartment. The issue before us is a question of appropriate land use. And, I deliberately moved to agricultural zoning and I would like to know where I could live, with my pets, in the City of Virginia Beach, if it is not in this agricultural area. If I do and am forced to move, it will create a six -figure loss to me. And even more importantly, I feel like I'm a member of that community. I'm active in the Charity Neck Church there just up the road. And, just don't want to run into that situation. I want to be considerate of my neighbors and I want to be treated fairly. And last, that many residential kennels have been approved throughout the city on much smaller lots. So I don't see why we can't move forward in this matter on a larger lot in agricultural zoning. Thank you. Barry Knight: Are there any questions for Ms. Kelton? Mr. Livas? Henry Livas: It states that the animal control found a pit bull on the site? Was that incorrect? Belinda Kelton: That is in correct. It is not a pit bull. But I do have a dog that is my son's dog. Like I said, she is there temporarily as a resident. She does not run loose. She is a mix of a Staffordshire Terrier, which is a less muscular dog, she is not full grown. Henry Livas: Counting the temporary dogs, what would you say would be the average number that would be there? Belinda Kelton: I have seven dogs now plus three that I co-own. I have seven permitted. I have three that I co-own. I have one for sale. So there would be seven dogs. The three that I co-own go back to the other owners. I just keep them when they're having puppies. Barry Knight: Are there any other questions? Mr. Crabtree. Item #24 Belinda Kelton Page 3 Eugene Crabtree: Do you breed these dogs to sell the puppies. You said "adopt out." Do you adopt out or do you sell them? Belinda Kelton: They're adopted but they're sold. Eugene Crabtree: You are using this as a commercial venture to some extent. Belinda Kelton: It's a hobby. It is not something that is profitable. It's a win -win situation for me where, I get to have a number of pets, and they support themselves. It's a break-even sort of situation. And, it really provides a nice value to the other families that enjoy having a companion. They are companion animals, small dogs. And as we've all heard in a lot of the health magazines and articles that having a companion pet improves our life and longevity as well. Eugene Crabtree: I understand all that. I just want to clarify that you do breed these for sale. Belinda Kelton: Yes, I do. Barry Knight: Any other questions? Ms. Wood. Dorothy Wood: I just noticed one thing that you said. You said that the neighbors should have told you about deed restriction? Belinda Kelton: I didn't know about them. They were not disclosed by the seller. I did talk to someone about those my attorney's office. They have a duty of vigilance. If they know something that I don't they should have said something to begin with. Dorothy Wood: But not the neighbors. Belinda Kelton: The neighbors or the seller. Anybody that would have a concern about it should have let me known about that they're was a concern before I got established and Friday night was the first time I've heard of there. Dorothy Wood: Thank you. Barry Knight: Ms. Katsias. Kathy Katsias: It's buyer beware and I think it's your responsibility. If there were deed restrictions you were to review them or have your attorney to review them. Belinda Kelton: And certainly out in an agricultural zoning, one would not think. But I did tell the seller face to fact exactly what we were doing as well as one of our neighbors before we ever moved in. It was just something that we didn't know. Item #24 Belinda Kelton Page 4 Kathy Katsias: Would you consider reducing the number of animals from seven to five or four? Belinda Kelton: I would be willing to compromise in any way that is reasonable. I don't know where else in the city you can do this if it is not in agricultural zoning. I love these dogs. They're terrific. I'm willing to be as considerate as I possibly can to my neighbors. I want them to be reasonable as well. Kathy Katsias: How much time do they spend outside? Belinda Kelton: They spend about 30 — 45 minutes in the morning. They spend time in the afternoon when my daughter gets home about 30 — 45 minutes, and then in the evening again for about 30-45 minutes. Kathy Katsias: That's it? Just three time a day, an hour and a half? Belinda Kelton: Yeah. One in a half to two hours. Kathy Katsias: Thank you. Barry Knight: Mr. Crabtree. Eugene Crabtree: You said that you had barking attenuation devices that you were putting on the dogs. Belinda Kelton: They are not on the dogs. They're called "Bark Solvers," and it's an ultra sonic device that when they bark it lets out a noise that the dogs would hear. Eugene Crabtree: There are attenuation devices that can be attached to collars of dogs as well. If the neighbors continue to complain would you be willing to look into it? Belinda Kelton: As long as it is safe for the dogs. I don't have any problem. Absolutely. Barry Knight: Are there any other questions for Ms. Kelton? Ms. Kelton, I would like to address something I believe and I believe Mr. Scott can help me on this. When you say agricultural zoned land, we have provisions down there for what we call alternative residential uses. The law, today says that by right you can put a house on 15 acres. If they have stiff soils, you can come to Council and ask their permission for one house to ten acres or if it is sandy soil, one house per five acres. I believe that your community, which was before these exact regulations I just specified, they are very compatible regulations. It is an alternative residential use even though it is an agricultural zoned land but it still has a little caveat attached to it that it is a residential use in there, so it is not strictly agricultural but it is maybe a quasi agriculture which is a residential use. It isn't just a total agriculture. Mr. Scott, could you expand on that? Item #24 Belinda Kelton Page 5 Robert Scott: Well, Virginia Beach doesn't really have any strict agricultural. No matter where you are in an agricultural area you can build a house. If you go out to some areas in the Midwest, they have agricultural zoning that doesn't even allow houses. Mr. Knight's observation is right. Legitimately, this is agricultural zoned property. It's AG-1 or AG-2, just like all the other AG-1 s and AG-2s. It is a little bit denser because of the regulations that happen to be place at the moment that this neighborhood was created then some of the areas elsewhere in Pungo and Blackwater area. This predates the 1 to 5 and 1 to 15 and so forth that Mr. Knight is referring too. So, I think these are all one -acre lots. Is that right? To the extent that you have so many one acre lots that close that is a little unusual in this area. It's perfect in keeping with the rules that apply when this was developed, so I guess it all depends on how you use the words. Barry Knight: Okay. Thank you Ms. Kelton. Mr. Strange? Joseph Strange: Speaking in opposition we have Elizabeth Harris. Barry Knight: Welcome ma'am. Please state your name? Elizabeth Harris: Thank you very much. My name is Elizabeth Harris. I live directly across the street from 1665 Nanneys Creek. My address is 1668 Nanneys Creek Road. There are a number of us who would like to speak to you this afternoon. So, I will just highlight some points. I think a number of other residents would like to expand on some of the things we're going to talk about. I do want to let you know that we do have a petition that has been signed by 41 adults, who live in direct proximity to this address. Barry Knight: You can give it to Mr. Livas over on your right. Elizabeth Harris: My right? As I said, it is a petition that has 41 signatures and these are adults who live in direct proximity to this particular address. We all indicate our opposition