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HomeMy WebLinkAboutOCTOBER 9, 2007 AGENDACITY COUNCIL MAYOR MEYERA E OBERNDORF, At -Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 WILLIAM R. DeSTEPH, At -Large HARRY E. DIEZEL, Kempsville - District 2 ROBERT M. DYER„ Centerville - District I BARBARA M HENLEY, Princess Anne — District 7 REBA S. McCLANAN, Rose Hall - District 3 JOHN E. UHRIN, Beach — District 6 RONA. VILLANUEVA, At -Large ROSEMARY WILSON, At -Large JAMES L. WOOD, Lynnhaven -District 5 CITY MANAGER -JAMES K. SPORE CITY ATTORNEY - LESLIE L. LILLEY CITY CLERK - RUTH HODGES FRASER, MMC CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA 09 OCTOBER 2007 CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 234568005 PHONE: (757) 385-4303 FAX (75 7) 385-5669 E-MAIL: Ctycncl@vbgov.com I. CITY MANAGER'S BRIEFINGS - Conference Room 3:00 PM A. SANDLER CENTER MANAGEMENT AGREEMENT Emily Spruill, Director — Cultural Affairs Patricia Phillips, Director — Finance B. CELL TOWERS William J. Whitney, Director — Planning Stephen J. White, Planning Evaluation Coordinator C. NOISE ORDINANCE Mark Stiles, Deputy City Attorney II CITY COUNCIL COMMENTS III AGENDA REVIEW IV INFORMAL SESSION - Conference Room 5:00 PM A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION 0 C 193 E. CALL TO ORDER — Mayor Meyera E. Oberndorf - Council Chamber - 6:00 PM INVOCATION: Reverend Thomas Powell Calvary Chapel of Virginia Beach PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA ELECTRONIC ROLL CALL OF CITY COUNCIL CERTIFICATION OF CLOSED SESSION F. MINUTES G ri I.. J. 1. INFORMAL AND FORMAL SESSIONS AGENDA FOR FORMAL SESSION PUBLIC HEARING 1. 15`h STREET PIER — Proposed Franchise CONSENT AGENDA RESOLUTION/ORDINANCES October 2, 2007 1. Resolution re an Operating Agreement for the Performing Arts to AUTHORIZE the City Manager to execute the necessary documents with the SANDLER CENTER 2. Resolution requesting Members of the City's local Delegation to the General Assembly sponsor and/or support legislation that will realize the goals and objectives set forth in Virginia Beach's 2008 Community Legislative Agenda, including amendments to the City Charter [deferred September 11, 2007] 3. Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for the use of City property at the Oceanfront and 15`h Street re the operation of the Virginia Beach Fishing Pier. 4. Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT additional positions from the State Compensation Board; APPROPRIATE $327,330 in additional State revenue; and, TRANSFER $145,212 from the General Fund Reserve for Contingencies to their FY 2007-8 Operating Budget K. PLANNING 1. Variance to § 4.4(b) of the Subdivision Ordinance that requires all newly createad lots meet the requirements of the City Zoning Ordinance (CZO) for PYONG TU CHO at 1212 North Inlynnview Road to subdivide the existing two lots and develop a new lot with a single family dwelling. (deferred indefinitely by City Council on January 9, 2007 and August 14, 2007) DISTRICT 5 — LYNNHAVEN RECOMMENDATION DENIAL 2. Application of CH&B ASSOCIATES, L.L.P. re a conceptual Site Plan addressing the site and building design elements consistent with the existing commercial designation at the Northeast corner of Princess Anne Road and South Plaza Trail in accordance with proffers previously approved by City Council on September 9, 2003. DISTRICT 2 — KEMPSVILLE RECOMMENDATION APPROVAL 3. Application of COLLEGE PARK, L.L.C. for a Modification of Proffers to cover the parking spaces with a "carport" and add a maintenance structure at 6226 Providence Road (approved by City Council on January 23, 2007). DISTRICT 1— CENTERVILLE RECOMMENDATION APPROVAL 4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions to enclose the existing storage and picnic shelter at 2208 Princess Anne Road (approved by City Council on April 25, 1988). DISTRICT 7 — PRINCESS ANNE RECOMMENDATION. APPROVAL 5. Application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a church at 2180 McComas Way, Suite 113. DISTRICT 7 — PRINCESS ANNE RECOMMENDATION APPROVAL 6. Application of WILLIE DONALD MARTIN, JR. for a Conditional Use Permit re an auto repair garage at 1128 Barrs Road. DISTRICT 4 — BAYSIDE STAFF RECOMMENDATION: RECOMMENDATION INDEFINITE DEFERRAL APPROVAL 7. Application of RAPPAHANNOCK SPORTS, L.L.C. for a Conditional Use Permit re an indoor recreation facility at the Southeast intersection of Holland Road and Warwick Drive. DISTRICT 6 — BEACH RECOMMENDATION APPROVAL 8. Application of CINGULAR WIRELESS for a Conditional Use Permit re a communication tower, antennas and equipment building at 4021 Charity Neck Road. DISTRICT 7 — PRINCESS ANNE RECOMMENDATION APPROVAL 9. Application of GREG SMITH FOR a Conditional Use Permit re a home occupation (making and selling glass bead pendants in the garage) at 594 Van Buren Court. DISTRICT 3 — ROSE HALL RECOMMENDATION APPROVAL 10. Application of MATHEWS GREEN ASSOCIATES, L.L.C. for a Change of Zoning District Classification from R-20 Residential District with a PD -112 Overlay to P-1 Preservation District at 2217 Mathews Green. [Conditional Zoning approved with Proffers August 22, 2006] DISTRICT 7 — PRINCESS ANNE. RECOMMENDATION APPROVAL 11. Application of KOTARIDES DEVELOPERS for a Change of Zoning District Classification from B-2 Community Business District to Conditional A-24 Apartment District re rental apartments within twelve buildings at 920 South Military Highway. DISTRICT 1— CENTERVILLE RECOMMENDATION APPROVAL L. APPOINTMENTS WORKFORCE HOUSING ADVISORY BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT CITYWIDE TOWN MEETINGS October 16, 2007 Virginia Beach Convention Center - 7:15 pm FY 2008-2010 Budget January 15, 2008 Location to be Announced — 7:15 pm Stormwater Plans and Funding CITY COUNCIL's WORKSHOP 16 OCTOBER 2007 CANCELLED [IN LIEU OF THE CITY-WIDE TOWN MEETING] If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 Agenda 10/09/07/gw www.vbgov.com I. CITY MANAGER'S BRIEFINGS - Conference Room 3:00 PM A. SANDLER CENTER MANAGEMENT AGREEMENT Emily Spruill, Director — Cultural Affairs Patricia Phillips, Director — Finance B. CELL TOWERS William J. Whitney, Director — Planning Stephen J. White, Planning Evaluation Coordinator C. NOISE ORDINANCE Mark Stiles, Deputy City Attorney II CITY COUNCIL COMMENTS III AGENDA REVIEW IV INFORMAL SESSION - Conference Room 5:30 PM A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION A. C 0 E. CALL TO ORDER — Mayor Meyers E. Oberndorf - Council Chamber - 6:00 PM INVOCATION: Reverend Thomas Powell Calvary Chapel of Virginia Beach PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA ELECTRONIC ROLL CALL OF CITY COUNCIL CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL AND FORMAL SESSIONS October 2, 2007 G. AGENDA FOR FORMAL SESSION arsoluttott410 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. U 'o a? ,pr S OF OUR 00 HS NPT�O arsoluttott410 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. PUBLIC HEARING 1. 15'' STREET PIER — Proposed Franchise PUBLIC HEARING FRANCHISE OF CITY PROPERTY The Virginia Beach City Council will hold a PUBLIC HEARING on the proposed franchise of City -owned property on Tuesday October 9, 2007 at 6:00 p.m. in the Council Chamber of the City Hall Building (Building #1) at the Virginia Beach Municipal Center, Virginia Beach, Virginia. The purpose of this Hearing will be to obtain public comment on the City's proposal to franchise the following: The pier property, generally known as the "15th Street Pier", extending from the Boardwalk over the sandy beach and into the Atlantic Ocean generally east of 15th Street in the City of Virginia Beach. If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303. Any questions concerning this matter should be directed to the Department of Management Services — Facilities Management Office, Room 228, Building 18, at the Virginia Beach Municipal Center. The Facilities Management Office telephone number is (757)385-8234. th HodbesOPraser, MMC City Clerk CONSENT AGENDA J. RESOLUTION/ORDINANCES Resolution re an Operating Agreement for the Performing Arts to AUTHORIZE the City Manager to execute the necessary documents with the SANDLER CENTER 2. Resolution requesting Members of the City's local General Assembly Delegation sponsor and/or support legislation that will realize the goals and objectives set forth in Virginia Beach's 2008 Community Legislative Agenda, including amendments to the City Charter [deferred September 11, 2007] 3. Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for the use o: City property at the Oceanfront and 15th Street re the operation of the Virginia Beach Fishing Pier. 4. Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT additional positions from the State Compensation Board; APPROPRIATE $327,330 in additional State revenue; and, TRANSFER $145,212 from the General Fund Reserve for Contingencies to their FY 2007-8 Operating Budget CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Approving an Operating Agreement for the Sandler Center for the Performing Arts and Authorizing the City Manager to Execute the Agreement on Behalf of the City MEETING DATE: October 9, 2007 ■ Background: The Sandler Center for the Performing Arts ("Facility"), a 1200 - seat professional quality performance hall in Town Center for cultural performances and family shows, is scheduled to open in November 2007. ■ Considerations: In 2005, the City sought proposals for the promotion, operation, and management of the Facility. After extensive analysis of the two proposals received by the City, on February 21, 2006, the selection committee presented their recommendation to City Council to contract with Global Spectrum, L.P. ("Global") for the Facility's operation, programming and maintenance. The City entered into a Pre -Opening Services Agreement with Global on August 8, 2006. The Pre -Opening Agreement will expire when the Facility opens in November 2007. Under the Pre -Opening Agreement, Global has reviewed the Facility design and construction, hardware schedules, interior finish schedules, and graphics and signage; coordinated transitions from construction project to operating the Facility; developed operating pro -formas; developed an operating and maintenance manual; booked and scheduled events; developed reporting and accounting systems; developed a marketing plan, advertising campaign and materials; maintained ongoing community relations and exposure; planned grand opening events; and hired staff. Pursuant to the terms of the proposed Operating Agreement with Global, Global will perform the following services upon the opening of the Facility: • Promote, operate and manage the Facility. • Manage the Facility in accordance with the Operations Manual, to include purchasing, payroll, fire prevention, security, crowd control, traffic management, parking management and coordination, routine repairs, preventative maintenance, janitorial and housekeeping services, energy conservation, admission procedures, and general user services. • Procure, negotiate, execute, deliver and administer any and all licenses, agreements and contracts. • Book and schedule events (as outlined in the City's booking policy). • Provide day-to-day administrative services. • Employ, supervise and direct all of its employees. • Maintain reporting system and accounting systems. • Execute marketing plan, advertising campaign and materials. • Maintain ongoing community relations and exposure. ■ Public Information: Public information will be handled through the Council agenda notification process. ■ Recommendations: Approval ■ Attachments: Resolution, Summary of Terms and Operating Agreement Recommended Action: Approval Submitting Department/Agency: Office of Cultural Affairs City Manager: S jam_ 1 A RESOLUTION APPROVING AN OPERATING 2 AGREEMENT FOR THE SANDLER CENTER FOR THE 3 PERFORMING ARTS AND AUTHORIZING THE CITY 4 MANAGER TO EXECUTE THE AGREEMENT ON BEHALF 5 OF THE CITY 6 7 WHEREAS, the Sandler Center for the Performing Arts ("SCPA"), a 1200 seat 8 performance hall located in Town Center, is scheduled to open in November 2007; 9 10 WHEREAS, following the City's issuance of a request for proposals, a selection 11 committee presented its recommendation to the City Council that the City contract with 12 Global Spectrum, L.P. ("Global") for the operation, programming and maintenance of 13 the SCPA; 14 15 WHEREAS, the City Council agreed with the recommendation of the selection 16 committee and authorized the City Manager to execute a pre -opening services 17 agreement with Global for the operation, programming and maintenance of the SCPA 18 on August 8, 2006; and 19 20 WHEREAS, City staff has worked diligently with Global throughout the last year 21 to negotiate an operating agreement for the promotion, operation, and management of 22 the SCPA when it opens in November 2007; and 23 24 WHEREAS, the City and Global have agreed to the terms of a proposed 25 operating agreement for the SCPA. 26 27 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 28 VIRGINIA BEACH, VIRGINIA THAT: 29 30 The Operating Agreement presented to the City Council and on file with the City 31 Clerk is approved and the City Manager is authorized to execute same on behalf of the 32 City of Virginia Beach. 33 34 Adopted by the City Council of the City of Virginia Beach, Virginia on this 35 day of , 2007. APPROVED AS TO CONTENT: Office of dulturaPArts CA10512 September 28, 2007 R2 APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office SUMMARY OF TERMS Operating Agreement for the Sandler Center for the Performing Arts at Virginia Beach Parties: City and Global Spectrum, L.P., a Delaware limited partnership ("Global") Purpose: Global has been selected to promote, manage and operate the Sandler Center for the Performing Arts ("SCPA'). Term: 3 years; may be renewed for 2 additional 1 -year periods Services to be provided by Global pursuant to the Operating Agreement: • Promote, operate and manage the SCPA. • Manage the SCPA in accordance with the operations manual, to include purchasing, payroll, ticketing, fire prevention, security, crowd control, traffic management, parking management and coordination, routing repairs, preventative maintenance, janitorial and housekeeping services, energy conservation, admission procedures, and general user services. • Procure, negotiate and execute, in its own name and its capacity as manager, all licenses, agreements, and contracts, and deliver and administer those documents. • Maintain the SCPA and all fixtures, equipment, systems and materials in the SCPA. • Book and schedule events (as outlined in the City's booking policy). • Provide day-to-day administrative services. • Employ, supervise and direct all of SCPA's employees. • Maintain reporting system and accounting systems. • Execute marketing plan, advertising campaign and materials. • Maintain ongoing community relations and exposure. Cost: Fixed Fee: $16,000 per month during initial operating year. (Thereafter, adjusted annually applying consumer price index.) Incentive Fee: For each operating year, incentive fee may be paid equal to 12% of the following operating revenues: 1. Rental Income — theater and rehearsal studio in excess of $250,000; 2. Net food and beverage sales income in excess of $100,000; 3. Net valet parking revenue; 4. Global's mark-up on expenses reimbursed by users/promoters; 5. Box office rebate revenue; and 6. Advertising sales and sponsorship income in excess of $100,000. * Incentive fee is contingent on Global achieving in each operating year the aggregate budgeted revenue from the operating revenue categories on which the incentive fee is calculated. Other Terms: • City retains ownership of SCPA at all times. City Contract Administrator has the right to enter the facility to inspect at any time. • Global shall provide an Annual Plan to the City for each operating year. Annual Plan consists of marketing plan, market research, marketing objectives and strategies, booking priorities, targeted events, and advertising opportunities. • Global shall provide an annual Operating Budget to the City for year operating year for operation, management, promotion and maintenance of the SCPA. • Global or its affiliate shall be responsible for ticket sales (other than events sponsored by resident companies). Global shall hold ticket sale revenues for upcoming events in trust for the protection of ticket purchasers. • All personnel operating the SCPA shall be hired by Global and shall be employees of Global, not of the City. • Global shall execute user/rental agreements for the use of the SCPA in the form approved by the City. • Global indemnifies and holds harmless the City and its employees. • Global to maintain appropriate levels of insurance coverage. • Standard non-discrimination, drug free workplace and choice of law/venue clauses. • Global shall comply with applicable environmental laws. • Global shall be permitted to use the name and logo of the SCPA for purpose of promoting the SCPA, subject to City's approval. • Global shall comply with City's minority participation requirements. • Global shall comply with the spending limitations imposed in the City's approved budget. In the event Global incurs expenditures or commits to expend sums in excess of amount permitted in the approved budget, Global is liable for such expenditures. • Global's parent company, Comcast-Spectacor, L.P., provided a guarantee of performance to the City that guarantees Global's performance under this Agreement. OPERATING AGREEMENT SANDLER CENTER FOR THE PERFORMING ARTS AT VIRGINIA BEACH TABLE OF CONTENTS ARTICLE I THE FACILITY.........................................................................................................1 ARTICLE II SCOPE OF SERVICES.............................................................................................4 ARTICLE III COMPENSATION..................................................................................................8 ARTICLE IV TERM; TERMINATION........................................................................................9 ARTICLEV OWNERSHIP.........................................................................................................10 ARTICLE VI ANNUAL PLAN AND OPERATING BUDGET.................................................11 ARTICLE VII PROCEDURE FOR HANDLING INCOME.......................................................14 ARTICLE VIII FISCAL RESPONSIBILITY..............................................................................17 ARTICLE IX CAPITAL IMPROVEMENTS..............................................................................20 ARTICLEX [RESERVED].........................................................................................................21 ARTICLE XI PERSONNEL........................................................................................................21 ARTICLE XII AGREEMENT MONITORING AND GENERAL MANAGER ........................22 ARTICLE XIII USER/RENTAL AGREEMENTS......................................................................23 ARTICLE XIV INDEMNIFICATION.........................................................................................23 ARTICLEXV INSURANCE; BONDS.......................................................................................24 ARTICLE XVI COMPLIANCE WITH EQUAL OPPORTUNITY LAWS, REGULATIONS, RULESAND OTHER LAWS.......................................................................................................25 ARTICLE XVII PROHIBITION AGAINST CONTINGENT FEES..........................................25 ARTICLE XVIII FUNDING CONTINGENCY..........................................................................26 ARTICLE XIX PERMITS, LICENSES, TAXES AND LIENS..................................................26 ARTICLE XX INDEPENDENT CONTRACTOR......................................................................26 ARTICLE XXI COMPLIANCE WITH ENVIRONMENTAL LAWS.......................................27 ARTICLE XXII NAME AND LOGOS.......................................................................................27 ARTICLE XXIII MINORITY PARTICIPATION REQUIREMENTS.......................................28 ARTICLE XXIV TAX EXEMPTION COVENANT - FINANCING DOCUMENTS ...............28 -1- ARTICLE XXV GUARANTY OF PERFORMANCE................................................................29 ARTICLEXXVI MISCELLANEOUS........................................................................................29 OPERATING AGREEMENT SANDLER CENTER FOR THE PERFORMING ARTS AT VIRGINIA BEACH This Operating Agreement for the Sandler Center for the Performing Arts at Virginia Beach ("Agreement") is made as of the —day of , 2007 ("Effective Date"), by and between the City of Virginia Beach, a body politic and corporate and political subdivision of the Commonwealth of Virginia ("City"), and Global Spectrum, L.P., a Delaware limited partnership ("Manager"). RECITALS WHEREAS, the City has engaged a third party to plan, engineer, design (both exterior and interior), and construct a twelve hundred seat (1200) professional quality performance hall in the City of Virginia Beach, Virginia, for concerts, performances and family shows, to be known as the Sandler Center for the Performing Arts at Virginia Beach ("Facility"); and WHEREAS, the City has previously engaged Manager to perform certain specified pre- opening services with respect to the Facility pursuant to a Pre -Opening Services Agreement dated as of the 21" day of July, 2006 (the "Pre -Opening Agreement"), WHEREAS, the Pre -Opening Agreement terminates on the date on which the Facility opens to the general public for an event performance (the "Opening Date"), which date is expected to be October 1, 2007; and WHEREAS, the City has selected Manager to manage the operations of the Facility following the Opening Date, and Manager desires to accept such engagement, pursuant to the terms and conditions contained herein; and NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants and promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows: ARTICLE I THE FACILITY Section 1.1. Description of the Facility. All references to the Facility in this Agreement shall be deemed to include, and Manager's duties hereunder shall cover, the outdoor performance plazas, lobby areas, performance theatres, lounges, performer support areas, rehearsal halls, stage support areas, meeting rooms, common areas, executive and other offices, storage and utility facilities, box offices, and the entrances, grounds, and sidewalks surrounding the Facility and adjacent thereto, and any other spaces in the Facility. Section 1.2. Definitions. For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the definitions and identifications set forth below are considered to be correct and true and are agreed upon by the parties. "Affiliate" shall mean any entity that directly or indirectly, through one or more intermediaries, controls or is controlled by Manager. For purposes of this definition, "control" means the ownership of equity securities or other ownership interests that represent more than 40% of the voting power of the controlled entity. For purposes of this Agreement, any entity controlled by Manager's parent, Comcast-Spectacor, L.P., or its parent, Comcast Corporation, shall be considered an "Affiliate" of Manager. "Annual Plan" has the meaning set forth in Section 6.1 hereof. "Appropriation Deficiency Notice" has the meaning set forth in Section 7.2 hereof. "Approved Budget" means any budget submitted by Manager and approved by the City in accordance with Section 6.2 hereof, as such budget may be amended from time to time in accordance with the provisions of Section 6.3 and 6.4 hereof. "Capital Expenditures" means all expenditures for purchases of additional or replacement furniture, fixtures, machinery, or equipment, the cost of which is in excess of $5,000 and the depreciable life of which, according to generally accepted accounting principles, is in excess of one (1) year and any other item of expense that, according to generally accepted accounting principles, is in excess of $5,000 and not properly deducted as a current expense on the books of Manager, but rather should be capitalized. "Cash Flow Shortfall" has the meaning set forth in Section 7.1 hereof. "City Contract Administrator" shall mean the City Contract Administrator described in Section 12.1. "Consumer Price Index" shall mean the average Consumer Price Index for All Urban Consumers (CPI -U) for the U.S. City Average for All Items for the twelve (12) months immediately preceding the applicable Operating Year, as published by the Bureau of Labor Statistics. "Current Term" means the period beginning on November 1, 2007, and ending on October 31, 2010. "Environmental Law" or "Environmental Laws" shall mean any and all federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority with jurisdiction over the City or the Facility regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials or Petroleum Products or environmental protection as in effect at the Effective Date hereof or at any time in the future. "Event Operating Account" means the account by that name established pursuant to Article VII hereof, which account shall consist of two (2) subaccounts designated as the "Resident Company Subaccount" and the "Non -Resident Company Subaccount." "Facility Operating Account(s)" means the account(s) by that name established pursuant to Article VII hereof. -2- "Financing Documents" shall mean any of the agreements, instruments or other documents pursuant to which, or in connection with which, the Tax -Exempt Bonds have or will be issued to finance a portion of the cost of the construction of the Facility. "Fixed Fee" has the meaning set forth in Section 3.1 hereof. "Governmental Authority" shall mean any Federal, State, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or any court, in each case, of the United States. "Hazardous Materials" shall mean any hazardous material, hazardous waste, infectious medical waste, or hazardous or toxic substance defined or regulated as such in or under any Environmental Law, including, without limitation, materials exhibiting the characteristics of ignitability, corrosivity, reactivity or extraction procedure toxicity, as such terms are defined in connection with hazardous materials or hazardous wastes or hazardous or toxic substances in any Environmental Law. "Incentive Fee" has the meaning set forth in Section 3.2 hereof. "Minority-owned Business" or "Minority-owned Businesses" shall mean a business or other entity that is at least fifty-one (51) percent owned and controlled by one or more socially and economically disadvantaged person(s). For purposes of this definition, the term "control" shall mean exercising the power to make policy decisions and being actively involved in day-to- day management. Such disadvantage may arise from cultural, racial, chronic economic circumstances or background, or other similar cause. Such persons include, but are not limited to, Black Americans, Hispanic Americans, Asian Americans, Eskimos, and Aleuts. "Operating Expenses" has the meaning set forth in Section 8.10 hereof. "Operating Revenues" has the meaning set forth in Section 8.9 hereof. "Operating Term" means the Current Term and all Subsequent Extension Term(s), if any. "Operating Year" means the eight (8) month period of time during which the Facility is operated commencing on November 1, 2007, and ending on June 30, 2008, each twelve (12) month period of time thereafter ending June 30, 2009, and June 30, 2010, and the four (4) month period beginning July 1, 2010, and ending October 31, 2010. "Operations Manual" means that certain existing operations manual for the Facility developed by Manager and approved by the City, as the same may be amended from time to time in accordance with the provisions of this Agreement, and which includes, without limitation, a priority booking policy/schedule for the Facility, a schedule of rates to be charged for the use of the Facility and a policy on reducing or waiving such rates in appropriate circumstances, and a description of the process to be used to measure customer satisfaction with the Facility and Manager's maintenance and operation thereof. "Petroleum Products" shall mean gasoline, diesel fuel, motor oil, waste or used oil, heating oil, kerosene and any other petroleum products. -3- "Procurement Laws" shall mean the Virginia Public Procurement Act (Va. Code §2.2- 4300 et seq.) and the procurement laws of the City (Virginia Beach City Code Article VI, Chapter 2). "Resident Company" shall mean organizations that meet each of the following five (5) criteria: 1. Be an incorporated, non-profit 501(c)(3) organization. 2. Have a primary activity/mission to produce or present performing arts events that are open to the public. 3. Have plans to contract for a volume of no less than $5,000 worth of time in the Facility for one season; or Have plans to produce or present a season of three (3) or more different productions with a total of five (5) or more public performances in one season. 4. Market a season ticket. (Season or series ticket meaning a ticket or tickets for admittance to a predetermined group of events, usually sold at a savings to the patron and for one seat location.) 5. Be current on payment of all invoices to the Facility and/or such Resident Company's subcontractors. Each of the following shall be deemed a Resident Company for purposes of this Agreement: City of Virginia Beach, City of Virginia Beach Public Schools, Hurrah Players, Virginia Arts Festival, Virginia Beach Chorale, Virginia Beach Forum, Virginia Beach Symphony Orchestra, Virginia Musical Theatre, and Virginia Symphony. "RFP Response" shall mean the Manager's Response dated May 27, 2005, to the City's Request for Proposal dated April 5, 2005. hereof. "Subsequent Extension Term" has the meaning set forth in Section 4.1 hereof. "Tax -Exempt Bonds" shall have the meaning assigned to such term in Section 24.1 "Virginia Arts Festival" or "VAF" shall mean Virginia Arts Festival, Inc. "Woman -owned Business" or "Woman -owned Businesses" shall mean a business or other entity that is at least fifty-one (5 1) percent owned and controlled by a woman or women. For purposes of this definition, the term "control" shall mean exercising power to make policy decisions and being actively involved in day-to-day management. ARTICLE II SCOPE OF SERVICES Section 2.1. The City hereby engages Manager to promote, operate and manage the Facility during the Operating Term upon the terms and conditions hereinafter set forth, and Manager hereby accepts such engagement and agrees to perform and furnish necessary management services, systems and materials as appropriate to operate, supervise, manage and maintain the Facility in the most efficient manner consistent with the operations of other first - In class performance halls and in compliance with all applicable statutes, ordinances, laws, rules, regulations and requirements under Federal, Commonwealth of Virginia, City of Virginia Beach and other local authorities having jurisdiction over the Facility and its use, all pursuant to the terms and conditions contained herein, and subject at all times to the limitations of the Approved Budget. Subject to the terms of this agreement, Manager shall be the sole and exclusive managing agent of the City to manage, operate and promote the Facility during the Operating Term; provided, however, that Manager shall comply with and be subject to existing contracts for the Facility and all policies, procedures, budgets and guidelines established by the City (including, without limitation, any methodology pertaining to the allocation of costs and expenses by the City to the Facility as permitted herein), which policies and procedures may be established or modified by the City from time to time, subject to the terms of this Agreement. Section 2.2. Without limiting the generality of the foregoing, Manager's, obligations hereunder shall include, but shall not be limited to, the performance of the following obligations, subject to controls and restrictions as stated elsewhere in this Agreement and/or the Operations Manual: (a) Manage the Facility in accordance with the Operations Manual, the Annual Plan (including the Approved Budget) and the terms of this Agreement, including, but not limited to, the provision of the following services either directly or through the use of independent contractors: purchasing, payroll, fire prevention, security, crowd control, traffic management, parking management and coordination, routine repairs, preventative maintenance, janitorial and housekeeping services, energy conservation, admission procedures, and general user services. Means and methods of management will effectively accommodate the needs of the mobility impaired and handicapped patrons. (b) Procure, negotiate, execute in its own name and its capacity as manager of the Facility, deliver and administer - in compliance with procurement procedures set forth in Exhibit E - any and all licenses, occupancy agreements, rental agreements, booking commitments, advertising agreements, concession agreements, supplier agreements, service contracts (including, without limitation, contracts for utility service; cleaning, decorating and set- up; interior and exterior landscaping; snow removal; general maintenance; maintenance and inspection of HVAC systems, elevators, stage equipment, fire control panel and other safety equipment; staffing and personnel needs, including guards and ushers; and other services which are necessary or appropriate) and all other contracts and agreements in connection with the management, promotion and operation of the Facility. (i) If any such license, agreement, commitment or contract other than those involving the license, lease or rental of the Facility in the ordinary course of business, or a talent contract in connection with an event in the Facility, has a term that extends beyond the remaining Operating Term hereof, such license, agreement, commitment or contract shall be approved in advance by the City. (ii) Manager hereby agrees that it shall inform the City about and obtain prior approval before entering or proposing to enter into any contract, license or agreement with an Affiliate, which contract, regardless of the City's approval thereof, shall be at terms and for prices not greater than those customarily charged by such -5- Affiliate for comparable goods and services elsewhere and which are competitive within the industry. (iii) Consistent with Exhibit E hereto, except for the procurement of goods and services in an amount of $1,000 or less, documentation shall be submitted in a timely manner to the City Contract Administrator evidencing the competitive nature of all goods or services obtained by Manager in its capacity as manager of the Facility and the basis for the selection of such goods and services. Prior to procuring any such services, Manager shall coordinate with the City to determine if the City already has an established vendor(s) that can provide any or all of the above referenced services at a favorable cost. (iv) Unless the City agrees in advance to waive any or all of the following, any such license, agreement, commitment or contract (A) shall provide that any payment due thereunder shall be contingent upon the City Council's annual appropriation of funds for such purposes, (B) shall contain no agreement or other provision by which the City, as assignee or otherwise, would be obligated to indemnify any party thereto or any of such party's agents, servants and employees and (C) shall contain no agreement or other provision by which the City, as assignee or otherwise, would be obligated to pay the legal fees of any party thereto or any of such party's agents, servants and employees. (c) Require that all users of the Facility execute rental/user agreements in accordance with the requirements of Article XIII hereof. (d) Maintain the Facility and all fixtures, equipment, systems and materials located therein in the condition received by Manager, normal wear and tear excepted. At all times, equipment maintenance shall meet or exceed manufacturer's recommendations therefor. Manager shall provide the City Contract Administrator with an annual preventative maintenance schedule for the Facility. In addition, Manager shall provide the City Contract Administrator with a report on the last day of each quarter detailing all Facility maintenance that was performed during the preceding quarter. This report shall include a list of breakdowns of all major pieces of installed and portable equipment during such quarter. Manager shall provide the City with access to the Facility without notice for routine maintenance inspections. (e) Schedule Events at the Facility in accordance with the priority booking policy set forth in the Operations Manual. (f) Provide the City Contract Administrator with a "flash" report within five (5) days - or if the same cannot be completed within such five (5) day period, then as soon as practical thereafter but in no event to exceed fifteen (15) days - following the conclusion of an event at the Facility. (g) Provide day-to-day administrative services in support of its management activities pursuant to the Approved Budget and the Annual Plan described herein, including, but not limited to, the acquisition of services, equipment, supplies and facilities; internal budgeting and accounting; maintenance and property management; personnel management; record-keeping; collections and billing; and similar services. INS (h) Employ, supervise and direct all of its employees and personnel consistent with the provisions of this Agreement. (i) Maintain detailed, accurate and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles. The City Contract Administrator and other representatives of the City shall have access to such records at all times. In furtherance of the services to be provided hereunder, Manager may use computer software programs that it also licenses for use at various facilities other than the Facility, which in such event shall remain the sole property of Manager. 0) Promptly notify the City Contract Administrator of any injuries, property damage, claims, losses or damages relating to the Facility or the use thereof. Manager shall also promptly inform the City Contract Administrator of the necessity of, and assist the City Attorney with, instituting legal actions or proceedings to collect charges, rentals or other income due to the City, or to cancel, terminate or sue for damages under any license, use or concession agreement for the breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire of the City. (k) Submit a written report to the City Contract Administrator on at least a monthly basis, or as otherwise voluntarily agreed to between the parties, no later than the close of the following month concerning its activities in the operation, management and supervision of the Facility and the administrative services performed by Manager in conjunction therewith. Such report shall, among other things, set forth bookings, receipts from all sources, expenditures, and such other and further information as the City may require or request. (1) Prepare a proposed annual operating budget for the Facility, as detailed in Section 6.2 hereof, in accordance with the City's approved format, and submit such budget to the City upon a schedule determined by the City Manager or his designee. (m) Comply with the spending limitations imposed in the Approved Budget, including any amendment(s) thereto as authorized, subject to Section 6.6. However, if extraordinary events occur which could not reasonably be contemplated at the time the Approved Budget was prepared, Manager may submit an amendment to the Approved Budget to the City for review and approval or denial. (n) Pay, when due, all Operating Expenses for the Facility from accounts established under this Agreement. (o) Deposit and hold in trust in the applicable subaccount of the Event Operating Account or such other interest-bearing account in a local qualified public depository as the City shall direct, any ticket sale revenues which it receives in the contemplation of or arising from an event pending the completion of the event, as more fully provided in Section 7.4 hereof and in the Operations Manual. Notwithstanding any other provision of this Agreement, except as provided in the Service and Usage Agreement dated _, 2007, between Manager and Patron Solutions, L.P., d/b/a New Era Tickets ("New Era Tickets") or with respect to ticket sales by any Resident Company (which the parties hereto agree may sell directly season and single event tickets to their events). Manager shall not contract to a third -party any of its -7- duties or responsibilities in connection with the receipt of ticket sales revenues for any such events. (p) Establish and maintain an ongoing relationship with the City and its committees and departments, the Virginia Beach Performing Arts Center Foundation, the Virginia Beach Performing Arts Center Advisory Committee, and any other organization as designated by the City, including attendance and participation of all scheduled meetings of the Foundation. (q) Require that the General Manager or his/her designee attend all scheduled meetings of the City regarding the Facility. (r) Conduct staff planning, retention and training. (s) Assist the City, if requested, with the supervision and maintenance of risk management and Facility insurance functions. (t) Supervise box office, parking, concession, catering, food service, novelty, and other related services and administer related contracts. If mutually agreed by the parties, Manager may provide food and beverage service directly or through an Affiliate. (u) Maintain and update the website, which shall include information provided by the Virginia Beach Performing Arts Center Foundation regarding the Foundation, how to make donations to the Virginia Beach Performing Arts Center Foundation, and information on the Center Stage Capital Campaign. (v) Propose and undertake such sales, marketing, promotional and advertising efforts for the Facility as are budgeted and necessary to ensure that Operating Revenues generated from the use of the Facility are maximized and that broad community support for the Facility is cultivated. (w) Cause such other acts to be undertaken and completed with respect to the Facility consistent with the foregoing obligations, as mutually determined to be necessary for the management and operation of the Facility. Section 2.3. The parties' agreement with respect to technology services is set forth in Exhibit A. ARTICLE III COMPENSATION As total compensation to Manager for its services hereunder, the City shall pay to Manager a fee composed of a Fixed Fee, and an Incentive Fee as follows: Section 3.1. Fixed Fee. The City shall pay Manager a fixed fee (the "Fixed Fee") of $16,000.00 per month for each month during the initial Operating Year hereunder, with such monthly fee being adjusted for each Operating Year thereafter by applying the Consumer Price Index for each such Operating Year. On or before the last day of each month, Manager will submit to the City an invoice for the Fixed Fee due for the following month, and the City will pay Manager such amount within ten (10) days following the end of the preceding month. Section 3.2. Incentive Fee. The City shall pay Manager an incentive fee ("Incentive Fee") with respect to each Operating Year hereunder in an amount equal to the sum of (a) the amount calculated as the sum of twelve percent (12%) of the following Operating Revenues: • Rental income - theater and rehearsal studio in excess of $250,000; • Net food and beverage sales income in excess of $100,000; • Net valet parking revenue; • Manager's mark-ups on expenses reimbursed by users/promoters; and • Box office rebate revenue • Advertising sales and sponsorship income in excess of $100,000. The Incentive Fee shall in no event during any Operating Year exceed 100% of the Fixed Fee payable pursuant to Section 3.1 hereof for any such Operating Year. Manager's right to receive payment of the Incentive Fee, or any portion thereof, shall be subject to Manager achieving in each such Operating Year the aggregate budgeted revenue from the Operating Revenue categories on which the Incentive Fee is calculated. The Incentive Fee determined to be payable hereunder shall be payable to Manager at the end of each Operating Year within thirty (30) days of the City's receipt from Manager of an invoice for the Incentive Fee. Promptly following the availability of the audited financial statements described in Article XIII for a Fiscal Year, Manager shall recalculate the Incentive Fee payable hereunder based on the audited financial statements and, in the event the Incentive Fee paid pursuant to this Section based on Manager's invoice differs from such recalculated amount, then within thirty (30) days of such recalculation Manager shall remit to the City any excess amount that was paid to Manager, or the City shall pay to Manager the shortfall, as the case may be. ARTICLE IV TERM; TERMINATION Section 4.1. Term. (a) The term of this Agreement shall consist of the Current Term and the Subsequent Extension Term(s), if any. (b) Unless sooner terminated or extended pursuant to the provisions hereof, the term of this Agreement shall expire on the last day of the Current Term, October 31, 2010. (c) The term of this Agreement may be extended by the City at the expiration of the Current Term for up to two (2) additional one (1) year extension periods (each a "Subsequent Extension Term"). (d) In order to extend the Current Term or any Subsequent Extension Term(s) hereunder, the City shall provide Manager with no less than three (3) months written notice of its in intention to so extend the term of this Agreement. In the event Manager does not wish to accept the proffered extension for the Subsequent Extension Term(s), Manager shall notify the City of such determination in writing within ten (10) days after receipt of such written notice from the City, whereupon this Agreement shall terminate at the conclusion of the then -current term hereof. The compensation to be received by Manager during any Subsequent Extension Term(s) hereunder shall be the same as set forth herein for the Current Term (subject to continuing the annual CPI increases of the Fixed Fee as set forth in Section 3.1 hereof) unless otherwise agreed in writing by Manager and the City. Section 4.2. Termination. (a) This Agreement may be terminated (i) by either party upon thirty (30) days written notice, if the other party fails to perform or comply with any of the material terms, covenants, agreements or conditions hereof, and such failure is not cured during such thirty (30) day notification period, or (ii) by the City immediately by written notice upon Manager being adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of Manager shall be appointed and shall not be discharged within ninety (90) days after appointment, or if Manager shall make an assignment of its property for the benefit of creditors or shall file a voluntary petition in bankruptcy or insolvency, or shall apply for bankruptcy under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State or otherwise, or if such petition shall be filed against Manager and shall not be dismissed within ninety (90) days after such filing. (b) In the event this Agreement expires or is terminated prior to the end of the Operating Term, unless otherwise prohibited by the terms of this Agreement, the City shall promptly pay Manager all fees due Manager up to the date of termination or expiration, computed on a pro -rata basis (if applicable), and reimbursement of all expenses incurred by Manager up to the date of termination, in accordance with the terms hereof. (c) Upon termination or expiration of this Agreement for any reason, Manager (1) shall