to the approval of this Conditional Use Permit. Ms. Kelton is correct. She did move into our neighborhood a little less than a year ago. And just about immediately upon her arrival the barking commenced. It really hasn't gotten significantly better. I live across the street and it's not unusual for me to leave the house at 5:30 in the morning and the dogs are barking at 5:30. And that could go on for the whole course of the day. Some of us commented we're not sure that she and I really live in the same neighborhood because our experience has been very different. One of the neighbors that is going to come to talk to you today lives at 1660 Nanneys Creek Road. Their bedroom is directly adjacent to this property line. These folks can't sleep in their master bedroom because of these barking dogs. I don't think that is reasonable for folks to have to have that experience. The rest of us have not been able to enjoy our pools or our porches or open our windows because of the barking. You can't sit on the neighbor's porch and talk about your day without having the uninvited guests of the barking dog. Animal control has been out three times since August and that really does concern me. They have been called for barking and they have also been called because of this pit bull or whatever it is Item #24 Belinda Kelton Page 6 has been loose. A number of the neighbors have had the experience of this dog coming across the property line into adjacent neighborhoods. I'm very sorry. I'm very nervous talking in front of you all. I apologize for that. It is a little intimidating. One of the neighbors is going to talk to you. He's had the experience of the dog actually charging him on his property line and making his teenager feel fearful. That really is not a reasonable thing. Animal control has been out several times. We feel like Ms. Kelton is in violation of City Code. It does specify very clear locations where these kennels can be. She's got accessibly to many dogs out there. There does seem to be some minimal improvement on this in the last 30 days. I think my concern is because she wants a variance from you all but my concern is once the weather gets nice, this is going to continue again. We were seriously hoping that you all would not approve her request for her variance. I appreciate your time. Thank you. Barry Knight: Thank you Ms. Harris. Are there any questions for Ms. Harris? Ms. Harris, could you come back please. Elizabeth Harris: I'm sorry. I was trying to escape. Yes sir. Jay Bernas: I have just a quick question. So you're across the street. Can you hear when her dogs are in her house? Can you hear her dogs barking when you're in your house? Elizabeth Harris: No sir. I can't only if we're out in the yard. Jay Bernas: You can hear them while they're inside the house barking or you can hear them outside? Elizabeth Harris: There not really in the house to my understanding. They appear to be confined to two garages, one detached and one attached. To be honest with you, I really have to be up close to the road for that to occur. Now, the people who are directly adjacent to her, they have entirely different experiences. That is one of our primary concerns is people who live right next door to her. They can't sleep in her bedrooms and they can't sleep on their back decks. That is not reasonable. Jay Bernas: Thank you. Elizabeth Harris: Yes sir. Barry Knight: Are there any other questions? Thank you Ms. Harris. Elizabeth Harris: Thank you. Barry Knight: Mr. Strange. Joseph Strange: The next person speaking in opposition is Carolyn Engel. Item #24 Belinda Kelton Page 7 Barry Knight: Welcome ma'am. Please state your name? Carolyn Engel: My name is Carolyn Engel and I live at 1673 Nanneys Creek Road, two doors down from Ms. Kelton's home. Mrs. Harris has already addressed the barking issue and I would like to reiterate that at least in the warmer months from the time that she moved in until late fall when the weather began to turn cold, the dogs had access to the fenced in area which you saw in the slide for hours and hours at a time. Sometimes the barking is intermittent but many times it was constant non stop for several hours at a time. It was mine understanding that there is a city ordinance Number 23 that requires that a kennel be located at least 100 feet away from an adjacent property. The dogs are now housed in a facility that is 19 feet from the Donnelly's property line with the Kelton's. When they are inside of the free standing garage and you're out in your yard you can still hear them from my yard, which I said is two doors down, barking and carrying on. During the warmer months the dogs are given free access from the area where they are kenneled to the fenced in area. Again, unless someone goes out and tries to quiet them or brings them inside, the barking continues, and if no one is home then the dogs have unlimited access to do whatever. And as Ms. Harris has already pointed out there have been three calls to animal control for noise complaints. The second point that I have is that if the application is approved by this Commission then subsequently by City Council, what impact are those dogs going to have on the Donnelly's property value? If they in the future, go to sell their home and you have a perspective buyer who soon realizes that there is a kennel next door, there are seven adult dogs and whatever number of puppies, how is this going to impact someone who is thinking about buying it? I would think they would not particularly care to be in the master bedroom on that side of the property and not be able to open their windows at night. We just feel that this application, whether it is for Ms. Kelton or any of us on one acre piece of land, is not appropriate. It is noisy and we don't feel that it is a good land use. It is extremely bothersome to the neighbors as you can see by the application. Thank you. Barry Knight: Thank you. Are there any questions for Ms. Engel? Thank you ma'am. Joseph Strange: The next speaker in opposition is Tim Eldredge. Tim Eldredge: I apologize for my attire. I wasn't planning on speaking today. My name is Tim Eldredge. I live at 1661 Nanneys Creek Road. I'm opposed to this variance being granted. I live next to her. I'm the one who has called animal control three times for the noise. Ms. Kelton's non -vicious dog chased my daughter and I in the house on three different occasions. If that is not the definition of a vicious dog then I don't what is. Her, so-called, "quiet ultra sonic device" is not quiet. You can hear this loud piercing noise sitting by the pool. I live where the pool is right there. Like Ms. Harris, I'm a bit nervous up here but such distinguished people have that cause to do that to you. I teach eighth grade and one of the things that I take every place with me is papers to grade. I've been a teacher for 30 years in Virginia Beach but grading papers on my back deck is a thing of the past for me. In my house, I hear their dogs barking all the time. Ms. Kelton said that Item #24 Belinda Kelton Page 8 she didn't come to talk to any of us before she moved in. We knew something was up when all the dog fences went up before the moving van pulled into the driveway. But she has not made any contact with us telling us what she is planning on doing and how she can mitigate some of our concerns. It's obnoxious. By the definition of the term "residential" that applies, this is a neighborhood of families who have a place to come when their day is done and they can relax and unwind and recharge the batteries. With the dogs in this neighborhood we can't do that. If I moved into your neighborhood and decided to set up a Harley Davidson repair shop in my garage or a jet engine repair facility in my garage, right next to your bedroom, it's the same type of thing. There is no peace and quiet. She says that the dogs are out for an hour and half a day. That is not true because I hear them