promptly discontinue the performance of all services hereunder and (2) Manager shall assign to the City (which shall accept and assume, or cause the successor manager of the Facility to accept and assume, responsibility to perform under) all contracts and agreements relating to the operation of the Facility properly entered into by Manager as permitted by the terms of this Agreement (including, without limitation, the terms of Section 2.2(b)(i) through (iv) hereof), except software licenses that are not assignable. (d) The remedies described in this Section 4.2 shall be in addition to any other remedies the parties may be entitled to, either by virtue of the terms of this Agreement, at law or in equity, as a result of a breach or termination of this Agreement. ARTICLE V OWNERSHIP Section 5.1. The City will retain the ownership of the Facility at all times during the Operating Term hereof, including, but not limited to, real estate, improvements, technical and office equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible -10- property. The City shall own all data and other electronic files generated by Manager in operating the Facility through the use of either the City's or Manager's data processing programs and software. Section 5.2. Manager may not take or use, for its own purposes, customer or exhibitor lists or similar materials developed by the City unless prior written consent thereto is granted by the City. Section 5.3. The City Contract Administrator and his/her designees shall have the right, without advance notice to Manager and at all appropriate times, to enter all portions of the Facility to inspect the same; to observe the performance of Manager of its obligations hereunder; to install, remove, adjust, repair, replace or otherwise handle any equipment, utility lines, or other matters in, on, or about the Facility; or to do any act or thing which the City may be obligated or have the right to do hereunder or otherwise. Nothing contained in this Section is intended or shall be construed to limit any other rights of the City hereunder. The City shall not unreasonably interfere with the activities of Manager hereunder, and the City's actions shall be conducted such that disruption of Manager's work shall be kept to a minimum. Nothing contained in this Section shall impose or be construed to impose upon the City any independent obligation to construct, maintain or make repairs, replacements, alterations, additions or improvements to the Facility or any of the equipment, fixtures, furnishings or materials located therein or create any independent liability for any failure to do so. Section 5.4. The ownership of and title to all intellectual property rights of whatsoever value held in the name of any of the parties hereto shall remain the sole property of such party. The ownership of consumable assets (such as office supplies and cleaning materials) purchased with Operating Revenues or other City funds shall remain with the City, but such assets may be utilized and consumed by Manager in the performance of services under this Agreement. The ownership of equipment, furnishings, materials, or fixtures not considered to be real property and other personal property purchased by Manager with Operating Revenues or other City funds for use at and for the Facility shall vest in the City automatically and immediately upon purchase or acquisition. The assets of the City as described herein shall not be pledged, liened, encumbered or otherwise alienated or assigned other than in the ordinary course of business of the Facility without the prior approval of the City. Manager shall promptly notify the City of any losses in inventory of City -owned equipment. ARTICLE VI ANNUAL PLAN AND OPERATING BUDGET Section 6.1. Manager shall provide to the City, (i) on or before September 1, 2007, in the case of the initial Operating Year that begins November 1, 2007, and (ii) except as otherwise provided herein, on or before November 1 of each Operating Year thereafter, an annual management plan (the "Annual Plan") for the next Operating Year. The Annual Plan shall include the following components: (a) Marketing Plan - Manager shall provide the City with an update of Manager's marketing plans for the Facility, which update shall contain, but shall not be limited to, the following elements: -11- (i) Market research; (ii) Market position; (iii) Marketing objectives; (iv) Marketing strategies; (v) Booking priorities; (vi) Targeted events - local, regional, national and international; (vii) Event management and marketing as well as corporate sponsorships; (viii) Event marketing; (ix) Internal and external support staff; (x) Advertising opportunities at local, regional and national level; and (xi) Attendance at various trade shows, conventions and seminars. In connection with the Manager's marketing of the Facility, the Manager shall also perform the following services: . A. Notify the City of events to be booked in the Facility, which bookings shall be made subject to the terms of this Agreement and the booking schedule attached hereto, targeting national, Virginia, Hampton Roads and Virginia Beach markets. B. Develop materials necessary to support the marketing plan, including, but not limited to, videos, virtual tours, direct mailers, Facility newsletters, and promotional and advertising items and/or gifts. C. Develop, with input from community leaders, prime tenant(s), the Convention and Visitors Bureau of various cities in the Hampton Roads area, the City's Office of Special Events, the Department of Museums and Cultural Arts, and other appropriate internal City departments, and submit to the City pre -opening and operational sales, marketing, public relations, advertising, promotion, and event booking strategies and plans aimed at maximizing revenues from the Facility. D. ' Identify, in coordination with the City, potential advertisers, sponsors, equity partners and event producers. Develop, in consultation with the City, sponsorship values for Facility naming opportunities. E. Maintain ongoing community relations and exposure to industry via media releases, speakers bureau, paid advertising and direct mail. Develop membership and group sales databases. F. Plan, promote and execute, in conjunction with the City, Grand Opening events to maximize market impact and community relations, as outlined in the RFP Response. G. Maintain booking calendar, schedule and contract events. Schedule and promote special events to round out programming. -12- (b) Annual Operating Budget - Manager agrees that by November 1 of each Operating Year, it will prepare and present to the City a summary of the annual operating budget described herein for the next Operating Year. Thereafter, by February 1 of each Operating Year, Manager agrees that it will prepare and present a line -item annual operating budget for the operation, management, promotion and maintenance of the Facility during the next Operating Year in compliance with such procedures, and containing such items, as required by this Agreement. Said budget shall include, at a minimum, a projected income and expense statement compared to the Approved Budget for the immediately preceding Operating Year, with an explanation of variances. The annual budget shall also include a list of anticipated events at the Facility and anticipated advertising and promotional activities. (c) List and Budget for Recommended Capital Expenditures. (d) Preventative Maintenance Plan. (e) Operations Manual - Manager shall conduct an annual review of the Operations Manual and, to the extent it deems necessary, make recommendations for modifications thereto. Similarly, the City shall review the Operations Manual prior to the beginning of each Operating Year hereunder and shall be entitled to request amendments thereto, which amendments shall be incorporated therein by Manager. Any such amendments to the Operations Manual resulting in additional operating costs shall be reflected in an amendment to the Annual Operating Budget. The Operations Manual, and any amendments thereto, shall be deemed a part of this Agreement and shall be incorporated herein by this reference. (f) In addition to the foregoing, the Annual Plan shall be supplemented with the Manager's projections of the Operating Budget and Capital Expenditures required for the period of the remaining Operating Years assuming the term of this Agreement is extended to include all Subsequent Extension Terms contemplated by Section 4.1(c). The City acknowledges that such projections will be provided in good faith, will constitute estimates only and shall be subject to change. Section 6.2. The Annual Plan shall be subject to review, revision and approval by the City. Within thirty (30) days of its receipt of the Annual Plan, the City shall notify Manager of any changes to such Annual Plan, including, without limitation, the proposed annual operating budget. Manager shall have twenty (20) days within which to incorporate the City's suggested revisions into the Annual Plan, to discuss the same with the City Contract Administrator and to submit the Annual Plan, as revised, to the City for final approval. Upon final approval by the City of the Annual Plan, as revised (which approval shall not be unreasonably withheld), the same shall constitute the operating program for Manager for the next Operating Year and the annual operating budget approved in connection therewith shall be the "Approved Budget" for the next Operating Year. Section 6.3. Manager may submit to the City at any time prior to the close of an Operating Year a supplemental or revised annual operating budget for such Operating Year. Upon the approval by the City Manager or City Council, as the case may be under City policies for budget amendment authorization, of such supplemental or revised annual operating budget, the Approved Budget for such Operating Year shall be deemed amended to incorporate such -13- supplemental or revised annual operating budget. The Approved Budget may only be amended in the manner set forth in the two preceding sentences or Section 6.4. Section 6.4. In the event that it appears reasonably likely, in any Operating Year hereunder, that the actual net operating loss/profit for such Operating Year will be larger, in the case of a net operating loss, or smaller, in the case of a net operating profit, than projected in the Approved Budget for such Operating Year, the City may request from Manager a plan for reduction of Operating Expenses to a level consistent with the budgeted net operating loss/profit amount. Manager shall forthwith comply with any such expense reduction requested by the City, and the Approved Budget for such Operating Year shall be modified accordingly. Section 6.5. Manager shall ensure that its representatives are present at all City meetings where budgets for the Facility are to be discussed. Section 6.6. Manager, in its reasonable discretion and in furtherance of its obligations under this Agreement, may reallocate funds among the Operating Expense line -item category amounts set forth in the Approved Budget (and subsequently expend such amounts on Operating Expenses hereunder) in an aggregate amount not to exceed $100,000 without the prior approval of the City provided that in so doing, Manager informs the City Contract Administrator of such changes and does not cause the actual net operating loss for the then -current Operating Year to exceed the amount projected in the Approved Budget for such Operating Year. Where Manager determines, or is informed in writing by the City, that the actual net operating loss for the then - current Operating Year appears reasonably likely to exceed the amount projected in the Approved Budget for such Operating Year, Manager shall not exceed, commit or contract to expend any sums in excess of the original Operating Expense line -item category amounts set forth in the Approved Budget without the prior written approval of the City Contract Administrator. In the event Manager incurs expenditures or commits to expend sums in excess of amounts permitted by the terms of this Agreement without the prior written approval of the City, Manager agrees that it shall be liable for any such expenditure and further agrees that the City shall have no liability with respect thereto. ARTICLE VII PROCEDURE FOR HANDLING INCOME Section 7.1. Subject to Section 7.2 and Article XVIII hereof, following the establishment of the Approved Budget for an Operating Year, the City shall make available to Manager all funds necessary to pay all Operating Expenses incurred or accrued in such Operating Year within the Approved Budget. To the extent that Operating Revenues during a calendar quarter period are insufficient, or expected to be insufficient, to cover Operating Expenses (a "Cash Flow Shortfall") for such period, the City shall advance funds to Manager as follows: thirty (30) days prior to the beginning of each quarter of the fiscal year during the Operating Year, Manager will submit to the City an invoice for the projected Cash Flow Shortfall for such quarter and the City will transfer such funds to Manager within five (5) days after the start of such fiscal year quarter. Such funds shall be deposited by Manager in the Facility Operating Account(s) and shall be used by Manager solely for the payment of Operating Expenses hereunder. -14- Section 7.2. The City shall have no obligation to provide funds for the payment of Operating Expenses incurred or committed for by Manager after the date Manager receives written notice (an "Appropriation Deficiency Notice") from the City of the fact that insufficient funds or no funds have been appropriated for the Facility. Such Appropriation Deficiency Notice shall specify the date on which funds for the Facility will be exhausted and an order of priorities for expenditure of the remaining City funds. Section 7.3. Upon delivery of the Appropriation Deficiency Notice, the City shall pay all Operating Expenses incurred or committed for by Manager prior to the date Manager received such Appropriation Deficiency Notice. Any failure by the City to provide funds (beyond the aggregate level of appropriated funds) for the payment of Operating Expenses incurred or committed for by Manager after Manager receives such Appropriations Deficiency Notice shall not constitute a breach of or default by the City under this Agreement. Any failure by Manager to perform its obligations under this Agreement shall not be a breach of or default under this Agreement if such breach or default results from the City's failure to appropriate sufficient funds for the management, operation and promotion of the Facility. Section 7.4. Ticket sale revenues and similar event -related revenues that Manager receives in contemplation of or arising from an event to be held at the Facility shall be deposited by Manager as soon as practicable upon receipt (but in any event within three (3) business days of receipt by Manager) into the Event Operating Account or such other interest-bearing account in a local qualified public depository as the City shall direct pending the completion of such event, with ticket sales revenues and similar event -related revenues attributable to Resident Company events being deposited in the Resident Company Subaccount and all other ticket sales revenues and similar event -related revenues being deposited to the Non -Resident Company Subaccount. Such moneys will be held in trust for the protection of ticket purchasers, the City and Manager, and to provide a source of funds for payments to performers and promoters and for payment of expenses in connection with the presentation of such events. Following satisfactory completion of the event, Manager shall make a deposit into the Facility Operating Account of the amount in such Event Operating Account (and each subaccount therein) and shall provide the City with a draft event "flash" report within five (5) business days and a final event "flash" report within thirty (30) days. Interest earned on amounts deposited in the Event Operating Account shall be considered Operating Revenues. Bank service charges, if any, on such account shall be considered an Operating Expense. In the event that the Non -Resident Company Subaccount does not contain sufficient funds to reimburse ticket purchasers for events (other than Resident Company events) that are cancelled or otherwise not held or completed and for which such ticket purchasers are entitled by law to a refund, Manager shall be responsible for any such reimbursement to ticket purchasers who purchased tickets from Manager or New Era Tickets, the entities authorized under this Agreement to handle such ticket sales, and the City shall have no liability in respect thereof. Manager shall have no liability for reimbursement to ticket purchasers of Resident Company events. Section 7.5. Except as otherwise provided in this Agreement, including, without limitation, Section 7.4 hereof, all Operating Revenues collected by Manager from the operation of the Facility shall be deposited into the Facility Operating Account as soon as practicable upon receipt (but in any event within three (3) business days of receipt by Manager). Except as otherwise provided in this Agreement, including, without limitation, Section 7.4 hereof, Manager -15- shall use funds in the Facility Operating Account to pay for Operating Expenses hereunder. All Operating Revenues and other revenues collected by Manager arising from operation of the Facility, including revenues from Facility or equipment rentals, utility rental agreements, food and beverage concessions, or any other source, are the sole property of the City and shall be held in trust by Manager for the City for application as provided herein. On the first (1St) business day of each calendar quarter or at such other time as may be provided in the Operations Manual, uncommitted amounts in the Facility Operating Account in excess of the budgeted amount of Operating Expenses, as set forth in the Approved Budget, for such fiscal year quarter may be applied by the City in such manner as the City may determine in its sole discretion, including but not limited to, retained in the Facility Operating Account for the payment of future Operating Expenses or transferred by the City to any other fund or account. Section 7.6. Each of the Facility Operating Account(s), the Event Operating Account(s) and any other account established hereunder or pursuant to the Operations Manual shall be opened by Manager, in its own name and federal identification number. Manager shall designate no more than four (4) employees of Manager to be authorized signatories on the accounts. In addition, such accounts shall permit two authorized City signatories. Any amounts remaining in such accounts upon the expiration or earlier termination of this Agreement for any reason, after payment of all outstanding Operating Expenses, shall be promptly paid by Manager to the City. Upon the expiration or earlier termination hereof, Manager shall remove Manager's designated signatories from all such accounts. Similarly, upon the termination of employment of any of Manager's designated signatories, Manager shall notify the City Contract Administrator thereof and shall remove such designated signatory from all such accounts. Section 7.7. In addition to the reports specified in Section 8.2 hereof, within sixty (60) days after the end of each Operating Year hereunder, Manager will provide the City with a complete unaudited financial statement for each account, which accounts shall be subject to audit by the City at any time. Section 7.8. It is the intent of this Agreement that cash control for Facility operations shall be accomplished through a combination of rigid accounting procedures and internal audit tests and an annual audit by an independent public accounting firm approved by the City. As more fully provided in this Agreement and in the Operations Manual, separate bank accounts shall be utilized for Operating Revenues and box office receipts. Payrolls shall be processed through the Facility Operating Account, reconciled monthly and tested via internal control procedures. Each event shall be accounted for using an event accounting system, with budgets and final reports prepared for each event as provided in the Operations Manual, and Operating Expenses for each event shall be coded for accurate accumulation to ensure all applicable costs shall be paid by the users of the Facility. Advance deposits covering rentals and estimated costs shall be required as provided in the Operations Manual to minimize collection programs. When deemed necessary by Manager, credit references shall be checked on clients when deposits are not being collected to cover rental costs and ancillary expenses for the event. gGol ARTICLE VIII FISCAL RESPONSIBILITY Section 8.1. Manager agrees to keep and maintain during the Operating Term hereunder, separate and independent records, in accordance with generally accepted accounting principles, devoted exclusively to its activities at the Facility. Said books, ledgers, journals, accounts, and records shall contain all entries reflecting the activities of Manager under this Agreement and shall be maintained in Manager's office in the Facility during the Operating Term. Upon expiration or earlier termination of this Agreement, Manager shall deliver to the City copies of all such books and records. All of the foregoing records shall be open for examination and audit by the City Contract Administrator and other City designated and authorized agents or personnel during Manager's ordinary business hours on demand and without the provision of advance notice, provided the City shall schedule such audits so as to minimize any interruption to Manager's operations. Manager shall keep and preserve for at least three (3) years following each Operating Year all sales slips, rental agreements, purchase orders, sales books, credit card invoices, bank books or duplicate deposit slips, and other evidence of Operating Revenues and Operating Expenses for such Operating Year, provided that Manager shall have no obligation to maintain such materials following the end of the Operating Term in the event Manager delivers all such materials to the City upon expiration or earlier termination hereof. Section 8.2. Manager agrees to render, within thirty (30) days after the end of each month during the Operating Term hereof, financial reports for the Facility including a balance sheet, an aging report on accounts receivable, and a statement of revenues and expenditures (budget to actual) for the current month and year to date in accordance with generally accepted accounting principles. In addition, Manager will provide separate cash receipts and disbursements reports for each event held at the Facility during such month. In addition, Manager will immediately upon request by the City, the City Contract Administrator or his/her designee provide information on the Facility Operating Account(s) and the Event Operating Account(s). Section 8.3. Manager agrees to meet with the City Contract Administrator and other City designated and authorized agents or personnel on request to answer questions relating to the operation of the Facility and the financial reports submitted by Manager in relation thereto. In addition, Manager agrees within ninety (90) days following the end of each Operating Year hereunder to provide to the City a balance sheet, a statement of profit or loss and a statement of cash flows for the Facility for the preceding Operating Year, prepared in accordance with generally accepted accounting principles and accompanied by an independent auditor's report prepared by a nationally recognized, independent certified public accountant that has been approved in advance by the City. The audit shall contain an opinion expressed by the independent auditor of the accuracy of the financial records kept by Manager. The audit shall also provide a certification of Operating