all the time. You can't have your windows open without hearing the dogs. You can't eat dinner. You can't read the Sunday paper without hearing the dogs. It's not acceptable. You're trying to use the needs of a single person to out weigh the concerns of many. Health concerns for people who live on the other side of her, just general concerns about common decency. I brought my daughter here. She's getting her civic lesson today so we would just like to be able to live in our neighborhood and enjoy the peace and quiet. Thank you very much. Barry Knight: Are there any questions for Mr. Eldredge? Ms. Wood. Dorothy Wood: Do you go to school with eighth graders for peace and quiet? Tim Eldredge: That's part of the residential requirement when you come home. You have your little security and you have your venue and you can come in and unwind and relax. It's one of those places that I call my sanctuary, my home. The pictures don't tell you about the sounds involved. You get nice cute little puppies and you see all of those things but you hear no sounds from any of those pictures. I hear them everyday. Dorothy Wood: But you did tell us that the puppies were inside most of the time but inside as in an out building rather than in her house? Tim Eldredge: Yes ma'am. Dorothy Wood: It is probably not well insulated. Tim Eldredge: I have no idea what the construction of it is but I know when they're inside I can still hear them when I'm sitting on my deck or my kitchen. I can still hear them. Barry Knight: Are there any other questions? Ron. Ronald Ripley: Is there any number of dogs between the minimum of four which doesn't require a Conditional Use Permit to the seven that she's requesting that is reasonable in your mind? Item #24 Belinda Kelton Page 9 Tim Eldredge: The only reasonable solution for me would be to police your dogs and the noise that they generate. I don't care if you have 15 dogs. If you keep them quiet and you don't bother the people that live next to you, I couldn't care. Her ultra sonic thing doesn't keep them quiet. It is like a chorus. When one of them go off, they all go off. It says seven small adult dogs but they have and I wish I had brought a tape in here of this thing. It's kind like an eighth grade classroom. They feed on one another. Barry Knight: Mr. Berms. Jay Bernas: Just to follow up on Commissioner Ripley's comment, if the applicant was to build a separate structure that was well insulated and sound proofed to a certain extent would you be amenable to something like that or you really don't see any really compromise? Tim Eldredge: Once again, the only thing that I would stress is the common decency. If you're dogs are noisy and if my dog was noisy, I would be immediately in my yard telling her to be quiet. If they can come up with a structure that contains the noise, then so be it. Barry Knight: Any other questions for Mr. Eldredge. Thank you sir. Tim Eldredge: Thank you. Joseph Strange: The next speaker is James Donnelly. Barry Knight: Welcome sir. Please state your name? James Donnolly: My name is James Donnelly. I live at 1669 Nanneys Creek Road, next door to the applicant Belinda Kelton. You have heard previous speakers talk about the noise of the dogs that are kenneled next door to us. It goes without saying that we have it the worse. Unless you live next door to the dogs you really have no idea what it is like. To get the peace and quiet of Pungo, that stopped when the dogs arrived in early 2005. My bedroom window is on the first floor. It is approximately 23 feet from the property line that borders the Keltons. Part of the area that the dogs are housed is 18 feet from our property line. This means that the dogs that bark day and night continually disturb our sleep. It has been suggested the variance be given a year's trial but we have had our year's trial and it doesn't work. We also have a petition that has 40 neighbors who are against this variance. But what I would like to talk about is a simple, uncomplicated fact that there is a neighborhood deed restriction that supercedes any city ordinance or variance. I have sent each you a copy of this. I also have checked with the City Attorney's Office and Ms. Kay Wilson, and she agrees that the deed restriction does take preference over the City ordinance. It must, however, be brought separately to a court to be enforced because the city does not enforce a deed restriction. Neighbors are prepared to prosecute in civil court. The point that I am making is this. If this variance were to pass and if the Mayor and City Council were to approve it, it would still be illegal Item #24 Belinda Kelton Page 10 because of the deed restriction. I should mention here that the deed restrictions only allow two dogs if they are not in nuisance to the adjoining property owners. Not four dogs as the city's ordinance allows and certainly not seven dogs as the variance calls for. I am asking the Planning Commission to give serious consideration to the denying this variance because it is illegal, time consuming for all concerned. It is clearly stated in our deed restrictions that only two dogs are allowed on the property provided they're not a nuisance. I'd like to mention, that I had asked the case worker, to notify Belinda Kelton about this restriction when I found out. When I found out something like two weeks ago and I had to search our deed and it says all conditions and restrictions apply. I looked through it. I didn't see any. I kept hearing that there are restrictions. So finally, Marvin Rollins called me and says, "Yes, there are restrictions." I said how do I get proof of this? He says go to the deed bureau. So I went to the deed bureau and in five minutes I had copies printing out. It was that simple. In fact, I would suggest in the future on something like this that before you give the okay to start the process check with the deed bureau. They can tell you if there is a restriction or not, all this work for everybody. I thank you. Barry Knight: Are there any questions for Mr. Donnelly? Thank you sir. James Donnelly: Thank you. Joseph Strange: The last speaker signed up is Scott Donnelly. Barry Knight: Welcome sir. Please state your name? Scott Donnelly: Scott Donnelly. I'm Jim Donnelly's son. Thank you. I live at 1669 Nanneys Creek Road. I don't want to reiterate what everybody has just said, pretty much more the same. The picture here is also misleading. There is a large structure that these dogs are in which are close to the property line. We saw the things in the pamphlet. Some of it is old. You've just seen a picture of the dogs. You're not seeing how it impacts everyone. I work for an airline. My hours are all different. I'll come home late at night. The windows can't be opened. They can't be opened in the morning when the weather is warm. Dogs. It's excessive. And like someone mentioned earlier, they feed on each other and it just goes on and on. Thank you. Please give time and thought to this. It's a quiet peaceful neighborhood. We want to keep it that way. We have nothing against Ms. Kelton. We don't really know her. This was imposed on us. We didn't realize we had options and now we're trying to exercise those options before it becomes permanent. It's like having a puppy mill living next door right now. Thank you. Barry Knight: Are there any questions for Mr. Donnelly? Thank your sir. Scott Donnelly: Thank you. Item #24 Belinda Kelton Page 11 Barry Knight: Ms. Kelton, if you would like to come back up? You will have a couple of minutes to rebut. Welcome ma'am. Please restate your name? Belinda Kelton: Belinda Kelton. Barry Knight: If you have anything you would like to rebut on what they said, you're more than welcome to it. Belinda Kelton: Of course, as a responsible breeder of champion pedigree dogs, I strongly object to being referred as a puppy mill. I am definitely not a puppy mill. As a responsible breeder, I find that offensive. The question before us is the land use. There are other kennels in the city that have been approved on much smaller lots. My dogs are not out there at 5:30 am. I'm not even up at 5:30 am. They do go out at 7:30 am. I have been limiting much more than in the summer. I didn't realize what an issue it was for the neighbors in the summer. I've been much more conscience about limiting the access to the dogs outside. They are also never outside when someone is not home. They are never left in the yard. I do have climate controlled garages, heated and air conditioned where the dogs spend their time. The puppies are in the house in my kitchen. They are not in the garages. The latest that they are out are at 9:15. Again, the reference to my son's dog, who is not going to be staying with us, who I am more than willing to put on a leash when we walk him into the yard. The other does have a landscape business out of their house. We don't have any complaints that we have made about the trucks in and out. I think we all need to be considerate of one another. I'm willing to do that. My dogs are not the only ones that bark. They do bark when the neighbor's dogs behind us bark. Of course they do. I go out and I bring them in. If my neighbors didn't know about the deed restrictions, that is very interesting, how would I have? Are there any other questions? Barry Knight: Are there any questions for Ms. Kelton? Jay. Jay Bernas: Can you show on that picture that primary location that the dogs are housed? Barry Knight: There is a laser right there. You can just pull it off the Velcro and push the button and point it there. Belinda Kelton: I'm shaking a bit. There are some in there. There are four that are inside the detached garage and they are in the back left hand corner if you're facing it. They're actually in a secured area in the back left hand corner of the detached garage. There are some in the attached garage. Again, you can see where the fence line is. They're in the back corner of that as well in a secured area. Barry Knight: Mr. Strange. Joseph Strange: How wide are those lots? They look like they're long and narrow there. Item #24 Belinda Kelton Page 12 Belinda Kelton: One hundred fifty feet wide. Joseph Strange: One fifty feet. Belinda Kelton: You can see where the garage. The fence runs from the back of the frame garage, basically down to the bump out on the kitchen window, right in the center of the yard. Barry Knight: Mr. Henley. Al Henley: Ms. Kelton. Hi. Has any of your neighbors called you or conversed with you? Belinda Kelton: Mr. Eldredge has. He is the only one that has before this whole thing got started. He did bring to our attention and we've tried to really be conscience of that, and I appreciate him letting us know that he had a concern that he is a school -teacher, and he is up early. That is why we started making sure that our dogs were in earlier at night. None of the other neighbors have spoken to us about it until this. Al Henley: Thank you. Barry Knight: Are there any other questions for Ms. Kelton? Ms. Wood. Dorothy Wood: Would you describe the inside of the garage? Is it like insulated with drywall or a finished garage? Belinda Kelton: It is only partially finished. I have no problem with completing the inside of the garage. Dorothy Wood: I mean, is there insulation there now? Belinda Kelton: There is some insulation. Dorothy Wood: But not completely. Thank you. Barry Knight: Ms. Katsias. Kathy Katsias: You said that you kept dogs in the kitchen. Belinda Kelton: Puppies and mom are in the house. Kathy Katsias: The puppies and mom in the kitchen and the other ones? Belinda Kelton: Are in the climate controlled garages. Item #24 Belinda Kelton Page 13 Kathy Katsias: How many puppies and moms? Belinda Kelton: It all depends. They might be in the first pen and they are going to have their puppies and they come in the house. They stay there until the puppies are weaned and placed. Then they can play out in the yard again. Kathy Katsias: Thirty-five minutes. Belinda Kelton: Yes. Absolutely. Dorothy Wood: So they really aren't pets are they if they're outside in the garage? Belinda Kelton: Yes they are. Dorothy Wood: I think of a pet that is something that is in the living room with you and you're petting. Belinda Kelton: They do. I didn't want to get into all it but they do get rotated in and out of the house. But you can't realistically have seven adult dogs in the house. We give them a nice home in the climate controlled areas, and we do play with them morning, noon and night. They are pets. Dorothy Wood: Thank you. Belinda Kelton: Some of them have been with me for seven years. They are definitely my pets. Barry Knight: Are there any other questions? Thank you Ms. Kelton. Belinda Kelton: Thank you. Barry Knight: I'll open it up for discussion. Eugene Crabtree: I've got one question. Someone referred to that the distance that they kennel has to be from other structures in the City of Virginia Beach, the setback requirement for anyone who has a kennel has to be so many feet away? Do you know what it is? Robert Scott: Karen can look it up. Stephen White: The Conditional Use Permit provisions for a kennel is 100 feet. Eugene Crabtree: And there isn't 100 feet between these kennels and the homes on either side right? Item #24 Belinda Kelton Page 14 Stephen White: We're checking because I believe that applies to a commercial kennel, if you can just bear with us for a second? Eugene Crabtree: Wouldn't this be a commercial kennel if this passed? Stephen White: That is just a commercial kennel. That is a separate category from a residential kennel. Eugene Crabtree: You keep breeding these dogs for sale. Stephen White: The Zoning Administrator has classified this as more of home occupational kind of thing. It's a residential kennel. She doesn't see it as being commercial. Can you give us a second? Barry Knight: Ms. Katsias. Kathy Katsias: I missed Mr. Crabtree's question but if she is breeding these dogs for sale, does she need a business license? Barry Knight: According to what they said the Zoning Administrator said no. Kathy Katsias: Okay. Thank you. Barry Knight: Any other discussion while they're looking this up? Mr. Henley. Al Henley: Thank you. It's quite interesting especially with the responses that I've been receiving from the neighbors in the neighborhood regarding this application. First of all, I would like to comment that it is truly the responsibility of the property owner before he or she moves into any neighborhood to check what the deed restrictions if there are any. Obviously, in Ms. Kelton's statement today she did not do that. I think if she had done that she would have found that this particular neighborhood only allowed two dogs. She indicated also that these animals, the dogs themselves were kept in either the house or into an adjoining building, the garage and so forth, and they were only allowed out at a certain time of the day, a certain period during the time of the day. I'm a great animal lover myself. I have a dog of my own. I always have and always will but there comes a great responsibility when you have animals particularly more than one, and with the seven that we have here, they enjoy outside weather just like the human animal. And to say that you're going to keep them confined to a space regardless of what size those dogs are, they enjoy the outside as well. And, if I were her I would want to let those dogs out. I feel very confident she's going to let those dogs out because it is human nature to allow your animals to enjoy the weather just like you enjoy the weather. She also indicated that is not a profitable venture. With that in mind, she does not depend on this income to support her livelihood for the household. She really stated it was a hobby of hers. So, Item #24 Belinda Kelton Page 15 with everything that has been said today and heard, I can't support this application today and I will be voting