Revenues and Operating Expenses for such Operating Year. Notwithstanding anything to the contrary contained herein, the costs of such audit shall be deemed an Operating Expense hereunder. A letter from such accounting firm expressing its opinion as to the effectiveness of internal controls and a management letter will accompany the audit report. -17- Section 8.4. Manager agrees to use forms, accounting methods, internal controls and procedures for its reports that are acceptable to the City and in particular report in conformance with the chart of accounts attached hereto as Exhibit B. The City hereby agrees that the forms generated by Manager's use of MAS 200 are acceptable. Section 8.5. The City, the City Contract Administrator and other City designated and authorized agents or personnel may request additional financial or statistical reports with respect to the Facility, and Manager shall promptly provide such reports to the City. It is agreed that such requests by the City will be reasonable with respect to timing and frequency and shall not require Manager to incur additional out-of-pocket expense. Section 8.6. The parties shall together, one time during each Operating Year, conduct an inventory of equipment and fixed assets of the Facility. Section 8.7. Any data, equipment or materials furnished by the City to Manager and any such data, equipment or materials that may be acquired by Manager from Operating Revenues or other City funds to be used at the Facility shall remain the property of the City, and when no longer needed for the performance of this Agreement, shall be returned to the City. Section 8.8. All Manager employees handling moneys or designated as authorized signatories on any Facility accounts shall be sufficiently covered, as an Operating Expense hereunder, by crime insurance, to protect Manager's and the City's interests. Such crime insurance shall be in the amounts set forth in Exhibit B attached hereto and shall name the City as loss payee as its interest may appear. Section 8.9. Operating Revenues for the Facility shall be defined to include, but shall not be limited to, the following: • Rental Income; • Equipment Rental fees; • Manager's mark-ups on expenses reimbursed by users/promoters; • Lease income; • Commission revenue; • Interest/Miscellaneous Operating income; • Net Valet Parking Revenue; • Advertising sales and Sponsorship income; • Food and Beverage sales income; • Merchandise sales income; and • Box Office Rebate revenue. Operating Revenues shall not include any of the following: • applicable excise, sales, occupancy and use taxes, or similar government taxes, duties, levies or charges collected directly from patrons or guests, or as a part of the sales price of any goods, services, or displays, such as gross receipts, admission, cabaret, or similar or equivalent taxes; • any gratuities collected (or to be collected) for the benefit of and paid to any of Manager's personnel, unless such gratuities are collected as part of a service charge; • Event ticket proceeds collected (or to be collected) for the benefit of and actually paid to a third party event promoter (i.e., promoter proceeds); • rent paid by the City for office space and use of parking spaces in the Facility; and • moneys collected from the sale of naming rights and other corporate sponsorship opportunities for the Facility where Manager or its contractor has not participated in the sale of such items. Section 8.10. Operating Expenses shall be defined as all expenses incurred by Manager in connection with its operation, management and promotion of the Facility, and shall include, but shall not be limited to, the following: • Payroll, benefits, bonuses and related costs; • Operating supplies; • Advertising, marketing and promotion costs; • Cleaning; • Data processing; • Printing and stationary costs; • Dues, subscriptions and memberships; • Postage and freight costs; • Equipment and rental costs; • Minor repairs and maintenance, not inclusive of Capital Expenditures; • Security expenses; • Travel and Entertainment; • Cost of office supplies; • Telephone charges; • Cost of employee uniforms; • Exterminator and trash removal costs; • Parking expenses; • Utility expenses; • Audit; • Insurance costs; • Taxes; and • Commissions to third parties. Section 8.11. Travel expenses of Manager's employees shall be paid as Operating Expenses hereunder when included in the Approved Budget. Such expenses shall be prorated if Manager's employees conduct business on behalf of Manager or other facilities. All non - budgeted travel expenses shall be paid as Operating Expenses hereunder only to the extent that it appears reasonably likely at the time such expense is incurred that the actual net operating loss for the then -current Operating Year will be smaller than the amount projected in the Approved Budget for such Operating Year•, otherwise, such non -budgeted travel expenses shall be paid as Operating Expenses hereunder only with the prior written consent of the City Contract Administrator. -19- Section 8.12. Unless included in the Approved Budget, relocation expenses of Manager's employees shall not be considered Operating Expenses hereunder without the prior written approval of the City Contract Administrator. Section 8.13. Reasonable and actual legal expenses incurred by Manager in connection with required collection efforts or other matters directly related to Facility operations shall be considered Operating Expenses hereunder, provided Manager shall confer with the City Contract Administrator and the City Attorney prior to incurring any such expenses. In no event, however, shall legal expenses incurred by Manager in proceedings instituted by Manager against the City be considered an Operating Expense hereunder. ARTICLE IX CAPITAL IMPROVEMENTS Section 9.1. The City will retain the responsibility for making Capital Expenditures for the Facility; however, the City shall be under no obligation to make any Capital Expenditures during the Operating Term hereof. Manager agrees to provide to the City, in accordance with and as part of the Annual Plan, Manager's recommendation for Capital Expenditures to be accomplished during the next Operating Year and shall be accompanied by an estimate of the cost of all such items and projects and a request that the City budget funds therefor. The City shall retain the discretion to determine whether, and to what level, to fund Capital Expenditures to the Facility. All routine and minor repairs, maintenance, preventative maintenance, and equipment servicing shall be the responsibility of Manager as Operating Expenses. Section 9.2. Except for expenditures properly made in accordance with Section 9.4 hereof, Manager shall obtain prior approval from the City Contract Administrator for necessary repairs that are made to the Facility, the cost of which exceeds Two Thousand Five Hundred Dollars ($2,500.00). Manager shall cause all necessary minor repairs and improvements to be made to the Facility using moneys available in the Approved Budget. Section 9.3. Manager shall be responsible for ensuring that all repairs, replacements, and maintenance activities shall be of a quality and class at least equal to the original work. Any replacement of an item contained on the inventory schedule attached hereto as Exhibit C or any new item added to such inventory schedule shall be deemed the sole and exclusive property of the City. Section 9.4. Manager shall have the right to take such actions as it deems necessary, without the consent of the City, in situations where Manager determines there is an emergency with respect to the safety, welfare and protection of the general public, which actions shall include spending and committing funds held in the Facility Operating Account, even if such expenses are not budgeted as part of the Annual Budget. Immediately following such action, Manager shall inform the City Contract Administrator of the situation and the action(s) taken, and the City shall pay into the Facility Operating Account the amount of funds, if any, spent or committed by Manager pursuant to this Section in excess of budgeted amounts therefor. -20- Section 9.5. The parties agree that in the event Manager requests a capital improvement, the City will give reasonable consideration to such request(s) in formulating its budget in light of competing financial considerations. ARTICLE X [RESERVED] ARTICLE XI PERSONNEL Section 11.1. Generally. (a) Except as provided in Section 11.1(b), all personnel operating at the Facility shall be engaged or hired by Manager (or an Affiliate, agent or contractor of Manager), and shall be employees, agents or independent contractors of Manager (or an Affiliate, agent or contractor of Manager), and not of the City. As outlined in the RFP Response, Manager shall select the number, function, qualifications, and compensation, including salary and benefits, of its employees and shall control the terms and conditions of employment relating to such employees. The City specifically agrees that Manager shall be entitled to pay its employees, as an Operating Expense, compensation in accordance with Manager's then current employee manual, which may be modified by Manager from time to time in its sole discretion. A copy of Manager's current employee manual shall be provided to the City upon request. Manager agrees to use reasonable and prudent judgment in the selection and supervision of such personnel, including the use of background (including, without limitation, criminal background) and reference checks, as applicable. Manager shall comply with all applicable laws including, without limitation, the immigration laws of the United States in its selection and hiring practices. Except as provided in Sections 11.2 or 11.3, City shall have no right to supervise or direct the hiring or firing of any such personnel but, in the event that the City notifies Manager that it desires the removal from the Facility of any Manager employee and sets forth in such notice the specific reasons for such request, Manager agrees to meet with representatives of the City to discuss the matter. Any decision to remove the individual shall be made by Manager, but in making such decision Manager agrees to act reasonably and take into account the views expressed by the City. Due to the direct contact with the public, Manager shall not employ or assign employees at the Facility who are known by Manager to have been convicted of a felony or a misdemeanor deemed to be a crime against persons under the Virginia Code, or who have been convicted of any sexual molestation charge against children. Further, any employee who is charged with any of such offenses, pending adjudication of such charges, shall not be permitted in the Facility. (b) Any City personnel working out of the Facility including, without limitation, the City Contract Administrator, shall remain employees, agents, or independent contractors of the City in all respects, and not of Manager. Such employees shall not be involved in the day-to-day management or operation services for which Manager is being engaged to perform hereunder, but may oversee Manager's duties hereunder on behalf of the City. The City shall consider, at the request of Manager, the removal of any such personnel who fail to comply with Manager's rules and regulations. -21- (c) In the event Manager utilizes the services of volunteer workers at the Facility, Manager agrees to apply the same selection and hiring practices to such volunteer workers as it applies to paid employees, all as more further described in (a) above including, without limitation, compliance with all applicable labor and employment laws. Further, such volunteer workers shall be subject to the limitations and restrictions described in (a) above in respect of any criminal violations or charges. Section 11.2. General Manager. Personnel supplied by Manager will include an individual with managerial experience in similar facilities to serve as a full-time on-site general manager of the Facility ("General Manager"). Hiring of the General Manager by Manager shall require the prior approval of the City, which approval shall not be unreasonably withheld or delayed. The City hereby approves of Paul Lasakow as Manager's initial General Manager. The General Manager will have general supervisory responsibility for Manager and will be responsible for day-to-day operations of the Facility, supervision of Manager's employees, and management and coordination of all activities associated with events taking place at the Facility. In the event the current General Manager ceases to be employed by Manager at the Facility for any reason, Manager may, without the prior approval of the City, appoint an interim general manager, provided. that Manager shall use its best efforts to promptly appoint a permanent replacement (who shall be appointed with the City's prior approval, not to be unreasonably withheld or delayed). Section 11.3. Prohibition on Hiring. During the Operating Term hereof and for a period of one (1) year thereafter, neither party shall, without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), hire as an employee, consultant or other agent or contractor any senior management employee or agent of such other party with whom the City or Manager has had dealings with by virtue of the engagement of Manager hereunder. In the event of a breach of this Section 11.3 with respect to any such employee or agent of the parties, the breaching party shall pay the non -breaching party as liquidated damages an amount equal to one year's salary and benefits for such employee or agent. The parties agree that such amount is an estimate of the actual damages the non -breaching party will suffer as a result of a breach of this Section 11.3, and shall be deemed to constitute liquidated damages and not a penalty of any kind. For purposes of this paragraph, "senior management employees" of (1) Manager shall mean the General Manager and any department head employed by Manager at the Facility and (2) the City shall mean the City Contract Administrator, the Project Director and the Capital Campaign Coordinator. ARTICLE XII AGREEMENT MONITORING AND GENERAL MANAGER Section 12.1. City Contract Administrator. The City shall monitor Manager's compliance with the terms of this Agreement through the "City Contract Administrator," who shall be the City Manager or his/her designee, and at present is Emily Spruill (subject to change by written notice to Manager). Any and all references in this Agreement requiring City participation or approval shall mean the participation or approval of the City Contract Administrator. The City Contract Administrator shall be the liaison between Manager and the City on all matters relating to this Agreement, shall ensure that any information supplied by -22- Manager is properly distributed to the appropriate City departments, and shall be responsible for the monitoring and assessment of contract compliance by Manager. Section 12.2. Manner Re resentative. Manager shall monitor the parties' compliance with the terms of this Agreement through the "Manager Designee". Manager Designee at present is Doug Higgons (subject to change by written notice to the City). Such Manager Designee shall be the day-to-day liaison between the City and Manager on all matters relating to this Agreement. Section 12.3. Complaints. Complaints received by the City regarding the conduct or the manner of operation of the Facility or of Manager's employees, including, without limitation, the General Manager, shall be promptly addressed by Manager. ARTICLE XIII USER/RENTAL AGREEMENTS Section 13.1. Manager shall have the authority to execute user/rental agreements for the use of the Facility in materially the form approved by the City Contract Administrator and the City Attorney as the standard Facility occupancy agreement (the "Standard Facility Agreement"). Concurrently with its approval of the model Standard Facility Agreement, the City Contract Administrator shall be entitled to notify Manager of those material sections or provisions found therein that cannot be modified without the prior consent of the City Contract Administrator (collectively, the "Standard Provisions"), and any proposed Standard Facility Agreement that deviates from the Standard Provisions must be approved in advance by the City Contract Administrator. Manager acknowledges that the City Contract Administrator may consult with the City Attorney or other applicable City employees for the purpose of determining whether to approve any such changes to the Standard Provisions. Provided that none of the Standard Provisions are amended or modified, Manager may make changes in the Standard Facility Agreement on a case-by-case basis as it deems reasonable. The City Contract Administrator, upon request, shall be provided with copies of all Standard Facility Agreements. Manager shall charge such rates for use of the Facility as are established by Manager in accordance with the Operations Manual, and any deviation from such established rates shall be approved in advance by the City Contract Administrator. ARTICLE XIV INDEMNIFICATION Section 14.1. Indemnification by Manager. Manager agrees to indemnify and hold. harmless the City and its agents, servants and employees against any claims, causes of action, costs, expenses (including reasonable attorneys' fees), liabilities, or damages (collectively, "Losses") suffered by such parties, arising out of or in connection with any (a) negligent act or omission, or intentional misconduct, on the part of Manager or any of its employees or agents in the performance of its obligations under this Agreement or (b) breach by Manager of any of its representations, covenants or agreements made herein. Notwithstanding the foregoing, Manager shall have no duty to indemnify the City under this Section 14.1 for Losses that arise out of or are connected with (x) a negligent or intentional act on the part of the City or its agents, servants or employees, (y) a structural or building defect in the Facility or (z) any act or omission taken -23- by Manager (i) following mutual agreement by the City and Manager to any such act or omission or (ii) in those instances in which (A) first, Manager has delivered a prior written objection to the City's directive that Manager act or refrain from acting and (B) second, Manager has received written direction from the City to proceed following Manager's delivery of its written objection. The provisions of this Section 14.1 shall survive the expiration or earlier termination of this Agreement for a period of five (5) years. Section 14.2. Limitation on Manager's Liability. Manager shall have no liability, and shall not be responsible for, claims (or associated costs including, without limitations, attorney fees, court costs or damages assessed) under third party contracts entered into by Manager pursuant to this Agreement if such claims arise out of a failure by the City to fund expenses under such contracts for which the City has approved funding pursuant to the provisions of Section 2.2. ARTICLE XV INSURANCE; BONDS Section 15.1. Types and Amount of Coverage. Manager agrees to obtain insurance coverage in the manner and amounts as set forth in Exhibit C, attached hereto, and shall provide to the City promptly following the Effective Date a certificate or certificates of insurance evidencing such coverage. Manager shall maintain such referenced insurance coverage at all times during the Operating Term, and will not make any modification or change from these specifications without the prior approval of the City. Each insurance policy shall include a requirement that the insurer provide Manager and the City at least thirty (30) days written notice of cancellation or change in the terms and provisions of the applicable policy. The cost of all such insurance shall be an operating expense of the Facility, reimbursable to Manager by the City. Section 15.2. Ratiniz; Additional Insureds. All insurance policies shall be rated no less than A VIII in the most recent "Bests" insurance guide, shall be issued by insurance companies licensed in the Commonwealth of Virginia or as otherwise agreed by the parties, and shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. The commercial general liability policy, automobile liability insurance policy and umbrella or excess liability policy to be obtained by Manager hereunder shall name City as an additional insured. The workers compensation policy to be obtained by Manager hereunder shall contain a waiver of all rights of subrogation against the City. Manager shall require that all users of the Facility, including without limitation licensees, third party ushers and security personnel, and concessionaires, provide to Manager certificates of insurance evidencing insurance appropriate for the types of activities such user is engaged in. Upon request, Manager shall provide copies of such certificates to the City. If Manager subcontracts any of its obligations under this Agreement, Manager shall either: (a) cover all subcontractors under its policies of insurance, or (b) require each subcontractor not so covered to secure insurance that will protect against applicable hazards or risks of loss as and in the minimum amounts designated herein, and name Manager and the City as additional insureds. WX1 ARTICLE XVI COMPLIANCE WITH EQUAL OPPORTUNITY LAWS, REGULATIONS, RULES AND OTHER LAWS Section 16.1. During the performance of this Agreement, Manager agrees that it: (a) will not discriminate against any employee or applicant for employment because of race, religion, color, sex, disability, national origin, ancestry, physical handicap, age, or any other basis prohibited by the laws of the Commonwealth of Virginia relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of Manager. Manager agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. (b) will state in all solicitations or advertisements for employees placed by or on behalf of Manager, that it is an equal opportunity employer. Notices, advertisements and solicitations placed in accordance with Federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements hereof. (c) that it will provide a "drug-free workplace" for its employees and will state in all solicitations or advertisements for employees placed by or on behalf of Manager that it maintains a "drug-free workplace" being defined as a site for the performance of work where the employees are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the contract. (d) will post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the contractor's or subcontractor's workplace and specifying the actions that will be taken against employees for violations of such prohibition. Section 16.2. Manager shall include the provisions of Section 16.1 hereof in every subcontract or purchase order over $10,000, so that the provisions will be binding upon each such subcontractor or vendor. Section 16.3. Manager shall be required to provide the City with its Federal employer identification number. ARTICLE XVII PROHIBITION AGAINST CONTINGENT FEES Section 17.1. Manager warrants that it has not employed or retained any company or person, other than VAF or a bona fide employee working for Manager, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than VAF or a bona fide employee, any fee, commission, percentage, brokerage fee, gifts, or any other consideration (collectively, a "Contingent Fee") contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City may terminate this -25- Agreement without liability or may, in its discretion, otherwise recover the full amount of such Contingent Fee. Section 17.2. Manager warrants that it will not accept any Contingent Fee from any third party for the performance of any work under this Agreement except from artists, promoters or their respective representatives in accordance with industry custom and practice. ARTICLE XVIII FUNDING CONTINGENCY Notwithstanding anything contained