against this. Barry Knight: Mr. White. Dr. White, have we found anything yet? Stephen White: We have an answer for you now. Barry Knight: Okay. Stephen White: Section 233 and this is in the section, which has requirements dealing with Use Permits. It says, "except where animals are kept in sound proof air condition buildings, no structure or area occupied by such animals whether an animal hospital, pounds, shelters, commercial or residential kennels, shall be within 100 feet of the property line of any adjacent lot." That applies to residential or commercial kennels. Barry Knight: Thank you. Is there any other discussion? Mr. Bernas? Jay Bernas: I would like to say I'm sympathetic to both sides. I used to live in an Accident Potential Zone so I'm familiar with the jet noise. I was fine with the jet noise but having a dog bark all night really does disrupt your quality of life. But I'm also, and it's hard for us as a Commission to see neighbors fight, and want to go to court to solve these things. What I'm looking for is a compromise that will satisfy both sides, and create a win -win situation for both sides. It sounds like if noise is a problem, as a condition of the Conditional Use Permit, require her to build a sound proof structure to house the animals, and to restrict the time that they are outside. If some of those things could not be met to attenuate that, then I would not be in support of this Conditional Use Permit. What I'm trying to do is I'm trying to look at both sides and look what the issue is at hand. If it is noise, they are in a garage that may or may not be finished, so obviously sound is going to get through that but it sounds like if you can attenuate the noise and make it sound like they're not there, limit the time that they're outside, maybe there might be some compromise that people would be agreeable with but I just wanted to say that I'm sympathetic with both sides. Barry Knight: Thank you Mr. Bemas. Is there any other discussion? Mr. Crabtree. Eugene Crabtree: I'm inclined to agree with Mr. Bernas that if she would bring her structures into compliance with the code that Dr. White just read, then I would be more willing to go along with her having her kennel if this was done and it was a condition that it had to be done that it would eliminate the noise. I understand the noise. I had a neighbor with three dogs and it drove me crazy. So, I understand the neighbor's problems totally. I never called anybody but I didn't complain. So, I'm sympathetic to both sides too because I own dogs. I have always owned dogs and will as long as I live. I would like to see the noise be attenuated or her structures to come in line with the code as Dr. White read. Item #24 Belinda Kelton Page 16 Barry Knight: Thank you Mr. Crabtree: Ms. Wood. Dorothy Wood: I'm also sympathetic with both sides but I think the neighbors should enjoy peace and quiet in their home, and the deed does say two dogs. So saying that, I would like to make a motion that we deny the application. Joseph Strange: I'll second the motion. Barry Knight: There has been a motion to deny by Dot Wood and a second by Joe Strange. We'll open it back up for discussion. No discussion. Let's call for the question. AYE 9 NAY 2 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE NAY HENLEY AYE KATSIAS AYE KNIGHT AYE LIVAS NAY RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE Ed Weeden: By a vote of 9-2, the application of Belinda Kelton has been denied. Barry Knight: Thank you. Is there any more business Mr. Secretary? No more business, we call the meeting adjourned. Thank you. Petition to the Virginia Beach Planning Commision To be presented at the 8 Feburary meeti ng of the Planning Commision We, the undersigned, strongly oppose the granting of a Conditional Use Permit for a Residential Dog Kennel on property located at 1665 Nanneys Creek Road, Virginia Beach (GPIN 24103672690000). Name ni Lt �\/• Address Phone Date Signature �L k� -Iz-t -Z Z 3 Name 41)i �S � j ON Address r Ve Cj Phone Date Signature l,,1'1,1,�✓ 5` Name J L �� 2 a l v r k 4 �� �� l Address C, Phone Date Signature Cc.-- clZ�>>374 J Name JAVy'�' l ri Address (( Phone Date Signature �vlc.c-e f �.� • �� �c`-i 1 �(� Name " �, �.� to C� r- LS hn S 1C ► Address ,� i 6a3 lit fire -I s Cv(ry Pj Phone Date Signature /w-�- ��(� j tC�� VA Z3`45� �Z1 " 5ci g�0� Name , (� � ,� 1C. ;L � � � •_.�` Z t � Address 1 13ic.� C•' �1 1 � i,�'S C/1 C C, f � Phone Date Signature`) A,o l� l.— . CSa L ? �� �i i l -iC 1, �`, �� 3 ,i Name r, „'Address &��'� Phone Date Signature .. �o ! C, - i, ,�G ! S�C /- r✓� /�f�'15�i �! Z,3S-7 �Z/ 74�� ��-��v� Name` ;jrYt - Address Phone Date Signature < j �/ A 42to,-Z 1 j l �S U41 Name,,L J �; �2 J Address Phone Date r Signature vil ! ell Jame vim, vlr o /1Cl, , r Address Phone Date Signature �:�- / �/i- t/� • / �14 Z� L/ Petition to the Virginia Beach Planning Commision To be presented at the 8 Feburary meeting of the Planning Commision We, the undersigned, strongly oppose the granting of a Conditional Use Permit for a Residential Dog Kennel on property located at 1665 Nanneys Creek Road, Virginia Beach (GPIN 24103672690000). Phone Date Name �� k� Address �S �� i�ir�� �;rl� l,►ti �;7 13; Signature Name n ` ��(� 5 Address Phone Date �� r11� `1Cc� 5e Three Pi'n� Long 4!5 - ►3 :Tan (' C�Q,? l3�� ch %I � �� Zi�Zv Signatures ti V, r J► n( a 345�- Name �"�i'1!'f.3 ,� jc�s Address Phone Date Signature �3Y�� Name /�C'FCz / �f,tj� �i�2i ��1 Address 14„� /�,�Q/Int' S �rlr'� ` Phone Date SignatureG�(,f>r 4`!r ,lilez %3t`aeA ✓r� 73�� I-03((t f Name � S _ �. J e 5 b . / Address Pl L Phone Date o Signat '-I6 /f J `56 . "'""" 111 VYJl Name Phone �57 Date Address L�5 21 TAU—*— Signature / /� :_, AA V�` ice? f'crx1 1� • 2S Name ---- Signature dress Phone Date / f� Ili Z .TAT -7 Y-011C 7 7Y Address Phone Date Name ei � o ox' Signature---, ;IDAA4 1011 U Phone L Date Name � �-.(� � ,.5 j'1'�( Address � ��j ���,� Ir�� ��'L- 3d��' ib3h Signatureuc- .dameAddress u S 7 -��� �/ �il't C GV Phone Date _1 , Petition to the Virginia Beach Planning Commision To be presented at the 8 Feburary meeting of the Planning Commision We, the undersigned, strongly oppose the granting of a Conditional Use Permit for a Residential Dog Kennel on property located at 1665 Nanneys Creek Road, Virginia Beach (GPIN 24103672690000). Name `,__ F z _ .,Sk , Address �-3 �. N�,� r ��xdf�» Phone Date Signature :^Lf �....._.- ,� Name JA r--s W-O` Address I C 76 A),'.-vXeY &,OeJL K&A Phone Date � 14 4U- +331 i,-15-Ob Signature .23yS7 Name Address / b "7 10 /Jan n eV s Phone Date G, LkC-I (� o Signatur Cveck KOct�( Vo' 8cf' l O A -13y 5-7 4a6 -f333 f_IS- o ff, Name (� : Address ( I /V Phone Date , (C Signature Nam iz� > •l Qr��� Address /• Phone Date Sign�tue /�G'• o�/� �' /'�' Z 3 •%S 7 �� Q Name/Li C)-),OA � �, ,G L/3 Address l66 sl j��firi� Y �� PhonZeb_v� Date > 1 � Signa a j/ . >3 i-= >�-G> �%► . Name �j/✓yL �I/%` I f2n Address >6 6NON G�-e,u �= r Phone d '�� b Date Si ( 6'� C, I .�� z 3 yr7 �L L' ti �� l nature j Name n, ' - ?� I' - - Address 1 L06 8 No n (n / Phone Date V V G L `�'J C �e �l r� �- 14Z, �- Dg3(o l 1 bID Signature 1 ,, YUwj&Qw-' VA Name Address Phone Date Signature Name Address Phone Date Signature Petition to the Virginia Beach Planning Commision To be presented at the 8 Feburary meeting of the Planning Commision We, the undersigned, strongly oppose the granting of a Conditional Use Permit for a Residential Dog Kennel on property located at 1665 Nanneys Creek Road, Virginia Beach (GPIN 24103672690000). Name? n vvRo Address " 4f5►to--[j)(est-i'jfU Cjo3pSL Phone Date 123�J� Signatures y r vG j, v 3�t5�1 IzI z2J) Name �� L� w� h /' Address 3 �rj a %h,r� e ®, , ' t_ct Phone Date Signati����� n c �- � e-c� � � �/� yak--�J-36o V-A'3/o4 GGGG Name �,,,;,;�,y� �C, Address^jL >t1 Phone Date Signatur -/� eft Z3�.S% Name Address Phone Date Signature Name Address Phone Date Signature Name Address Phone Date Signature Name Address Phone Date Signature Name Address Phone Date Signature Name Address Phone Date Signature .dame Address Phone Date ISignature Petition to the Virginia Beach Planning Commision To be presented at the 8 Feburary meeting of the Planning Commision We, the undersigned, strongly oppose the granting of a Conditional Use Permit for a Residential Dog Kennel on property located at 1665 Nanneys Creek Road, Virginia Beach (GPIN 24103672690000). Name rp�Y '� �iSco\1 Address \k4cicA nz4'ln.,,-, S c,, mac' Phone Date Sign ture t Name-,DAn,q 7>r t SCO! ( Address lIV71 &1A)K PY-C C/'Pefi� Phone Date Signatur� �'A .i3�acJ� ✓A • �3�tS 7 U)'77*3 �4/�_ Namei �` Address n ':� CY2c.� n Phone %we't Date A-, I o(a Signature OMIL&& O% NameR,WAQyCz. por f IU CI�, Address / S Pc/ Phone Date 410(0 Signature _ _ J. V a ZPC[C'1, U f1' a'J45 7 -10 qI Name D� % bC,/-� Address �%//�',/'mil ` /C ,( Phone Date Signature 7Ji!?� Name i �l ¢ �y bee Address/� � �� P�s7 Date Signature � ,f7 �P • r'� (% y � 1}Z� "'2/� G J Named Address Phone Date '�XXJ4 Si nature 9 �' i " Ll 42� 6�7 ' Name ;,` Address Phone Date 1 Signature �t Z(v iv7 Name � � (1 I � � Address A /��� i- � Phone Date Signature li(�- 2�d_7 Nam ���n�"" , ? ; ,� �., ✓� �� ` Address � j�+' �/I, �i�,'2�Ca(/� 'j� � y' -3 `.I•y � � L . Phone � � �� 5 f Date �' C'. Sign ature y' i , �'Y 4 C Page 1 of 1 Carolyn Smith To: buffy045@cox.net Subject: Belinda Kelton's request Thank you very much for your comments! You are absolutely correct that our map was wrong! Thank you for pointing that out. I wanted to let you know that I am in receipt of your letter of opposition as well as several others. These letters will be forwarded to the Planning Commission and to City Council as well. One of your comments in your email was that you wondered if your comments will matter to Planning Commission. Please don't underestimate the influence you will have on the final decision. The staffs perspective is one of land use and we are recommending approval based on the fact that the property is agriculturally zoned and that it is approximately 1 acre in size. Your perspective that you will present to the Planning Commission and City Council is one of someone actually being negatively impacted by the barking dogs. This will be very important in their decision so I encourage you and your neighbors to attend. In response to your other questions... only immediately adjacent property owners will receive certified letters. The orange sign must be posted 1 month ahead of time and I was negligent in telling Ms. Kelton that so the deferral of last month was actually my fault, not any deception on her part as I've heard some of your neighbors say. Next, I don't think I agree that if the kennel is already in existence, that is reason to approve it, as Mr. Donnelly reported Barbara Duke saying. This is not how we evaluate proposals. We look at proposals based on good planning practices and make a recommendation to the Planning Commission based solely on that. The fact that someone objects to a proposal is not how, as professionals, we look at a project. This is an important point because it takes politics, favoritism, etc out of the process. If we recommended denial for every project that had objections, we would be denying many if not most of the applications. The reason there is a public hearing process is so that the public does have a chance to voice their opinions. And thank goodness for this process because it gives you a voice and that is important. In the staffs recommendation, no more than seven (7) adult small breed dogs shall be permanently on the property at one time. In addition, the second condition is as follows: Upon one (1) year from the date of approval, the Zoning Administrator shall administratively review the Conditional Use Permit. If at such time, the Zoning Administrator determines that the Residential Kennel needs additional consideration, based on complaints, etc., the Conditional Use Permit will be referred back to the Planning Commission and City Council. In the event that no valid complaints have been made, the Conditional Use Permit shall remain in effect. Sorry for the long email but I wanted to try to address your issues/questions. Looking forward to meeting you and see your neighbors at the February 8th meeting. It is held in Building 2, City Hall, on the 2nd floor in the City Council Chambers. Noon is the start time but this is actually the last item on the agenda so it will be at least 12:30 but maybe later. It is difficult to say. Thanks again, - Carolyn Karen Lasle From: Igrygotis@cox.net Sent: Tuesday, January 03, 2006 1:34 PM To: Karen Lasley Subject: Kennel Variance at 1665 Nanneys Creek Road January 3, 2006 Dear Ms. Lasley, I am writing in response to a permit application for a dog kennel at 1665 Nanneys Creek Road, Virginia Beach. I live next to this kennel that is already in operation without a legal permit. This has always been a peaceful neighborhood for the fourteen years that we have lived here. When these dogs moved in the peace was gone. I love to garden and can not enjoy this anymore because the dogs constantly yap the entire time I am out in my yard. I also fear their pit bull will get loose again and go after me as it did previously when I was on my front porch. Luckily, he was called back to his yard before he reached me. I am sure you can understand my fear knowing the severe injuries of which these dogs are capable. I also enjoy reading on my screen porch, but because of the "non stop" barking I can no longer take pleasure in this. In addition my husband's blood pressure has been adversely affected. He currently takes six pills a day for hypertension. This constant stress has elevated his blood pressure to unhealthy numbers. I strongly object to approving a variance for a kennel that is already operating illegally, as confirmed by the Animal Control Department. `----�lso, Ms. Lasley, I would greatly appreciate your explanation as to why after at least two complaints to Animal Control (which were followed up with two visits), and at least one complaint to the Planning/Zoning Department, no records of any of these incidents are on record as per your office. Note that the Planning/Zoning Department did say they would follow up with my husband's questions and complaints, and never did. I thank you for your time and I truly hope you will take extreme consideration to the constant fear and annoyance this illegal business has caused. Please just imagine how the quality of your home life would be affected living next to a growing dog breeding business. Sincerely, Muriel Donnelly 1669 Nanneys Creek Road Virginia Beach, VA 23457 721-2166 You can email back at my daughter's email address since I do not have a computer. Her email is: lgrygotis@cox.net Page 1 of 1 Carolyn Smith From: Carolyn Engel [buffy045@cox.net] Sent: Sunday, January 08, 2006 11:59 AM To: Carolyn Smith Subject: Kennel application at 1665 Nanneys Creek Road Attachments: "AVG certification" Dear Ms. Smith, I'm sure that by now you know that the residents of Nanneys Creek Road whose property is within ear shot of those yappy dogs housed at 1665 are very unhappy with the ongoing noise and strongly oppose the application for a kennel on that property. Several a -mails have been written to your office but were sent to Karen Lasley instead of you. I'm following this e-mail with copies of the communication from Muriel Donnelly (1669 Nanneys Creek Rd.), Elizabeth Harris (1668 Nanneys Creek Rd.) as well as mine (1673 Nanneys Creek Rd.) so that you have all of the objections in your possession. A petition against the license is in the works and just so you know, not one neighbor on Nanneys Creek Road or Three Pines Court is in favor of this action. Also, the last time I checked, the printed agenda that is posted on the city's web site shows 1669 Nanneys Creek Road as the property requesting application, not 1665. The document