herein to the contrary, the City's obligation to make payments to Manager hereunder shall be contingent upon the City Council's annual appropriation of funds for such purposes. The City contemplates that funding for the payments to Manager called for hereunder shall be obtained from Operating Revenues for the Facility. To the extent that Operating Revenues do not provide adequate funding for the payments to Manager called for hereunder, the City's obligations to make any payments due or otherwise payable hereunder shall be dependent upon City Council appropriating additional funds for such purpose. If such additional funding is not appropriated, the City will give prompt written notice thereof to the General Manager as provided in Section 7.2, which notice shall relieve the City from the obligation to make any further payments to Manager in accordance with the provisions of Sections 7.2 and 7.3. Upon its receipt of such written notice from the City, Manager shall have the right to terminate this Agreement immediately upon delivery of written notice thereof to the City, which termination shall be governed by the provisions set forth in Section 4.2 hereof. The City agrees that it will not withhold funding for the Facility solely in an effort to cause the termination of this Agreement. ARTICLE XIX PERMITS, LICENSES, TAXES AND LIENS Manager shall use reasonable efforts to procure any permits and licenses required for the business to be conducted by it hereunder. The City shall cooperate with Manager in applying for such permits and licenses. Manager shall deliver copies of all such permits and licenses to the City Contract Administrator. Manager shall pay promptly all taxes, excises, license fees and permit fees of whatever nature arising from its operation, promotion and management of the Facility. The cost of all such permits, licenses and taxes (other than taxes on compensation paid to Manager hereunder) shall be an Operating Expense. Manager shall use reasonable efforts to prevent mechanic's or materialman's or any other lien from becoming attached to the premises or improvements at the Facility, or any part or parcel thereof, by reason of any work or labor performed or materials furnished by any mechanic or materialman engaged by Manager, provided that this provision shall not prevent Manager from contesting any lien resulting from work Manager believes, in good faith, was not performed adequately. ARTICLE XX INDEPENDENT CONTRACTOR Manager is an independent contractor and as such is not an employee of the City. Manager is responsible for any and all Federal, State and local taxes required by law and I►.t11 resulting from the compensation paid to Manager hereunder. Such taxes will not be in addition to the compensation received by Manager hereunder but rather will be the sole obligation of Manager, which shall indemnify, defend and hold the City harmless from any and all such taxes. Nothing herein contained is intended or shall be construed in any way to create or establish the relationship of partners or a joint venture between the City and Manager. None of the officers, agents or employees of Manager shall be or be deemed to be employees of the City for any purpose whatsoever. ARTICLE XXI COMPLIANCE WITH ENVIRONMENTAL LAWS Section 21.1. Manager shall not use or permit the Facility or any part thereof to be used to generate, manufacture, refine, treat, store, handle, transport or dispose of, transfer, produce or process Hazardous Materials or Petroleum Products, except, and only to the extent, if necessary to maintain the Facility and then, only in compliance with applicable Environmental Laws, nor shall it knowingly permit, as a result of any intentional or unintentional act or omission on its part or by any tenant, subtenant, licensee, guest, invitee, contractor, employee or agent, the storage, transportation, disposal or use of Hazardous Materials or Petroleum Products on, from or beneath the Facility excluding, however, those Hazardous Materials and Petroleum Products in those amounts ordinarily found in the inventory of or used in the operation of facilities of the type of the Facility, the use, storage, treatment, transportation and disposal of which shall be in compliance with applicable Environmental Laws. Upon knowledge of the occurrence of any release or threatened release of Hazardous Materials or Petroleum Products, Manager shall promptly notify the City. Section 21.2. Manager shall comply with, and take reasonable actions to ensure that its agents, licensees, employees, and contractors comply with, applicable Environmental Laws so as to keep the Facility free and clear of any violation of such Environmental Laws. Upon receipt of notice from any person with regard to the release of Hazardous Materials or Petroleum Products on, from or beneath the Facility, Manager shall give prompt written notice thereof to the City. Section 21.3. All expenses incurred by Manager in ensuring compliance with the terms and conditions set forth in this Article XXI shall be considered operating expenses of the Facility, reimbursable to Manager by the City, except to the extent that such expenses (including, without limitation, expenses incurred to clean up and remove any Hazardous Materials or Petroleum Products from the Facility) result from Manager's failure to comply, or to ensure the compliance by others, with such terms and conditions. ARTICLE XXII NAME AND LOGOS Use of City and Facility Names and Logos. Manager and its Affiliates shall be permitted to use the name and logo of the Facility and the City (but not the City Seal) for the purpose of promoting the Facility, subject to the approval of the City Contract Administrator. Manager agrees that it shall not license or otherwise grant use of the City and Facility names and logos (i) to any third party vendors, suppliers or service providers of Manager or the Facility, or (ii) to any third party to be used on any novelties or merchandise. -27- ARTICLE XXIII MINORITY PARTICIPATION REQUIREMENTS Section 23.1. Manager shall comply with the requirements of Virginia Beach City Code §2-224.1 through §2-224.8 pertaining to minority participation in City contracting. Section 23.2. By executing this Agreement, Manager accepts the right of the City to appoint a representative to monitor Manager's compliance with the commitments and requirements of this Article. The City or its designee shall have the right to review all relevant documents of Manager relating to the participation of Minority-owned Businesses and Woman - owned Businesses on an ongoing basis. Section 23.3. The City reserves the right to evaluate Manager's performance with regard to the commitments and requirements of this Article on an annual basis. ARTICLE XXIV TAX EXEMPTION COVENANT - FINANCING DOCUMENTS Section 24.1. Tax -Exempt Bonds. Manager acknowledges that the City is financing the Facility through the issuance of tax-exempt bonds ("Tax -Exempt Bonds"), the interest on which is excludable from gross income for Federal income tax purposes under Section 103(a) and related provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and applicable rules and regulations. Manager agrees that, in addition to other contracts requiring the approval of the City, Manager will not execute any of the following described contracts unless it has received the City's written approval: (i) Any contract relating to the Facility that grants a leasehold interest, term for years, or other real estate interest in the Facility, or grants a right to use the Facility on a basis different from that of the general public, unless such use satisfies a short-term use exception as described in Section 1.141-3(d)(3) of the Treasury Regulations. (ii) Any contract for the use of the Facility for shows, programs, conventions and other events (A) where the term of such use exceeds fifty (50) days in the aggregate, including all renewal options or (B) where the compensation for such use is on a basis other than at fair market value (as such term is used for Federal income tax purposes). (iii) Any contract for the use of the Facility for shows, programs, conventions and other events where the right of the user to the Facility is that of a full legal possessory interest in the Facility, rather than that of a transient occupant, unless such contract provides for use on a fixed fee basis (excluding the sale of merchandise or concessions in respect thereto which may be on a percentage of merchandise or concession revenues). Section 24.2. Financing Documents. The City has provided Manager with a copy of the relevant provisions of the Financing Documents that impose limitations, restrictions or ma conditions upon the use and operation of the Facility. Manager and the City each agree to operate and use the Facility in accordance with such provisions. ARTICLE XXV GUARANTY OF PERFORMANCE Section 25.1. Comcast-Spectacor, L.P. is delivering, contemporaneously herewith, in the form attached hereto as Exhibit F, an executed agreement (the "Performance Guaranty") to the City pursuant to which Comcast-Spectacor, L.P. is guaranteeing the performance of Manager under this Agreement, including, without limitation, payment of any amounts owed by Manager to the City. Manager acknowledges that such Performance Guaranty must remain in effect at all times during the Operating Term. ARTICLE XXVI MISCELLANEOUS Section 26.1. Force Majeure. Except as otherwise provided herein, neither party shall be obligated to perform, and neither party shall be deemed to be in default of its performance, if prevented by: (a) fire, earthquake, hurricane, wind, flood, act of God, riot, terrorism, or civil commotion occurring at the Facility, or (b) by law, ordinance, rule, regulation, or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, war or governmental law and regulation, or (c) labor dispute which results in a strike or work stoppage affecting the Facility or services described in this Agreement. If all or substantially of the Facility is destroyed, damaged or rendered materially untenantable by fire, storm or other casualty or by any governmental or regulatory action, or if title to or the use of all or part of the Facility is taken under the exercise of eminent domain, or lost because of failure of title, the City may terminate this Agreement upon thirty (30) days written notice to Manager, whereupon the City shall be released from all further obligations to Manager including, without limitation, payment of such compensation as required under Section 3 hereof. Section 26.2. Assiggrrient. The City is entering into this Agreement in recognition of and in reliance on the expertise, reliability and competence of Manager and its management in matters pertinent thereto. The performance of the obligations imposed upon Manager under this Agreement will not be assignable by it to any other party unless the City, within its sole discretion, consents to such assignment in writing. Any purported assignment in contravention of this Section shall be void. Furthermore, the services to be provided by Manager may not be subcontracted without the City's prior written consent, which consent may be withheld in its sole discretion, except that the City acknowledges and agrees that VAF has provided services pursuant to the terms of the Pre -Opening Agreement and that VAF may provide similar services under this Agreement on behalf of Manager, including, without limitation, services related to event booking and scheduling, marketing, promotion, event management and fundraising. Notwithstanding the foregoing, nothing herein shall be construed to prohibit Manager from engaging in transactions or reorganizations involving Affiliates which are intended to accomplish internal corporate purposes and which do not materially alter or affect the manner in which services are provided by Manager hereunder. -29- Section 26.3. Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized, prepaid, overnight air courier services. If to the City: Emily Spruill City of Virginia Beach P.O. Box 66129 Virginia Beach, Virginia 23466-6129 With a copy to: City of Virginia Beach Office of the City Attorney Municipal Center -Building 1 2401 Courthouse Drive Virginia Beach, Virginia 23456-9004 If to Manager: Global Spectrum, L.P. 3601 South Broad Street Philadelphia, Pennsylvania 19148 Attn: Chief Operating Officer With a copy to: Philip I. Weinberg, Esquire Comcast Spectacor, L.P. 3601 South Broad Street Philadelphia, Pennsylvania 19148-5290 The designation of the individuals to be so notified and the addresses of such parties set forth above may be changed from time to time by written notice to the other party in the manner set forth above. Section 26.4. Severability. If a court of competent jurisdiction determines that any term of this Agreement is invalid or unenforceable to any extent under applicable law, the remainder of this Agreement (and the application of this Agreement to other circumstances) shall not be affected thereby, and each remaining term shall be valid and enforceable to the fullest extent permitted by law. Section 26.5. Governing Law. The Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles. Section 26.6. Amendments. Neither this Agreement nor any of its terms may be changed or modified, waived, or terminated (unless as otherwise provided hereunder) except by an instrument in writing signed by an authorized representative of the party against whom the enforcement of the change, waiver, or termination is sought. Section 26.7. Waiver; Remedies. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. The remedies provided in this Agreement are cumulative and not exclusive of the remedies provided by law or in equity. -30- Section 26.8. Entire Agreement. This Agreement, including the Operations Manual, the exhibits and the schedules attached hereto and forming a part hereof, sets forth all the covenants, promises, agreements, conditions and understandings between Manager and the City concerning the subject matter of the Agreement, and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as set forth herein. In case of conflict, this Agreement will take precedence over the RFP or the RFP Response. Section 26.9. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. -31- IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed on behalf of such party by an authorized representative as of the date first set forth above. CITY OF VIRGINIA BEACH By: City of Virginia Beach 0 Name: James Spore Title: City Manager ATTEST: Name Approved as to Content: Office of Cultural Affairs Approved as to Legal Sufficiency: Office of the City Attorney GLOBAL SPECTRUM, L.P. By: Global Spectrum, Inc., its general partner By: Name: Title: ATTEST: Name -32- CORPORATE ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA CITY/COUNTY OF PHILADELPHIA IN WITNESS WHEREOF, on this day of 2007, before me, the undersigned, a Notary Public in and for the City/County and State aforesaid, came of Global Spectrum, Inc., a corporation duly organized, incorporated and existing under and by virtue of the laws of the Commonwealth of Pennsylvania; who is personally known to me to be such officer and who is personally known to me to be the same person who executed as such officer of the corporation the within instrument on behalf and as general partner of Global Spectrum, L.P., and such person duly acknowledged the execution of the same to be the act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written. My Appointment Expires: 191911 Notary Public EXHIBIT A COMMUNICATIONS AND INFORMATION TECHNOLOGY SERVICE The parties agree to the following terms with respect to communications and information technology services at the Facility. (i) City Trusted Network a. The City shall be responsible for all components of the City's trusted network at the Facility ("Trusted Network"). The City shall maintain ownership of all components of its Trusted Network. b. The City shall operate all components of its Trusted Network, and shall provide Internet access, standard City desktop productivity software, desktop computers, and printers exclusively to City employees located at the Facility. C. The City shall maintain the Trusted Network and all expenses related to any modifications and/or additions shall be billed to the City's Office of Cultural Affairs d. Manager shall not be responsible for any expenses incurred by the City in operating or maintaining any of the components listed in item (c) above. Such expenses shall be paid by the City through its Office of Cultural Affairs. (ii) Facility / Manager's Network a. Manager shall install (excluding network cabling), operate, and maintain all components of its network infrastructure located at the Facility ("Manager's Network"). Manager shall sustain all components of Manager's Network through maintenance agreements with the manufacturers and version upgrades. Manager shall sustain all components of Manager's Network to the current product version. All expenses associated therewith shall be included in Manager's Expense Budget and funded by the City. b. Manager shall not make any additions and/or modifications to the Manager's Network infrastructure without prior consultation and approval of the City's Department of Communications and Information Technology Systems Support Division. Such network infrastructure shall include, but shall not be limited to, wiring, cabling, switches, and routers. Expenses incurred to make modifications or additions to the network infrastructure shall be billed to the City's Office of Cultural Affairs. All additions or modifications shall comply with the City's Network Standards. -34- C. Manager shall obtain prior approval from the City for any changes or modifications to the Facility's physical plant. d. Internet Access i. In the event that Manager desires to provide Internet access to its employees, agents, and/or subcontractors located at the Facility ("Manager's Employees"), or to other third parties utilizing the Facility for Facility -related business ("Third Parties"), Manager shall be responsible for providing Internet access for Manager's Employees and/or Third Parties, the costs of which shall be included in Manager's Expense Budget and funded by the City. Manager, Manager's Employees and Third Parties shall not have access to the City's Trusted Network. ii. In the event that Manager desires to provide Internet access to the public at the Facility, Manager shall be responsible for providing such Internet access to the public. The public shall not have access to the City's Trusted Network. iii. All expenses incurred by Manager, Manager's Employees, and Third Parties for Internet access at the Facility shall be included in Manager's Expense Budget and shall be subject to funding by the City. e. Manager shall purchase, install, operate and maintain furniture, fixtures, and equipment ("FF&E") for the Facility, to include network components (excluding network cabling), and desktop computer hardware and software. The purchase of such FF&E shall be subject to the approval of the City. The cost of the FF&E shall be included in Manager's Expense Budget and shall be subject to funding by the City. f. Manager shall purchase, operate and maintain (or engage a third party to maintain) specific business software applications, application servers, printers, and any other ancillary hardware and software necessary for the performance of Manager's duties under this Agreement. Such business software applications shall reside on the Facility's computer hardware and Manager's Network, not on the City's computer hardware or Trusted Network. All the costs associated with the foregoing shall be included in the Manager's Expense Budget and shall be subject to approval and funding by the City. g. Manager shall be responsible for licensing all software installed at the Facility on Manager's computer hardware and in Manager's Network. For the purposes of software licensing and adherence to intellectual property laws, the Facility is not considered part of the City's information technology enterprise or the City's Microsoft Enterprise Agreement. -35- Accordingly, Manager shall not have access to any of the City's information technology licenses. The City shall maintain ownership of all business software applications and associated hardware funded by the City, subject to the provisions of Section 2.2(i) of the Operating Agreement to which this Exhibit A is an integral part. All the costs associated with the foregoing shall be included in the Manager's Expense Budget and shall be subject to approval and funding by the City. h. Manager shall provide to the City, upon request, access to Manager's non- proprietary data relating to the Facility. Such data shall include, without limitation, information relating to ticketing, marketing, sales, accounting, utilities consumption, and customer or exhibition lists or similar materials for the use of the Facility. Manager shall provide data to the City within fifteen (15) days of receipt of such request. Manager shall provide data in a non-proprietary, open standard electronic format that is readable by the City. (iii) City Telephone System a. The City shall maintain the City installed telephone system at the Facility. The telephone system shall be utilized by City employees, Manager and Manager's Employees, and Third Parties. The City shall be responsible for the installation of cabling for the telephone system. The City shall own all components of the telephone system. b. The City shall provide telephone service to the Facility and shall issue standard City telephone equipment for use at the Facility. C. Manager, Manager's Employees, and Third Parties shall utilize the City's telephone system at the Facility only for conducing Facility -related business. d. A single telephone bill shall be submitted monthly by the City's Department bf Communications and Information Technology Telecommunications Division to the City's Office of Cultural Affairs for payment. The billing amounts will be based on the same rates offered to all City agencies. The bills shall include all expenses incurred by the City, Manager, Manager's Employees, and Third Parties for telephone service at the Facility. e. The City shall provide the same telephone services offered to other City agencies such as: Long Distance, Voice Mail, ACD, telephone system maintenance, moves, adds, changes and trouble ticket processing. f. The City shall maintain the voice and data cabling and all expenses related to any modifications and/or additions shall be billed to the City's Office of Cultural Affairs. -36- EXHIBIT B CHART OF ACCOUNTS -37- EXHIBIT C INSURANCE; BONDS At all times during this Agreement, Manager shall: (a) maintain commercial general liability insurance, including products and completed operations, bodily injury and property damage liability, contractual liability, independent contractors liability and personal and advertising injury liability against claims occurring on, in, or about the Facility, or otherwise arising under this Agreement; (b) maintain umbrella or excess liability insurance; (c) maintain commercial automobile liability insurance, including coverage for the operation of owned, leased, hired and non -owned vehicles; (d) maintain appropriate workers compensation and employer's liability insurance as shall be required by and be in conformance with the laws of the Commonwealth of Virginia; and (e) maintain professional liability insurance including employment practices liability coverage. Such liability coverage shall be maintained in the following minimum amounts throughout the Operating Term and shall include endorsements naming the City as joint loss payee with respect to any funding relating to this Agreement: A. COMMERCIAL GENERAL LIABILITY $1,000,000 per occurrence $1,000,000 personal and advertising injury $2,000,000 general aggregate $1,000,000 products -completed operations aggregate B. AUTOMOBILE LIABILITY $1,000,000 per accident (PI and PD combined single limit) $1,000,000 uninsured/underinsured motorist C. UMBRELLA OR EXCESS LIABILITY $10,000,000 per occurrence and aggregate D. WORKERS COMPENSATION: STATUTORY No E. EMPLOYER'S LIABILITY $100,000 each accident -bodily injury by accident $500,000 policy limit -bodily injury by disease $100,000 each employee -bodily injury by disease F. PROFESSIONAL LIABILITY/ERRORS & OMISSIONS (Claims Made) $1,000,000 each occurrence/aggregate Policy is to include: Entity Coverage Employment Practices Liability G. CRIME COVERAGE (Including Commercial Crimes and Employee Dishonesty) Coverage on all Manager employees Limit: $1,000,000. -39- EXHIBIT D INVENTORY SCHEDULE EXHIBIT E INVENTORY SCHEDULE Global Spectrum Methods of Procurement The 'Sandier Center For The. Performing Arts* Limits Procedures Small Purchases $0 - $1,000 • No competition is required to purchase goods or services under $1,000. Global Spectrum is encouraged to seek out minority or woman owned businesses for these transactions. $1,001- • Global Spectrum solicits either telephone or written $30,000 quotations, depending on dollar volume and amount of competition. When practicable, Global Spectrum solicits minimum of three (3) written quotations, depending on dollar volume and amount of competition. Of the three (3) quotations solicited, the Global Spectrum will solicit at least one bid from a minority or woman owned business if available. $30,001- Global Spectrum solicits written informal quotations. $50,000 When practicable, Global Spectrum solicits written informal quotations to a minimum of four (4) bidders). Of the four quotations solicited, Global Spectrum will solicit at least two bids from minority or woman owned businesses if available. $0 - $1,000 • Maintenance contract and repairs for office equipment and. shop equipment under $1,000 do not require competition. • Subscriptions for publications under $1,000 do not require competition. Formal Bids > $50,000 • Global Spectrum solicits competitive formal bids. Global Spectrum will include at least three minority or woman owned businesses that are included on the list maintained by the City Purchasing Division. This bidder listing will be made available for use by Global Spectrum. Sole Source Procurements None • Global Spectrum procures the goods/services from the sole source vendor and documents the basis for sole source. Emergency Purchases None • Global Spectrum shall secure, by open market procedure, at lowest obtainable price, any supplies or contractual services, regardless of the amount. • Global Spectrum shall maintain a report documenting the circumstances of the emergency. 41 *Notwithstanding the foregoing, (i) Global Spectrum shall not be required to solicit quotations or bids for media purchases (e.g. buys of time/space in newspaper, radio, internet, television), or purchases of artist or performer services, and (ii) Global Spectrum is entitled to use criteria such as experience, quality of services, references, among others, in awarding contracts and Global Spectrum shall not be obligated to rely on price as the sole determining factor in awarding bids to, or otherwise selecting, any service providers. EPA 22764.000268 RICHMOND 1908812v12 -19 - Item i- J L RESOLUTION/ORDINANCES ITEM #56833 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED until the City Council Session of October 9, 2007: Resolution to REQUEST the local Delegation of the General Assembly sponsor and/or support legislation that will realize the goals and objectives set forth in the 2008 Community Legislative Agenda, including amendments to the City Charter (Public Comment will be scheduled for October 2, 200 7) Voting: 10-0 (By Consent) Council Members Voting Aye: William R "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: John E. Uhrin September 11, 2007 fir O � •' y� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Adopting the City's 2008 Community Legislative Agenda and Requesting Members of the City's Local Delegation to the General Assembly Sponsor and/or Support Legislation that Would Carry Out the Goals and Objectives Set Forth Therein MEETING DATE: October 9, 2007 ■ Background: City Council has a tradition of presenting a Community Legislative Agenda to the General Assembly each year. This Agenda provides the Virginia Beach Delegation with positions of the City Council on funding, legislation, public safety, and other issues that may be brought before the General Assembly. ■ Considerations: This Agenda was prepared based on input from Councilmembers, Department Directors, community leaders, and representatives from various citizen groups. The Agenda includes a separate section, entitled, "City of Virginia Beach 2008 Community Group Items," that contains items received from community groups which will be forwarded, without City Council's endorsement, to the Virginia Beach Delegation for their consideration. ■ Public Information: Councilmembers Wilson and Villanueva, with staff assistance, held two informal public meetings in July 2007 with community leaders and representatives of various citizen groups to obtain items for inclusion in the 2008 Community Legislative Agenda. City Council then held two public comment sessions on the agenda during its meetings on September 4 and October 2. Public notice for this item also will be provided as part of the normal Council agenda process. ■ Recommendations: It is recommended that City Council approve the attached resolution that adopts the 2008 Community Legislative Agenda including the three amendments to the City's Charter and requests the City's local Delegation to the General Assembly sponsor and/or support legislation that would cant' out the goals and objectives set forth. ■ Attachments: (1) Resolution (2) 2008 Community Legislative Agenda Recommended Action: Approval Submitting Department/Agency: City Manager's Office City Manager: k4K>Z- HONORABLE MAYOR MEMBERS OF CITY COUNCIL: The 2008 Community Legislative Agenda Document will be in your Friday package - - not in the Agenda per the City Attorney ................Ruth Hodges Fraser, City Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 A RESOLUTION ADOPTING THE CITY'S 2008 COMMUNITY LEGISLATIVE AGENDA AND REQUESTING THAT MEMBERS OF THE CITY'S LOCAL DELEGATION TO THE GENERAL ASSEMBLY SPONSOR AND/OR SUPPORT LEGISLATION THAT WOULD CARRY OUT THE GOALS AND OBJECTIVES SET FORTH THEREIN WHEREAS, the City Council traditionally adopts a Community Legislative Agenda and requests member of the City's local Delegation to the General Assembly sponsor and/or support legislation therein; and WHEREAS, the City Council has considered a number of goals and objectives for inclusion in the City's 2008 Community Legislative Agenda; and WHEREAS, the City Council also solicited input from community groups in order to advise its General Assembly Delegation of the goals and objectives of those organizations; and WHEREAS, City Council received the Community Group Items which are included in a separate section of the City's 2008 Community Legislative Agenda and Council appreciates the thoughtful participation of community groups in the community legislative agenda process. NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That the City Council hereby adopts the City's 2008 Community Legislative Agenda, which is attached hereto as Exhibit A and is hereby incorporated by reference. 2. That the City Council hereby forwards the Community Group Items, without endorsing them, to the City's Delegation to the General Assembly for their consideration. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City's Delegation to the General Assembly is hereby requested to sponsor and/or support legislation in the 2008 Session of the General Assembly that would carry out the goals and objectives of the City as set forth in its Community Legislative Agenda. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 47 48 49 50 51 That the City Clerk is hereby directed to transmit a copy of this resolution to each member of the City's local Delegation to the General Assembly. Adopted by the City Council of the City of Virginia Beach, Virginia, this day of , 2007. APPROVED TO CONTENT: rr agers Offieg' ii, r!tr I. - — - CA10492 October 3, 2007 R-3 APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Offic CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to grant a Franchise to Entertainment, Inc. for the use of City property at the Oceanfront and 15th Street for the operation of the Virginia Beach Fishing Pier MEETING DATE: October 9, 2007 ■ Background: By ordinance adopted on December 30, 1949, as amended on February 14, 1950, the Town of Virginia Beach (the predecessor municipality to the City of Virginia Beach) granted Virginia Beach Amusement and Pier Corporation the privilege to erect, construct, maintain and operate an amusement pier and use the sandy beach. Virginia Beach Amusement and Pier Corporation (a family business) constructed the pier and related facilities. In April of 1962, City Council issued an invitation to bid for the construction and operation of a fishing and amusement pier at 15th Street on the oceanfront (the "Virginia Beach Fishing Pier"). On May 11, 1962, a franchise for a term of 20 years was granted to the same family business, known as the Virginia Beach Pier and Amusement Company ("VBPAC"). Since the expiration of the original 20 -year term, additional 5 -year franchises and one three-year franchise have been granted to VBPAC's successor, Entertainment, Inc. The pier has been continuously maintained and operated by the same family since 1949. The current franchise has expired and Entertainment, Inc. has expressed a desire to continue to operate the Virginia Beach Fishing Pier (including its related facilities). Accordingly, a franchise agreement has been drafted by the City Attorney's Office for Entertainment, Inc.'s use of the City's property for the operation of the Virginia Beach Fishing Pier. ■ Considerations: The term of the franchise will be from October 10, 2007 until October 31, 2009. Entertainment, Inc. will pay an annual franchise fee of $14,000, payable in equal quarterly installments. ■ Public Information: Advertisement for public hearing as required by §15.2-1800 of the Code of Virginia, advertisement of City Council agenda. ■ Alternatives: Adopt the ordinance as presented, change any conditions or terms of the franchise agreement or disapprove the ordinance. 15th Street Fishing Pier Page 2 of 2 ■ Recommendations: Adopt the ordinance granting the franchise and authorizing the City Manager to execute the franchise agreement in accordance with the attached Summary of Terms. ■ Attachments: Ordinance Summary of Terms Recommended Action: Approval. Submitting Department/Agency: City Manager City Manage . �- . 1 AN ORDINANCE TO GRANT A FRANCHISE TO 2 ENTERTAINMENT, INC. FOR THE USE OF CITY 3 PROPERTY AT THE OCEANFRONT AND 15TH 4 STREET FOR THE OPERATION OF THE VIRGINIA 5 BEACH FISHING PIER 6 7 8 WHEREAS, on May 11, 1962, the City Council originally granted a twenty - 9 year franchise to Virginia Beach Pier and Amusement Company ("VBPAC") at the 10 oceanfront and 15t�' Street for the construction and operation of a fishing and 11 amusement pier (the "Virginia Beach Fishing Pier"); 12 13 WHEREAS, since the expiration of the original twenty-year franchise, 14 additional five-year franchises and one three-year franchise have been granted to the 15 VBPAC's successor, Entertainment, Inc.; 16 17 WHEREAS, the current franchise has expired and Entertainment, Inc. has 18 expressed a desire to continue to operate the pier and its related facilities; 19 20 WHEREAS, City staff has recommended to the City Council that a 21 franchise be awarded to Entertainment, Inc. for a two-year period; and 22 23 WHEREAS, based on the staffs recommendation and the pier's long-time 24 existence, the City Council finds that granting a two-year franchise for the operation of 25 the Virginia Beach Fishing Pier will promote the public interest and serve to enhance the 26 festive atmosphere at the oceanfront. 27 28 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 29 OF VIRGINIA BEACH, VIRGINIA: 30 31 1. That a franchise is hereby granted to Entertainment, Inc. to operate 32 the Virginia Beach Fishing Pier at its existing location from October 10, 2007 until 33 October 31, 2009 in accordance with all terms and conditions thereof. 34 35 2. That the City Manager, or his designee, is hereby authorized to 36 execute the franchise agreement with Entertainment, Inc. in accordance with the 37 Summary of Terms attached hereto. 38 1 39 Adopted by the Council of the City of Virginia Beach, Virginia, on this 40 day of , 2007. CA10330 V:\appli cations\citylawprod\cycom32\W pdocs\D026\PO02\00040994.DOC R-1 October 2, 2007 *APPROVE AS TO CONTENT: 7 nager APPROVED AS TO LEGAL SUFFICIENCY: 14-Q �J' City Attorney Proposed Short -Term Franchise For Virginia Beach Fishing Pier SUMMARY OF TERMS Grantor: City of Virginia Beach Grantee: Entertainment, Inc. Franchise Property: See Exhibit A property designated as "Pier Property" Term: October 10, 2007 through October 31, 2009. Franchise Fee: Grantee shall pay to Grantor $14,000 annually, payable on a quarterly basis Responsibilities of Grantee: shall keep Pier and Pier Property in good condition and repair. shall provide commercial liability coverage including product liability coverage in the amount of not less than $1,000,000 (CSL). shall indemnify and hold harmless the Grantor for all claims, damages or losses resulting from Grantee's operation, occupancy and use of the Pier and Pier Property or the conduct of its operation, or resulting from the negligence or intentional acts or omissions of the Grantee. Permitted Uses: rental and sale of bait and tackle for fishing. one or more restaurants with a maximum area of 4,600 square feet each. retail stores engaged in the sale of tourist -related merchandise, goods and/or services. However, the sale of time shares shall be permitted only from a specified kiosk on the Pier. Rights and Responsibilities of Grantor: shall have the right to inspect the Pier and the Pier Property at all reasonable times with or without notice to the Grantee. shall have the right to cancel and terminate the franchise on written notice to the Grantee upon failure of the Grantee to cure a default or a breach of the terms and conditions of the franchise. shall have the right, with no compensation to the Grantee, to photograph the Pier, including the interior and exterior thereof, any persons on and about the Pier and the name of the Grantee's establishments, and to use any such photographs in any of the Grantor's publicity or advertising. Special Conditions: from November 1 through January 6 each year, the Grantor shall have the right to place on the Pier electric lights, electrical wiring, temporary junctions or fuse boxes and such other equipment needed by Grantor in connection with a holiday light display on the Virginia Beach oceanfront boardwalk of the type currently known as "Holiday Lights at the Beach". Franchise is assignable upon written consent of the City. The City may consent or decline to consent to any such assignment. V:\applications\citylawprod\cycom32\ Wpdocs\D026\P002\00041006.DOC Exhibit A The pier property, generally known as the "15th Street Pier", extending from the Boardwalk over the sandy beach and into the Atlantic Ocean generally east of 15th Street in the City of Virginia Beach, more particularly described as follows: PIER PROPERTY All that certain strip, tract or parcel of land lying in the City of Virginia Beach, Virginia, lying east of the Entertainment, Inc. Tract (as defined below), being bounded on the west by the Entertainment, Inc. Tract, on the east by the low water mark of the Atlantic Ocean, on the north by an extension into the Atlantic Ocean of the northern line of the Entertainment, Inc. Tract, and on the south by the extension into the Atlantic Ocean of the southern line of the Entertainment, Inc. Tract, together with all ways, water courses, riparian rights, privileges and appurtenances to the same belonging. ENTERTAINMENT INC. TRACT All that certain tract, piece or parcel of land, together with the all buildings, appurtenances and riparian rights thereto belonging, including all piers, wharves and structures thereon and extending eastwardly therefrom, located in the City of Virginia Beach, Virginia, and described as follows: Beginning at a point in the eastern line of Atlantic Avenue 92 feet and 6 inches north of the intersection of the northern line of 14th Street with the eastern line of Atlantic Avenue, and running thence northwardly along the eastern line of Atlantic Avenue 289 feet and 6 inches to a point in the eastern line of Atlantic Avenue; thence eastwardly and parallel with 14th Street 150 feet to a point; thence southwardly parallel with Atlantic Avenue 289 feet and 6 inches to a point; thence westwardly parallel with 14th Street, 150 feet to the point of beginning; it being a portion of Block 1 as shown on the plat of property of Norfolk and Southern Railroad dated April 2, 1914, and recorded in the aforesaid Clerk's Office in Map Book 6 at page 320. 'M g CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept Eight Positions from the State Compensation Board, Appropriate $327,330 in Additional State Revenue, and Transfer $145,212 from the General Fund Reserve for Contingencies to the FY 2007-08 Operating Budget of the Commonwealth's Attorney's Office MEETING DATE: October 9, 2007 ■ Background: The State Compensation Board approved three new attorney positions for the Virginia Beach Commonwealth's Attorney's Office for FY 2006-07. At the time, the Office lacked adequate space to hire the new positions and transferred three City -funded positions to state functions until such time as their space constraints were resolved. For FY 2007-08, the Commonwealth's Attorney's Office was granted an additional five positions by the State Compensation Board — two attorneys, two paralegals, and one clerk. Since the expansion of the Commonwealth's Attorney's office space to the basement of Building 10B is nearing completion, additional office space is now available for current and new employees. The Commonwealth's Attorney intends to fill two of the positions as paralegals, one as an office assistant, and the remaining five positions are anticipated to be filled as attorneys. The timing will enable the Commonwealth's Attorney to fill several of these new positions with employees who are currently employed with the Office under grants that are due to expire in the coming months. The State Compensation Board is providing $327,330 for FY 2007-08 toward the salary and fringe benefit costs of these eight positions. The City portion of the salary and benefits for the remainder of the year totals $145,212, for a total cost of $472,542. ■ Considerations: According to the State Compensation Board staffing standards, the Office of the Commonwealth's Attorney continues to be understaffed based on the number of state -authorized personnel. The impact of the space constraints has inhibited the Office from filling the positions authorized last year. The Commonwealth's Attorney's Office has one of the highest caseloads in the state, which will continue to increase without approval of the additional positions. Declining these positions would result in a permanent reduction of the prosecution of misdemeanor appeals and domestic violence cases, and it would affect reimbursement amounts from the state. ■ Public Information: Public information will be handled through the normal agenda process. ■ Alternatives: Staff allocated to the prosecution of misdemeanor appeals and domestic violence cases would be permanently allocated to the prosecution of felonies, resulting in a reduction/elimination of these services. ■ Recommendations: Accept eight additional positions approved by the State Compensation Board, appropriate $327,330 in additional revenue from the State and transfer $145,212 from the General Fund Reserve for Contingencies to the FY 2007-08 Operating Budget of the Commonwealth's Attorney's Office. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Office of the Commonwealth's Attorney�� City Manager: SNM 1 AN ORDINANCE TO ACCEPT EIGHT POSITIONS FROM 2 THE STATE COMPENSATION BOARD, APPROPRIATE 3 $327,330 IN ADDITIONAL STATE REVENUE, AND 4 TRANSFER $145,212 FROM THE GENERAL FUND 5 RESERVE FOR CONTINGENCIES TO THE FY 2007-08 6 OPERATING BUDGET OF THE COMMONWEALTH'S 7 ATTORNEY'S OFFICE 8 9 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 10 VIRGINIA: 11 12 1. That eight additional full-time positions, including five attorneys, two paralegals, 13 and an office assistant, are hereby accepted from the State Compensation 14 Board; 15 16 2. That $327,330 in additional revenue from the state is hereby accepted and 17 appropriated to the FY 2007-08 Operating Budget of the Commonwealth's 18 Attorney's Office to provide funding towards the salaries and fringe benefits of 19 the additional positions, with revenue from the state reflected accordingly; and 20 21 3. That $145,212 is hereby transferred from the General Fund Reserve for 22 Contingencies to the FY 2007-08 Operating Budget of the Commonwealth's 23 Attorney's Office to provide the required match for the salaries and fringe 24 benefits. 25 26 Requires an affirmative vote from the majority of the members of City Council. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2007. APPROVED AS TO CONTENT APPROVED AS TO LEGAL SUFFICIENCY Management Services CA10513 R-3 October 1, 2007 City Attorney's Offic K. PLANNING 1. Variance to § 4.4(b) of the Subdivision Ordinance that requires all newly createad lots meet the requirements of the City Zoning Ordinance (CZO) for PYONG TU CHO at 1212 North Inlynnview Road to subdivide the existing two lots and develop a new lot with a single family dwelling. (deferred indefinitely by City Council on January 9, 2007 and August 14, 2007) DISTRICT 5 — LYNNHAVEN RECOMMENDATION DENIAL 2. Application of CH&B ASSOCIATES, L.L.P. re a conceptual Site Plan addressing the site and building design elements consistent with the existing commercial designation at the Northeast corner of Princess Anne Road and South Plaza Trail in accordance with proffers previously approved by City Council on September 9, 2003. DISTRICT 2 — KEMPSVILLE RECOMMENDATION APPROVAL 3. Application of COLLEGE PARK, L.L.C. for a Modification of Proffers to cover the parking spaces with a "carport" and add a maintenance structure at 6226 Providence Road (approved by City Council on January 23, 2007). DISTRICT 1 — CENTERVILLE RECOMMENDATION APPROVAL 4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions to enclose the existing storage and picnic shelter at 2208 Princess Anne Road (approved by City Council on April 25, 1988). DISTRICT 7 — PRINCESS ANNE RECOMMENDATION APPROVAL 5. Application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a church at 2180 McComas Way, Suite 113. DISTRICT 7 — PRINCESS ANNE RECOMMENDATION APPROVAL 6. Application of WILLIE DONALD MARTIN, JR. for a Conditional Use Permit re an auto repair garage at 1128 Barrs Road. DISTRICT 4 — BAYSIDE STAFF RECOMMENDATION: RECOMMENDATION INDEFINITE DEFERRAL APPROVAL 7. Application of RAPPAHANNOCK SPORTS, L.L.C. for a Conditional Use Permit re an indoor recreation facility at the Southeast intersection of Holland Road and Warwick Drive. DISTRICT 6 — BEACH RECOMMENDATION APPROVAL 8. Application of CINGULAR WIRELESS for a Conditional Use Permit re a communication tower, antennas and equipment building at 4021 Charity Neck Road. DISTRICT 7 — PRINCESS ANNE RECOMMENDATION APPROVAL 9. Application of GREG SMITH for a Conditional Use Permit re a home occupation (making and selling glass bead pendants in the garage) at 594 Van Buren Court. DISTRICT 3 — ROSE HALL RECOMMENDATION APPROVAL 10. Application of MATHEWS GREEN ASSOCIATES, L.L.C. for a Change of Zoning District Classification from R-20 Residential District with a PD -112 Overlay to P-1 Preservation District at 2217 Mathews Green. [Conditional Zoning approved with Proffers August 22, 2006] DISTRICT 7 — PRINCESS ANNE. RECOMMENDATION APPROVAL 11. Application of KOTARIDES DEVELOPERS for a Change of Zoning District Classification from B-2 Community Business District to Conditional A-24 Apartment District re rental apartments within twelve buildings at 920 South Military Highway. DISTRICT 1— CENTERVILLE RECOMMENDATION APPROVAL NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the Chamber at City Hall, Municipal Center, 2401 Courthouse Drive, Tuesday, October 9, 2007, at 6:00 p.lm. The following applications will be heard: DISTRICT 5 - LYNNHAVEN Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for 149845984Tu Cho, 2North y 1). Deferred by City Council January 9 2nniview Road 0N 07 DISTRICT 2 - KEMPSVILLE CH&B Associates, L.L.P. Application: Approval of a conceptual site plan addressing the site and building design elements consistent with the existing commercial designation of property at the northeast comer of Princess Anne Road and South Plaza Trail in accordance with proffers previously approved by City Council on September 9, 2003. A copy of the September 9, 2003 proffers, the proposed site Pplan, and lanning Departmentu(GPINral 1e1476612829)vations are available m the DISTRICT 7 - PRINCESS ANNE Mathews Green Associates, L.L.C. Application: Chanes of Zoning Dlstdct C10li icatlon from R-20 Residential with a PD,H2 Overlay to P-1 Preservation at 2217 Mathews Green (GPIN 2404949948). Vicfor alous churcihnatC2190Church AMcIComas Way,dSui el 113 (GPIN 2404977494). St. Michael Lutheran Church Application: Modification of Conditions for a request approved by City Council on April 25, 1988 at 2208 Princess Anne Road (GPIN 2404952881). Cingular Wireless Application: Conditional Use Permit for a communication tower 2411550252). AICUZ is Less Than 65 d21 B Neck Road (GPIN Dli DISTRICT 1- CENTERVILLE College Park, L.L.C. for a Modification of Cond'Rions for a request approved by City Council on January 23, 2007 at 6226 Providence Road (GPIN 1456335185). Kotarides Developers Application:Chance of Zonin¢ District Classification from B-2 Community Business to Conditional A-24 Apartment at 920 South Military Highway. The Comprehensive Plan 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. The purpose of this rezoning is to construct multi -family dwellings. AICUZ is Less Than 65 dB Dli (GPIN 1456230589). DISTRICT 4 - BAYSIDE Willie Donald Martin, Jr.: Conditional Use Permit for an automobile repair garage at 1128 Barts Road (GPIN 1459700591). Norfolk International Airport AICUZ is 65-70 and Clear Zone - NAS Oceana AICUZ is Less Than 65. DISTRICT 6 - BEACH Rappahannock Sports, L.L.C. Application: Conditional Use Permi for an indoor recreation facility at the southeast intersection of Holland Road and Warwick Drive (GPIN 1495086742). DISTRICT 3 - ROSE HALL ;reg Smith Application: Conditional Use Permit for a home iccupation !making and selling glass bead pendants) at 594 /an Buren Court (GPIN 1486576552). Nil interested citizens are invited to attend. Ruth Hodges Fraser, MMC City Clerk Copes of the proposed ordinances, resolutions and amendments are on file and may be examined in the Department of > : Planning or online at htta•//www r0tioc i:com/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 385 -4303 - VP Sept. 26 & Oct. 3. 2007 17681544 A,e— , u s Gpin 1498-45-9841 -49 - Item 49 - Item KL Z PLANNING ITEM # 55984 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY Variance to §4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for PYONG TU CHO at 1212 North Inlynnview Road to subdivide the existing two lots and develop a new lot for a single family dwelling. Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Pyong Tu Cho. Property is located at 1212 North Inlynnview Road (GPIN 1498459841). DISTRICT 5 — LYNNHAVEN Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None January 9, 2007 -56 - Item V -L.3. PLANNING ITEM #56695 Attorney Les Watson, One Columbus Circle, Phone: 497-6633, represented the applicant and requested INDEFINITE DEFERRAL. Greg Tuthill, 1220 North Inlynnview Road, Phone: 650-7610, registered in OPPOSITION, but was not OPPOSED to the DEFERRAL Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY a Variance to §4.4(b) of the Subdivision Ordinance that requires newly created lots meet all the requirements of the City Zoning Ordinance (CZO) in regard to certain elements of the Subdivision Ordinance, Subdivision for PYONG TU CHO, at 1212 North Inlynnview Road to subdivide the existing lot into two lots and develop the new lot with a single family dwelling. Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Pyong Tu Cho. Property is located at 1212 North Inlynnview Road (GPIN 1498459841). DISTRICT 5 — LYNNHAVEN Voting: 10-0 (By Consent) Council Members Voting Aye: William R "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: John E. Uhrin August 14, 2007 Iro V Z"tiYs? �-- .Z CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Pyong Tu Cho. Property is located at 1212 North Inlynnview Road (GPIN 1498459841). DISTRICT 5 — LYNNHAVEN MEETING DATE: October 9, 2007 ■ Background: The existing lot has 1.79 acres, a lot width of 187.07, and is zoned R-40 Residential District. There is an existing single-family house located on the lot. The lot is impacted by the -Chesapeake Bay Preservation Area, Resource Protection Area. The applicant has obtained approval from the Chesapeake Bay Board for the construction activity proposed with this proposal. The City Council indefinitely deferred this application on January 9, 2007 and again on August 14, 2007, at the request of the applicant. The applicant has now requested that the matter be returned to the City Council for consideration. The applicant has submitted a revised subdivision plat (page 7 of attached report) that reduces the size of the proposed house shown on the parcel from 5,200 square feet to 4,200 square feet. The applicant has also submitted letters of support and a petition of support for the proposal. ■ Considerations: It is the intent of the applicant to subdivide the existing lot into two lots and develop the new lot with a single-family dwelling. The lot that will contain the existing house lacks the required lot width of 125 feet. According to the submitted plat, the lot has a width of only 25.04 feet. Evaluation of this request reveals that the applicant has not met the criteria listed in Section 9.3 of the Subdivision Ordinance for a variance. Application of the existing ordinances and regulations produces no undue hardship upon the site. The site can still be used and or redeveloped in accordance with the current ordinances and regulations. The existing lot shares the same topographical characteristics as other lots within the area and thus, this is not a valid reason for granting the variance. The existing neighborhood will be adversely affected with the introduction of lots smaller in size than those currently existing on the waterside of the street. While several variances to lot width have been approved in the past (see Page 3 of 3, below), those requests produced lots varying in size from 88,000 square feet to 33,500 square feet outside of water, marsh and wetlands. This request proposes lots of 28,628 square feet and 26,821 square Pyong Tu Cho Page 2of3 feet outside of water, marsh and wetlands. Thus, this proposal is not comparable to past subdivision variance actions. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to deny this request. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends denial. Planning Commission recommends denial. Submitting Department/Agency: Planning Department / A City Manager: �,` c(N� �1�-' Pyong Tu Cho Page 3 of 3 z . Q 1252 a K 4—%- d '�v 1 1- 1208 H d V - = = 1220 �\ • b a 1224•. ` \ ?Fs.a- \ \ ��•'' 1228 \ \ 1232 \- \%tl - - bj✓. �y 1236 —1242 1244 z . Q 1252 a K 4—%- d '�v 1 PYONG TU CHO Agenda Item 7 December 13, 2006 Public Hearing Staff Planner: Faith Christie REQUEST: Subdivision Variance to Section 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance. ADDRESS / DESCRIPTION: 1212 Inlynnview Road. Pon Tu Cho R-40 C CYNM1f CdL'L1' &11' 0 o R-40 R-40 R-40* eQ o Gpin 149"S-91141 GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 1498459841 5 - LYNNHAVEN 77,913 square feet (1.79 acres) Existing Lot: The existing lot is 1.79 acres and 187.07 feet in SUMMARY OF REQUEST width. Proposed Lots: It is the intent of the applicant to subdivide the existing lot into two lots and develop the new lot with a single-family dwelling. The new lot lacks the required lot width of 125 feet. According to the submitted plat, the lot has a width of only 25.04 feet. Item ReaukAd Lot Y-1 LDt Y-2 Lot Width in feet 125 162.03 25.04* Lot Area insquare feet 40,000 40,122 44,364 Lot Area in square feet outside of water, marsh or wetlands 1 24,000 26,821 28,628 variance requirea LAND USE AND ZONING INFORMATION EXISTING LAND USE: A single-family dwelling and associated accessory uses occupy the site. SURROUNDING LAND North: . Lynnhaven Bay PYONG TU CHO Agenda Item 7 Page 1 USE AND ZONING: South: . Inlynnview Road East: . Single-family dwelling / R-40 Residential West: . Single-family dwelling / R-40 Residential NATURAL RESOURCE AND The site is within the Resource Protection and Management areas of the CULTURAL FEATURES: Chesapeake Bay Preservation Area. The applicant received a variance from the Chesapeake Bay Board on July 24, 2006 for construction related to a new dwelling on the proposed lot. The following conditions are attached to the variance: 1. A pre -construction meeting shall be convened with Civil Inspections prior to any land disturbance, inclusive of demolition. 2. A 36" wire re -enforced silt fence shall be installed prior to any land disturbance and shall remain in place until such time as vegetative cover is established. 3. Permanent and / or temporary soil stabilization as determined by staff shall be applied to all disturbed / denuded areas prior to a final building inspection or certificate of occupancy. 4. Construction limits shall lie a maximum of 15' seaward of improvements. 5. The construction access way shall be noted on the site plan as well as the stockpile staging area. 6. Stormwater from existing and proposed impervious cover associated with both lots shall be conveyed to stormwater management facilities. 7. If and when the shoreline is re -hardened, a rip -rap revetment shall be constructed in lieu of a vertical retaining structure (vinyl, timber or steel bulkhead). The toe of said revetment shall lie at or landward of mean high water or tidal vegetated wetlands. Said condition shall be so noted on the site plan. 8. Under deck treatment of sand and gravel shall be installed. 9. A maximum of 10% of Lot Y-1 and 5% of Lot Y-2 of the residual yard area not devoted to impervious cover may remain in turf. The residual 90% and 95% respectively, shall be devoted to buffer restoration — approximately 18,086 square feet for Lot Y-1 and approximately 19,390 square feet for Lot Y- 2. Said restoration shall utilize bayscape landscaping principles and incorporate a mulch layer of organic material 4" — 6" in depth. In addition to the aforementioned buffer restoration, a minimum of 34 trees shall be installed for Lot Y-2 and thirty- four (34) trees for Lot Y-1, tree species shall be comprised of 50% deciduous and 50% evergreen, and shall be evenly distributed throughout the lots to the greatest extent possible. Required buffer restoration and tree installation for Lot Y-2 shall occur prior to final plat recordation. Required buffer restoration and tree installation for Lot Y-1 shall occur prior to the issuance of the certificate of occupancy. Said condition shall be so noted on the site plan. PYONG TU CHO Agenda Item 7 Page 2 10. A separate landscape / buffer restoration plan for each lot shall be submitted concurrent with the site plan / preliminary subdivision reviews detailing location, number, and species of vegetation to be installed. The landscape plan shall clearly delineate existing naturalized area (forest floor), planting beds, and turf zones. 11. The conditions and approval associated with this variance are based on the site plan dated April 1, 2006, prepared by Gallup Surveyors and Engineers Ltd. 12. There shall be no pier constructed for Lot Y-1 and Y-2 beyond what exists today, exclusive of sub -aqueous bottom. 13. A revised site plan shall be submitted to the Department of Planning, Development Services Center for review and approval prior to the issuance of a building permit. 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): Inlynnview Road is a residential dead end street. There are no traffic counts for the street. Addition of one home will generate ten (10) additional ADT. WATER & SEWER: An eight -inch City water main increases to a 10 -inch City water main in Inlynnview Road. The site has an existing water meter, which may be used or upgraded. A separate water meter will be required for the new lot. There is an eight -inch City gravity sanitary sewer force main on Inlynnview Road fronting the lot. The site is connected to City sanitary sewer. A separate sanitary sewer connection will be required for the new lot. Analysis of Pump Station 215 and the sanitary sewer collection system will be required to ensure future flows can be accommodated. Section 9.3 of the Subdivision Ordinance states: No variance shall be authorized by the Council unless it finds that: A. Strict application of the ordinance would produce undue hardship. B. The authorization of the variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. PYONG TU CHO Agenda Item 7 Page 3 C. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. D. The hardship is created by the physical character of the property, including dimensions and topography, or by other extraordinary situation or condition of such property, or by the use or development of property immediately adjacent thereto. Personal or self- inflicted hardship shall not be considered as grounds for the issuance of a variance. E. The hardship is created by the requirements of the zoning district in which the property is located at the time the variance is authorized whenever such variance pertains to provisions of the Zoning Ordinance incorporated by reference in this ordinance. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends denial of this request. Evaluation: Evaluation of this request reveals that the applicant has not met the criteria listed in Section 9.3 and provided above. Application of the existing ordinances and regulations produces no undue hardship upon the site. The site can still be used and or redeveloped in accordance with the current ordinances and regulations. The existing lot shares the same topographical characteristics as other lots within the area and thus, this is not a valid reason for granting the variance. The existing neighborhood may be adversely affected with the introduction of lots smaller in size than those currently existing on the waterside of the street. While several variances to lot width have been approved in the past, those requests produced lots varying in size from 88,000 square feet to 33,500 square feet outside of water, marsh and wetlands. This request proposes lots of 28,628 square feet and 26,821 square feet outside of water, marsh and wetlands. Staff, therefore, cannot support the request. PYONG TU CHO Agenda Item 7 Page 4 PYONG TU CHO Agenda Item 7 Page 5 LCT 5 ZIC rzu ol %3 �T. LYNNHAVEEN RIVER rya..# ; L02 all s W.*f soft-MkTM so PYONG TU CHO Agenda Item 7 Page 6 T vil ff' ? mll i T T TA I no , DISCLOSURE STATEMENT PYONG TU CHO Agenda Item 7 Page 8 � s - v' G - r n - c Z a c x x r r m G;. i T T TA I no , DISCLOSURE STATEMENT PYONG TU CHO Agenda Item 7 Page 8 Map HJ -51' on Tu Cho Map Not to Scole LYNNHAVEN BAY R— AAI 0 03A 5A R-40 06 15 016 0 v � 017 011 020 0 � o OI -40 -424 oov 013 O Gpin 1498-45-9841 1. 5/23/00 1 Subdivision Variance Approved 2. 3/12/90 Subdivision Variance Approved 3. 11/25/85 1 Subdivision Variance Approved ZONING HISTORY PYONG TU CHO Agenda Item 7 Page 7 Item #7 Pyong Tu Cho Subdivision Ordinance 1212 North Inlynnview Road District 5 Lynnhaven December 13, 2006 REGULAR Barry Knight: Mr. Secretary, please call the first item in our regular agenda for the public hearing. Joseph Strange: The next item is item #7, Pyong Tu Cho. Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision of Pyong Tu Cho. Property is located at 1212 North Inlynnview Road, District 5, Lynnhaven. Barry Knight: Do you have a representative for the applicant? Ed Weeden: Richard Bartlett. Barry Knight: Is the applicant present? Richard Bartlett: A representative of the applicant. Barry Knight: That is fine. Welcome sir. Please state your name for the record. Richard Bartlett: My name is Richard Bartlett. I'm here on behalf of Mr. Pyong Tu Cho. This is Paul. This is his son. Paul Cho: My name is Paul Cho. Richard Bartlett: Mr. Cho desires to subdivide this property. I could have one of the slides? One more please. In Lot Y-1, which is left of the green line shown and Y-2, which is right of the green line shown there. It is presently a residence, which Mr. Cho occupies. Just below the letter Y to Lot Y-2, and that his is principal residence. The intent is to subdivide it so he can build another single-family residence on Lot Y-1 for his son, who is in Chicago. Mr. Cho started this process last spring, and in the spring of 2006, when the Chesapeake Bay Preservation Act variance was requested. And I fully understand the difference between the Planning Commission and the CBPA Board. He went through the process of the CBPA and the CBPA approved, based on that indication there, a variance for that CBPA plan on July 24, 2006. The next step after that was to come before the Planning Commission; therefore, we request permission to legally subdivide the property so we can move forward on this. In the timeframe from July to when we made the application on behalf of the Cho's, Paul, Mr. Cho's son, has canvassed the neighborhood, having signatures or comments in support of this process here, and on North Inlynnview Road, and if you can go back a little bit? Go back please? On North Inlynnview Road, you can see it sort of goes to the left where the Crossness property is and then takes that left at the bottom of the screen. We've contacted about 80 percent of the residents along there, and everyone that he has contacted has signed a signature page that was submitted with the application package in support of that. The 20 percent that he didn't get are where they were not home where did not sign it. They didn't express a desire not to have it done, but they were either not available or desired not to sign it. He has received no opposition from neighbors whatsoever in support of this. The other thing that I wanted to note and it's important. Paul is going to hold this up here. Previous Planning Commissions have approved subdivision of lots in the neighborhood. I don't know if you can all see this. Ed Weeden: Mr. Bartlett? Try to stay next to the microphone. Richard Bartlett: I'm sorry. Okay. The green arrow here is Mr. Cho's lot. The orange rectangular coming out is Mr. Cho's lot. All the other red arrows are subdivided lots. These lots have all been subdivided with approval from previous Planning Commissions. There was a concern expressed that subdividing Mr. Cho's lot, which is approximately 2 - acres, and if we can go back again, Y-1 and Y-2 are approximately 1 -acre. I think one is .92 and 1.04. I think it is about 2 -acres. Several of these subdivisions have also been split, and that 1 -acre, and specifically Lot 3, have been separated into lots that are 1 -acre, as well as Lots 5 and 6 have and Lot 8. There have been other lots established through subdivision process that approximately equate the land area. Mr. Cho's should be subdivided. What were asking is that the Planning Commission be consistent with past Planning Commission rulings and apply the same criteria and allow him to subdivide his lots into two, approximately 1 -acre lots for future residential construction on Lot Y-2. Barry Knight: Thank you. Are there any questions for Mr. Bartlett? We don't have any other speakers do we Mr. Strange? Joseph Strange: No. Barry Knight: No. Okay. Ms. Wood? Dorothy Wood: Mr. Bartlett, you do know that we did receive a letter from a neighbor who is in opposition. Richard Bartlett: I am not aware of that. Dorothy Wood: You have signatures from your adjacent neighbors, both of them, and the people across the street? Paul Cho: Next door ma'am. We have the adjacent. Yes. Dorothy Wood: Both sides? 