is closer in accuracy than what was shown on the original agenda but you need to move the shaded property one house due east. Thank you for all of the help you have given James Donnelly on this matter. He does not have internet access and is finding it difficult to gather all appropriate information on city ordinances. Sincerely, Carolyn K. Engel 1673 Nanneys Creek Road Virginia Beach, VA 23457 757 426-7376 Page 1 of 2 Carolyn Smith From: Carolyn Engel [buffy045@cox.net] Sent: Sunday, January 08, 2006 12:02 PM To: Carolyn Smith Subject: Fw: Application of Belinda Kelton at 1665 Nanneys Creek Road Attachments: "AVG certification" E-mail I sent to Karen Lasley on 12/30/2005. ----- Original Message ----- From: Carolyn Engel To: klasley(a--)vbgov.com Sent: Friday, December 30, 2005 8:41 PM Subject: Application of Belinda Kelton at 1665 Nanneys Creek Road I have some questions for you reference the application of Ms. Kelton to operate a dog kennel at 1665 Nanneys Creek Road, a residential neighborhood. The questions that I have are the result of a conversation that my neighbor James Donnelly had with one of your co-workers in your absence on December 29th. According to Ms. Duke, your office will be recommending the application be approved regardless of the objections of the neighbors at the public hearing. Her explanation was (1) no one has yet objected to the application, (2) the kennel has already been established and (3) there have been no past complaints of noise or dogs running loose and threatening the neighbors. Please understand that I've received this information second hand from Mr. Donnelly and have assured him that I would e-mail you for an explanation as he has no internet or e-mail access. Therefore, some of what he told me may not have been word for word from your office or the information may have been misconstrued by Mr. Donnelly. I know that the property owners immediately bordering this address have received letters informing them of the hearing, but other neighbors are not aware of the application because as of today, the orange sign has not been posted. Is it really true that the decision has already been made and our attending the meeting and voicing our objections will do no good? I am trying to obtain a copy of the prior activity on that address as to dog noise complaints and a pit bull threatening the neighbor as I know that Animal Control has been dispatched there on at least two occasions (see 3 above). As far as item 2 above, how can the kennel already be considered established if it was built illegally in the first place? Ms. Duke stated that because the kennel is located on one acre of land that it should be allowed but our lots are long and narrow and. therefore the kennel is not the required 100 feet from the side property line. If objections to the application should. be made prior to the hearing and. by us waiting until the hearing date will .result in your office assuming that no one objects to the application, shouldn't that fact be made public in the newspaper notice? Page 2 of 2 If the application is granted, is there a maximum number of dogs that will be allowed on the property? The 5 adult dogs that she breeds plus the assorted puppies make an unbelievable noise day and night. Our peaceful neighborhood is no longer peaceful. I cannot imagine that if the close neighbors want to sell their homes that any buyer would want to move in and be subjected to the noise that those dogs make. I look forward to hearing from you reference my questions. Sincerely, Carolyn K. Engel 1673 Nanneys Creek Road Virginia Beach, VA 23457 Pagel of 2 Carolyn Smith From: Carolyn Engel [buffy045@cox.net] Sent: Sunday, January 08, 2006 12:19 PM To: Carolyn Smith Subject: Fw: Kennel Variance at 1665 Nanneys Creek Road Attachments: "AVG certification" E-mail of Muriel Donnelly. ---- Original Message ----- From:lgrygotis cox.net To: klasley@vbgov.com Sent: Tuesday, January 03, 2006 1:33 PM Subject: Kennel Variance at 1665 Nanneys Creek Road January 3, 2006 Dear Ms. Lasley, I am writing in response to a permit application for a dog kennel at 1665 Nanneys Creek Road, Virginia Beach. I live next to this kennel that is already in operation without a legal permit. This has always been a peaceful neighborhood for the fourteen years that we have lived here. When these dogs moved in the peace was gone. I love to garden and can not enjoy this anymore because the dogs constantly yap the entire time I am out in my yard. I also fear their pit bull will get loose again and go after me as it did previously when I was on my front porch. Luckily, he was called back to his yard before he reached me. I am sure you can understand my fear knowing the severe injuries of which these dogs are capable. I also enjoy reading on my screen porch, but because of the "non stop" barking I can no longer take pleasure in this. In addition my husband's blood pressure has been adversely affected. He currently takes six pills a day for hypertension. This constant stress has elevated his blood pressure to unhealthy numbers. I strongly object to approving a variance for a kennel that is already operating illegally, as confirmed by the Animal Control Department. Also, Ms. Lasley, I would greatly appreciate your explanation as to why after at least two complaints to Animal Control (which were followed up with two visits), and at least one complaint to the Planning/Zoning Department, no records of any of these incidents are on record as per your office. Note that the Planning/Zoning Department did say they would follow up with my husband's questions and complaints, and never did. I thank you for your time and I truly hope you will take extreme consideration to the constant fear and annoyance this illegal business has caused. Please just imagine how the quality of your home life would be affected living next to a growing dog breeding business. Sincerely, Muriel Donnelly 1669 Nanneys Creek Road Virginia Beach, VA 23457 Page 2 of 2 721-2166 You can email back at my daughter's email address since I do not have a computer. Her email is: IgLrygotis@cox.net No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.1.371 / Virus Database: 267.14.11/219 - Release Date: 1/2/2006 Pagel of 2 Carolyn Smith From: Carolyn Engel (buffy045@cox.net] Sent: Sunday, January 08, 2006 12:21 PM To: Carolyn Smith Subject: Fw: Kennel Application Attachments: "AVG certification" Letter from Elizabeth Harris. ----- Original Message ----- From: EAHRACQUET(cb-aol.com To: klasleyCd-vbgov.com Cc: buffy045(&—cox.net Sent: Monday, January 02, 2006 3:17 PM Subject: Kennel Application Ms Lasley, I am writing regarding an application for a residential kennel license made by the home owner at 1665 Nanneys Creek Rd. I live directly across the street and strongly oppose the granting of this permit. The residence currently have 6 or more dogs in violation of the City Ordinance. They have at least 4 or more smaller dogs that bark and disturb the repose of those living nearby. The dogs bark whenever the garage doors are opened or closed, whenever cars come and go from the driveway and for no apparent reason. The home owners normally ignore the barking or yell at them to "shut up." This command does not prevent them from continuing to bark and disturbing others. I often sit in my yard to read when the weather is pleasant and find the barking of these dogs disturbing. We have tried to be understanding of their right to own dogs but the request for a kennel license is not acceptable. More disturbing than the barking dogs are the two larger dogs, one of which is pit bull. I have knowledge of the pit bull charging neighbors on both sides. On one occasion the dog entered a neighbors yard and chased an elderly lady up a ladder. We should not have to be afraid to enjoy our yards. I have an elderly parent living with me and an very concerned for his safety. The dogs have escaped from the kennel and have chased my cat in my yard. A family member was outside supervising the cat which I believe prevented the dog from injuring my infirm pet. These neighbors have vehicles arriving and leaving during the evening and early morning hours with stereos playing very loudly. This disturbs the sleep of the neighbors. This is not relevant to the current application but is indicative of their lack of concern and consideration of others. They neglected to post the required sign until yesterday which prevented the neighborhood from having timely knowledge of their intent. I and others will attend the Planning Commission meeting on Feb. 8 to voice our concerns. I am hopeful staff will listen to the concerns of the community and deny this application. Elizabeth Harris 1668 Nanneys Creek Rd. Virginia Beach, VA 23457 757-426-0436 No virus found in this incoming message. Checked by AVG Free Edition. Page 1 of 1 Carolyn Smith From: rodgers_f rodgers [rodgers_f@msn.com] Sent: Friday, January 13, 2006 2:04 PM To: Carolyn Smith Subject: residential kennel Ms. Smith, 1 am writing to you to add my name and my husbands name as opposed to the application for a conditional use permit for a residential kennel. Property located at 1556 Nanneys Creek Rd (GPIN 24103672690000) Although, this area is considered rural that particular piece of property is only on 1 acre maybe 1 1/2 acres. I believe way to small to accommodate a residential kennel. If the piece of property in question was over 5 acres, I would not be opposed. Thank you for your consideration. Sincerely, Francis & Noreen Rodgers 1736 Nanneys Creek Rd. Va Beach, VA 23457 Page 1 of 1 Carolyn Smith From: James Wolfe Odwolfe@cox.net] Sent: Monday, February 06, 2006 6:17 PM To: Carolyn Smith Subject: Application for Conditional Use Permit Ms. Smith, I am writing to urge you to disapprove the conditional use permit for a residential kennel in the case of Belinda Kelton Listed as Agenda item#24. I live at 1676 Nanneys Creek Road, and while I am not directly adjacent to the property, I do not believe that the location is conducive to this many dogs. Additionally, there is a deed restriction of two dogs per household on my home and I believe on all the other homes in this small development. Thank You James Wolfe 426-1333 jdwolfe@cox.net 117 /7 (1(lr- January 3, 2006 4521 Three Pine Lane Virginia Beach, Va. 23457 Re: Application by Belinda Kelton for Conditional Use Permit for a Residential Kennel on property located at 1665 Nanneys Creek Road Dear Planning Commissioners: This letter is to express our strong objections to the application submitted by Ms. Kelton to operate a kennel on residential property in our neighborhood. We are original owners of property in this development that was purchased under an agreement that included a Declaration of Restrictions (copy attached) that places certain restrictions on property owners in the neighborhood. The intent of the restrictions are to protect the value of our properties. We believe that a kennel would adversely impact the value of our property and ask that you NOT grant this permit. The property located at 1665 Nanneys Creek Road is bound by these restrictions. Restriction Number Two requires that each household not keep more than two dogs. We request that the city not grant the request for a residential kennel. It is our belief that Ms. Kelton is in violation of the Declaration of Restrictions that are recorded in the Clerk's Office of the Circuit Court of the City of Virgnia Beach in Deed Book 2572, pages 1614 and 1615, by keeping more than two dogs on her property. Sincerely, Thomas Burke, Jr. Deborah Burke L. APPOINTMENTS BEACHES and WATERWAYS COMMISSION HUMAN RIGHTS COMMISSION INVESTMENT PARTNERSHIP ADVISORY COMMITTEE — PPEA MEAL TAX TASK FORCE OCEANA LAND USE CONFORMITY COMMITTEE SOCIAL SERVICES BOARD SOUTHEASTERN PUBLIC SERVICE AUTHORITY — SPSA M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT F VIRGINIA BEACH Y OF COUNCIL ACTIONS V 0 I M B L h 14, 2006 C E S L A W D C M R C [[AGENDA 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 SUBJECT MOTION VOTE E E E A 0 R V D V 0 0 L R S N X F E T A N D UIU IIU IV-E CERTIFICATION OF CLOSED SESSION CERTIFIED 11-0 Y Y Y Y Y Y Y Y Y Y Y F-1 MINUTES — March 7, 2006 APPROVED 11-0 Y Y Y Y Y Y Y Y Y Y Y G/H-1 BRIEFING/PUBLIC COMMENT NO SPEAKERS OCEANA LAND USE CONFORMITY UJ-1 Resolutions to REFER Ordinances to Planning ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Comm re APZ-1: CONSENT A. AMEND Chapter 1 of Compr Plan re voluntary conversion of nonconforming uses to conforming uses B. AMEND Article 18 of CZO §§ 1803/1807/ADD §§ 1808 — 1810 re conditional uses (APZ-1 Incentives Ordinance) 2 Resolution to SUPPORT National Park ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Service's Captain John Smith Chesapeake CONSENT National Historic Water Trail feasibility study. 3 Ordinance to AUTHORIZE agreement with ADOPTED 10-1 Y Y Y Y Y Y Y N Y Y Y ULI re Pungo Village Land Use study. 4 Ordinance to TRANSFER $43,400 re ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y contribution to Hampton Roads Military and CONSENT Federal Facilities Alliance. ADD Ordinance to AMEND Airport Noise ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y ON Attenuation and Safety Ordinance requiring CONSENT certain disclosures in sales and rentals of real estate. K PLANNING — NO ACTION NO ACTION 1. BELLAMY ASSOC COZ 2. Ordinance to AMEND Section 502 of CZO re front yard setbacks CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V O I DATE: March 14, 2006 M B LC E S L PAGE: 2 D C M R C A W I J L A N R H N I AGENDA E D O A D D E M U L W ITEM # SUBJECT MOTION VOTE Z E Y N N D O E I E S O E E A O R V D V O O L R S N X F E T A N D L-I Variance re lot size to §4.4(b) of the Subdivision APPROVED/ 11-0 Y Y Y Y Y Y Y Y Ordinance that lots meet requirement of CZO for CONDITIONED, Y Y Y BENJAMIN J. WILLIS, III at 404 541h Street BY CONSENT to create two (2) single-family lots. (DISTRICT 5 — LYNNHAVEN) 2 Variance re lot width to §4.4(b) of the APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y Subdivision Ordinance that lots meet requirement CONDITIONED, of CZO for JESSUP CONSTRUCTION, L.L.C. at 956 Hurds Road to create two (2) BY CONSENT single-family lots. (DISTRICT 5 — LYNNHAVEN) 3 RICHARD/LOVIE FORTUNE to place mobile ALLOWED 11-0 Y Y Y Y Y Y Y Y Y Y Y home at 3892 Charity Neck Road. WITHDRAWAL, (DISTRICT 7 — PRINCESS ANNE) BY CONSENT 4 SUNSATIONS REALTY, L.L.C. COZ from APPROVED AS 11-0 Y Y Y Y Y Y Y Y Y Y Y B-2 to Conditional I-1 for office/warehouse at PROFFERED, Village Road/Va Bea Blvd. (DISTRICT 6 — BEACH) BY CONSENT 5 M.B.B., INC. CUP mini -warehouses at Diamond APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y Springs Road/Haden Road. CONDITIONED, (DISTRICT 4 — BAYSIDE) BY CONSENT 6 Ordinance to AMEND §§111/201/502 of CZO ADOPTED, BY H-0 Y Y Y Y Y Y Y Y Y Y Y re rear yard setbacks. CONSENT M APPOINTMENTS BEACHES and WATERWAYS COMMISSION RESCHEDULED B Y C O N S E N S U S ADD ADVERTISING ADVISORY COMMITTEE APPOINTED 11-0 Y Y Y Y Y Y Y Y Y Y Y ON No Term Cathy Sprouse ADD BIKEWAYS and TRAILS ADVISORY REAPPOINTED 11-0 Y Y Y Y Y Y Y Y Y Y Y ON COMMITTEE Term: 07/01/2006-06/30/2009 Fred G. Adams 3 year term Janet Werndli HUMAN RIGHTS COMMISSION RESCHEDULED B Y C O N S E N S U S INVESTMENT PARTNERSHIP ADVISORY RESCHEDULED B Y C O N S E N S U S COMMITTEE — PPEA MEAL TAX TASK FORCE RESCHEDULED B Y C 0 N S E N S U S ITY OF VIRGINIA BEACH MARY OF COUNCIL ACTIONS V 0 1 M B L C E S L March 14, 2006 D C M R C A W [[AGENDA I J L A N R H N I 3 E D 0 A D D E M U L W Z Y N N D O E I E S 0 SUBJECT MOTION VOTE E E E A 0 R V D V 0 0 D L R S N X F E T A N RESORT AREA COMMITTEE (RAC) Term: Unexpired thru 12/31/2007 APPOINTED Arthur Webb 11-0 Y Y Y Y Y Y Y Y Y Y Y SOCIAL SERVICES BOARD RESCHEDULED B Y C O N S E N S U S SOUTHEASTERN PUBLIC SERVICE AUTHORITY — SPSA RESCHEDULED B Y C 0 N S E N S U S N/O/P ADJOURNMENT 7:15 P.M.