2 Paul Cho: Not both sides, only one side. Dorothy Wood: And the other side was objecting? Paul Cho: Yes. Barry Knight: Ms. Katsias? Kathy Katsias: Could you show us on that site plan which neighbor objected? Barry Knight: There is a laser right there Mr. Bartlett. Richard Bartlett: This neighbor right here objected. We are not aware of the objection, because we don't have any record of any objection. Barry Knight: Would that be Mr. Edwards? Does Mr. Edwards live there? Paul Cho: Mr. Edwards lives across the street. He lives right there. Dorothy Wood: Yeah. Barry Knight: Okay. Richard Bartlett: His house is for sale. Barry Knight: Are there any other questions? Mr. Bernas? Jay Bernas: Could you show with the laser on that map you got, you have arrows where there were other subdivisions. Can you use the laser to show as existing lots, which ones? Richard Bartlett: This lot right here was subdivided and this lot here. Dorothy Wood: How big is that lot now? Richard Bartlett: Lot 3? Let me see. That is a result of a subdivision and those lots were 3.45 acres, 1.5 acres, .92, 1.87, and .97. All of these lots here have been subdivided on a larger parcel now consist of those five numbers here. So they run the gamut of .92 acres to 3.45 acres. Barry Knight: Ms. Katsias? Kathy Katsias: So, these two lots that you are trying to subdivide would be just a little bit more than a half -acre? z Richard Bartlett: No. Kathy Katsias: 25,000 square feet? Richard Bartlett: No. They would be .92 acres and 1.02 acres. Kathy Katsias: Okay. Barry Knight: Is that of high land? Richard Bartlett: I'm sorry. I didn't hear you. Barry Knight: Is that total acreage including high land and land that is in floodplain? Richard Bartlett: That is total acreage of the lot. Barry Knight: Total acreage. Mr. Ripley? Ronald Ripley: I don't know anything about the other variances at all. Since I've been on here, I don't think we've had any in this neighborhood. I can't recall any. But the staff had a problem because they couldn't find whether it was a hardship. Can you tell us what the hardship is that we need to address, because that is really what we need to look at here? Richard Bartlett: Right. And I understand that. Ronald Ripley: What is the hardship? Richard Bartlett: The only hardship that we are approaching here is that consistency be applied from previous Planning Commissions. Ronald Ripley: That is the hardship? Richard Bartlett: Yes. Let's not single out where other Planning Commissions have allowed it. Ronald Ripley: How is that a hardship? I don't understand. Is there a hardship relating to the property itself? Richard Bartlett: There is no hardship to the property itself. It is just the treatment of the individual. Ronald Ripley: Okay. So this is some sort of policy hardship basically that you are interpreting? Richard Bartlett: I wouldn't say policy. Whatever term you want to use, it is the standards of existence to the City of Virginia Beach. Ronald Ripley: Okay. I understand. Thank you. Richard Bartlett: Thank you. Barry Knight: Are there any other questions? Ms. Wood? Dorothy Wood: When was the adjacent property subdivided? I don't remember it either, and I've been on for seven years. Richard Bartlett: These here? Dorothy Wood: Yes sir. Richard Bartlett: 1987. Dorothy Wood: Quite a while ago. The Planning Commissions have changed through the years. Richard Bartlett: Yes. I understand that none of you here were on the Planning Commission in 1987. Dorothy Wood: Thank you. Barry Knight: Are there any other questions? Richard Bartlett: A couple of others were after that. Dorothy Wood: But they are not exactly in the neighborhood, are they, like Brittany Estates isn't exactly in the neighborhood? Richard Bartlett: Lot 2, which is right next to it, was done in 2000. It is just acreage. Lot 1, 2005, Lot 2 was 2000; so, we've had subdivisions in that area. My first comments were those that were comparable areas. Barry Knight: Mr. Henley has a question. Al Henley: The lot that will be created where the new home will go, you said it was roughly little over an acre. Approximately, what area of that parcel is wetland, marsh or water? Richard Bartlett: A percentage? Al Henley: Yes. e Richard Bartlett: My recollection of it, and I don't have a calculator but you're look at about 10 percent or so. Al Henley: So, 10 percent would be wetlands? The second question is that the resident to the left, the resident who lives there subdivided that parcel some years ago? Paul Cho: Next to the left they just built a house, and last year they moved in. Al Henley: Okay. Ed Weeden: Mr. Cho, you need to get to the mic. Paul Cho: Oh, I'm sorry. Right next to the left lot, they built a house, and they moved in last year. 038 and 481, and all three lots were one owner. They subdivided it. Al Henley: Okay. Thank you. Barry Knight: Are there any other questions for the applicant? Thank you sir. Richard Bartlett: Thank you. Paul Cho: Thank you. Barry Knight: Mr. Secretary, you said we have no more speakers? Joseph Strange: No other speakers. Barry Knight: We'll open it up for discussion among the Commission members. Ms. Anderson? Janice Anderson: I would like to say hello to Paul. I haven't seen you in a long time. I've known Paul for several years, and his parents. They run a business near London Bridge, which I frequented several times, and they are - I think the world of Paul and his parents. So, they are wonderful people. But, I have reservations of supporting this, because I do not believe it meets the criteria we're supposed to look for a hardship. And, the hardship is really supposed to be for the subdivision. And the hardship is in the property and not in finance where it would be convenient for the Cho's to subdivide the property because they have sufficient land to put their son's house there. I know that is what they desire, but that is not a hardship. The property is rectangular shaped. It is not unusually large and I just can't believe, and we've got some letters from neighbors that say that they believe that it negatively impacts their neighborhood and the character of it. I just don't think it meets the qualifications. Barry Knight: Thank you Ms. Anderson. Is there anyone else? Ms. Katsias? Kathy Katsias: As the Lynnhaven representative, I totally agree with Ms. Anderson, and therefore, I except the recommendation of the Planning staff and support their recommendation. Barry Knight: Would you like to make a motion? Kathy Katsias: I make a motion to approve the recommendations? Barry Knight: To deny the application? Kathy Katsias: I mean to deny the application? Barry Knight: To deny? Okay. Kathy Katsias: Oh to deny. Right. Barry Knight: Okay. John Waller: I'll second it. Barry Knight: Okay. There is a motion on the floor to deny agenda item #7 by Kathy Katsias and a second by John Waller. Is there any other discussion? Mr. Bernas? Jay Bernas: The only thing that I'm struggling with is, and you're looking at it right now. You've got three flag logs on the same side of the street, and they are all close to each other. But I do agree with Commissioner Katsias and Commissioner Anderson's comments, and it seems like based on this table, that there is a significant area of these lots that would be in the marsh that are included in the lot size. Based on this table, the upland area of Y-1 is almost 27,000 square feet. The Lot Y-2 in the rear, the upland is almost 28,000 square feet. So, to me, I'm kind of struggling with the resulting size based on the upland area because there are a lot of wetlands that is included in the one -acre lots. Then you got those flag lots, and they are right there, directly adjacent on the same side of the street. So, I'm still kind on the fence. Barry Knight: Mr.. Ripley? Ronald Ripley: I tend to agree also, but I think for my point of clarification, Mr. Scott, it does meet that upland requirement doesn't it? Robert Scott: It apparently does. It's an issue of width. Ronald Ripley: Yes. That's it. Barry Knight: Is there any other discussion? There is a motion on the floor by Kathy Katsias and a second by John Waller to deny. So a vote of AYE is to deny. We'll call for the question. AYE 11 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE RIPLEY AYE STRANGE AYE WALLER AYE WOOD AYE NAY 0 ABS 0 ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has denied the application Pyong Tu Cho. Proffer - Site Plan Compliance Review -45 - Item V -K. 5. PLANNING ITEM # 51679 Attorney R J Nutter, 222 Central Park Avenue, Phone 687-7500, represented the applicant Upon motion by Councilman Diezel, seconded by Council Lady Wilson, City Council ADOPTED Ordinances upon applications of CH & B ASSOCIATES, LLP for Conditional Changes of Zoning District Class f cation ORDINANCE UPON APPLICATION OF CH & B ASSOCIATES, L L P FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM PD -H 1 TO CONDITIONAL A-12 Z09031155 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGIMA BEACH, VIRGINLI Ordinance upon Application of CH & B Associates, L L P for a Chane o Zonis District Classification from PD -H I Planned Development Housing to ConditionalA-12ApartmentDistrictand ConditionalP-1 Preservation District with PD -H2 Overlays on the southeast corner of South Independence Boulevard and South Plaza Trail (GPIN 1476727504) The Comprehensive Plan recommends use of this site as a Planned Community, consisting of a range of residential, employment, commercial, institutional, cultural, educational, open space and public uses DISTRICT 2 — KEMPSVILLE The following condition shall be required An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court ORDINANCE UPON APPLMA TION OF CH & B ASSOM TES, L L P FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM PD -H 1 AND R-7 5 RESIDENTIAL DISTRICT TO CONDITIONAL B-2 Z09031156 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of CH & B Associates, L L P for a Chane o Zoning District Classification from PD -H I Planned Development Housing District and R-7 5 Residential District to Conditional B-2 Community Business District on the northwest corner of South Plaza Trail and Princess Anne Road (GPIN 1476612829) The Comprehensive Plan recommends use of this site as a Planned Community, consisting of a range of residential, employment, commercial, institutional, cultural, educational, open space and public uses DISTRICT 2 — KEMPSVILLE The following condition shall be required An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court September 9, 2003 -46 - Item 46 - Item V -b 5. PLANNING ITEM # 51679 (Continued) ORDINANCE UPONAPPLICATION OF CH & B ASSOCIATES, LLP FOR A CHANGE OF ZONING DISTRICT CLASSIFICATTON FROM PDH I TO CONDITIONAL 0-2 Z09031157 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINL4 BEACH, VIRGINL4 Ordinance upon Application of CH & B Associates, L L P for a Chane o Zoning District Classification from PD -H 1 Planned Development Housing to Conditional 0-2 Office District on thesouthwest corner ofSouth Independence Boulevard and South Plaza Trail (GPIN 1476731616) The Comprehensive Plan recommends use of this site as a Planned Community, consisting of a range of residential, employment, commercial, institutional, cultural, educational, open space and public uses DISTRICT 2 — KEMPSVILLE The following condition shall be required I An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court These Ordinances shall be effective in accordance with Section 107 (0 of the Zoning Ordinance Adopted by the Council of the City of Virginia Beach, Virginia, on the Ninth of September, Two Thousand Three Voting 10-0 Council Members Voting Aye• Harry E Diezel, Margaret L Eure, Vice Mayor Louis R Jones, Reba S McClanan, Richard A Maddox, Mayor Meyera E Oberndorf, Jim Reeve, Peter W Schmidt, Rosemary Wilson and James L Wood Council Members Voting Nay None Council Members Absent Ron A Villanueva September 9, 2003 rE CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of CH&B Associates, L.L.P. for approval of a conceptual site plan addressing the site and building design elements consistent with the existing commercial designation of property at the northeast corner of Princess Anne Road and South Plaza Trail in accordance with proffers previously approved by City Council on September 9, 2003. (GPIN —1476612829). DISTRICT 2 — KEMPSVILLE. MEETING DATE: October 9, 2007 ■ Background: CH&B Associates is requesting approval of a conceptual site plan for a commercial shopping center. The request is not a change of zoning on the site for the purpose of allowing the shopping center, as the site has already been rezoned for that purpose in 2003. Moreover, the site has been designated as commercial since 1971 as part of a PUD (later PD -1-11) Planned Development Land Use Plan for the Brenneman Farm. This current request is for approval of the plan for the site, as required by the proffers of that rezoning. At the time of the 2003 rezoning, neither a concept plan for the site layout nor elevation drawings for the buildings were available. Thus, the applicant proffered the following: The Property shall not be developed until an application has been submitted for approval and acted upon by City Council in a timely manner with respect to a conceptual site plan addressing the design elements relating to the site, buildings, parking areas, landscaping and pedestrian and vehicular access. Thus, the specific purpose of this application is to review the design of the site, buildings, parking, landscape plantings, and pedestrian and vehicle access to and from and within the site. ■ Considerations: The submitted concept plan depicts a traditional strip -style shopping center (214,417 square feet total), anchored by a major tenant (shown as 48,706 square foot `grocery store' on the plan), with four (4) outparcels adjacent to S. Plaza Trail, a cluster of small shops adjacent to the intersection of Princess Anne Road and S. Plaza Trail, and a self -standing restaurant adjacent to Princess Anne Road. The cluster of small shops adjacent to the intersection provides a focal CH&B Associates, L.L.P. Page 2of3 point at that location, which is a desirable design feature under the Zoning Ordinance's regulations for retail establishments and shopping centers (Sections 243 - 249). Also located within the cluster of small shops is a landscaped plaza area, which is also a desirable design feature. Additional details pertaining to parking, vehicular and pedestrian access, building design, and landscape features are provided in the attached staff report. The submitted plans provide evidence that the retail center will be of high quality, consistent with the high quality of design established by the existing retail, residential, educational, office and institutional uses surrounding the site. The site and building designs are also consistent with the provisions of the retail design regulations contained within the City Zoning Ordinance. The Planning Commission placed this item on the consent agenda because they concluded the proposal was consistent with the recommendations of the Comprehensive Plan and the retail design requirements of the Zoning Ordinance, staff recommended approval, and there was no opposition. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 10-0 with 1 abstention to approve this request with the following conditions: 1. The site shall be developed in substantial conformance with the concept plan entitled "Brenneman Farm Retail, Master Plan, Option X, dated August 30, 2007, submitted to and on file with the Department of Planning. 2. The site shall be landscaped in substantial conformance with the concept plan entitled "Brenneman Farm Retail, Conceptual Planting Plan, Option X, dated August 15, 2007, submitted to and on file with the Department of Planning. The streetscape plantings and features shall consist of the plantings described on such plan and as depicted on the rendering entitled "Conceptual Perspective, October 12, 2006", by Hines Design, submitted to and on file with the Department of Planning. 3. The architectural design elements, exterior material finishes, and exterior colors of all buildings located on the site shall be substantially as shown on the renderings submitted to and on file with the Department of Planning. 4. The primary identification signs for the development shall be located at the points shown on the plan described in Condition 1. Such signs shall be monument -style and shall be substantially as depicted on the rendering entitled "Conceptual Perspective, October 12, 2006", by Hines Design, submitted to and on file with the Department of Planning. In no case, however, shall signage for the site exceed the requirements of the City CH&B Associates, L.L.P. Page 3 of 3 Zoning Ordinance. 5. Identification signs for the individual businesses within the buildings shown on the plan described in Condition 1 shall be located on the buildings substantially as shown on the renderings submitted to and on file with the Department of Planning. There shall be no neon signs or neon accents installed on any wall area of the building, on or within any windows and / or doors, awnings, light poles, or any other portion of the site. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. 1 Submitting Department/Agency: Planning Department City Manager: ' CH&B ASSOCIATES Agenda Item 1 September 12, 2007 Public Hearing Staff Planner: Stephen J. White REQUEST: Approval of a conceptual site plan addressing the site and building design elements consistent with the existing commercial designation in accordance with proffers previously approved by City Council on September 9, 2003. ADDRESS / DESCRIPTION: Property located at the northeast corner of Princess Anne Road and South Plaza Trail. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 1476612829 2 - KEMPSVILLE 27.6 acres CH&B Associates is requesting approval of a conceptual site SUMMARY OF REQUEST plan for a commercial shopping center. The request is not a change of zoning on the site for the purpose of allowing the shopping center, as the site has already been rezoned for that purpose in 2003. Moreover, the site has been designated as commercial since 1971 as part of a PUD (later PD -1-11) Planned Development Land Use Plan for the Brenneman Farm. This current request is for approval of the plan for the site, as required by the proffers of that rezoning. At the time of the 2003 rezoning, neither a concept plan for the site layout nor elevation drawings for the buildings were available. Thus, the applicant proffered the following: The Property shall not be developed until an application has been submitted for approval and acted upon by City Council in a timely manner with respect to a conceptual site plan addressing the design elements relating to the site, buildings, parking areas, landscaping and pedestrian and vehicular access. Thus, the specific purpose of this application is to review the design of the site, buildings, parking, landscape plantings, and pedestrian and vehicle access to and from and within the site. The submitted concept plan depicts a traditional strip -style shopping center (214,417 square feet total), anchored by a major tenant (shown as 48,706 square foot `grocery store' on the plan), with four (4) outparcels adjacent to S. Plaza Trail, a cluster of small shops adjacent to the intersection of Princess Anne Road and S. Plaza Trail, and a self -standing restaurant adjacent to Princess Anne Road. The cluster of small shops adjacent to the intersection provides a focal point at that location, which is a desirable design feature under the Zoning Ordinance's regulations for retail establishments and shopping CH&B Agenda Item 1 Page 1 centers (Sections 243 - 249). Also located within the cluster of small shops is a landscaped plaza area, which is also a desirable design feature. Parking is well distributed throughout the site in various groupings of spaces, with access to the groupings provided by an internal roadway system. The result is the elimination of the 'sea of asphalt' affect typical of older shopping centers. Additionally, parking spaces are located immediately adjacent to the small and medium-size shops located in the main shopping strip. A total of 1,261 spaces are provided, which exceeds the number required by the Zoning Ordinance. Vehicular access to and from the site is provided at two points on S. Plaza Trail, one point on Healthy Way, and two points on Princess Anne Road. The primary vehicular access point is at the existing intersection of Brenneman Trail and S. Plaza Trail, where a traffic signal will be necessary. The remaining access point on S. Plaza Trail and the two access points on Princess Anne Road will allow only right -in and right -out movements by vehicles. The access point on Healthy Way will be at a new median break on Healthy Way, and thus, will allow the full range of turning movements for vehicles. There is also an access point at the end of the cul-de-sac bulb for Healthy Way; however, this access is designated as being for delivery and service vehicles rather than customers of the center. Pedestrian access is provided throughout the center, with a number of connections to the public sidewalk system on Princess Anne Road and S. Plaza Trail. Walkways within the site are adjacent to the internal roadway system and are connected to walkways that cross drive aisles in the parking lots to connect with the walkways for each outparcel as well as the walkway fronting the main shopping strip. The walkway system also provides connectivity between outparcels and allows for ingress and egress from the site via walkways between that run between outparcels. Additionally, as required by the retail design provisions of the Zoning Ordinance, a wide landscaped walkway is located within the parking area in front of the anchor retail building, running from the entrance of that building through the parking lot and ending at the walkway adjacent to the internal roadway. Landscape plantings are provided throughout the site and within the parking areas, as required by ordinance. The 'plaza' area located at the cluster of small shops at the southern corner of the site has plantings of large shade trees, such as London plane trees, and small flowering accent trees, such as cherry trees. Adjacent to Princess Anne Road and S. Plaza Trail is a streetscape feature consisting of a white open -rail fence, crape myrtles, and evergreen shrubs, matching the streetscape feature already installed on the southeast side of S. Plaza Trail. This feature is instrumental in providing screening of the parking spaces and drive aisles located between the buildings adjacent to Princess Anne Road and S. Plaza Trail, as the retail design provisions of the ordinance require such screening when parking spaces and drive aisles are located between the buildings and the property line. The proposed buildings possess a mixture of Colonial, Modern, and Victorian style elements, which, combined, provide an interesting facade with a variety of patterns, materials, and colors. Specific elements include pediments, cornices, arches, pilasters, arcades, awnings, and a bracketed tower. Exterior material finishes include brick veneer and exterior insulated finish system (EIFS) with standing seam metal roofing on the pediment above the main anchor store and on the roof of the corner tower. In sum, the submitted renderings depict buildings that comply with the requirements of the retail design provisions of the City Zoning Ordinance. A condition to be added to an approval of the submitted site plan and the building elevations is recommended below to ensure that all of the buildings on the site will be of similar design, exterior finish, and colors. CH&B Agenda Item 1 Page 2 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Undeveloped site recently used for crop production SURROUNDING LAND North: . Private high school / R-10 Residential District USE AND ZONING: . Healthy Way • Undeveloped land and medical facility / PD -H1 Planned Development District South: . S. Plaza Trail • Multi -family residential / A-12 Apartment District • Motor vehicle service station with car wash / B-2 Community Business District East: . S. Plaza Trail • Multi -family residential / A-12 Apartment District (PD -H2 Planned Development Overlay District) West: . Princess Anne Road • Multi -family residential / PD -H1 Planned Development District NATURAL RESOURCE AND The majority of the site is a field with a variety of native weeds and CULTURAL FEATURES: grasses. There are no known features on the site of historical or cultural significance. AICUZ: The site is in an AICUZ of Less than 65 dB Ldn surrounding NAS Oceana. ZONING HISTORY: The Brenneman Farm Land Use Plan was originally approved by City Council as a PUD in June of 1971. This plan was comprised of 241 acres and consisted of mixed residential uses with a total of 1,024 units, 16 acres of commercial development, and a 23 acre office park. No details of the development were provided other than a general land use plan. In 1982, the City Council rezoned all properties in the PUD zoning district in Virginia Beach to PD -H1. In 1992, 15 acres were rezoned from PD -H1 to R-10 Residential District and a Conditional Use Permit for the Catholic High School was granted. In 1998, City Council approved another amendment that resulted in a revised Land Use Plan. In 2003, the site was rezoned from PD -H1 to Conditional B-2, Conditional 0-2 and A-12 with a PD -1-12 Overlay. That rezoning resulted in all of the residential uses being on the southeast side of South Plaza Trail. The northwestern side of South Plaza Trail was rezoned for office (north and west of the new Bon Secours medical facility) and retail commercial uses (on the subject site). CH&B Agenda Item 1 Page 3 IMPACT ON CITY SERVICES TRAFFIC: Public Works / Traffic Engineering has reviewed the Brenneman Farms Retail Master Plan dated June 29, 2007 in regard to the proposed access to the retail center. Traffic Engineering is also currently reviewing the revised Traffic Impact Study for this retail center, dated August 2007, that shows the specific retail uses indicated on the Master Plan [NOTE: A Traffic Impact Study (TIS) was done in 2003 with that rezoning; the TIS submitted with this current request is an update to the 2003 TIS based on the specificity of the proposed concept plan]. A summary of the trip generation for the retail center from the original TIS and revised TIS is provided below: Existing TIS: 10.730 ADT (average daily trips) weekday based on 250,000 s.f. retail shopping center. 935 trips P.M. peak hour TOTAL COMMERCIAL Revised TIS: 5,669 ADT weekday based on 55,446 s.f supermarket 5,747 ADT weekday based on 133,460 s.f. specialty retail 4,396 ADT weekday based on 21,511 s.f. (four) restaurants 986 ADT weekday based on 4,000 s.f bank 16,798 ADT weekday TOTAL COMMERCIAL 1,242 trips P.M. peak hour TOTAL COMMERCIAL The TIS indicates that a traffic signal will be warranted at the South Plaza Trail / Brenneman Trail / Retail Center Entrance intersection. The TIS concludes that a traffic signal will not be warranted at Healthy Way, Traffic Engineering, however, concludes that with the addition of the retail center traffic, the intersection could possibly meet traffic signal warrants in the future. Thus, the applicant will be required to post traffic signal bonds at the site plan submittal stage for both the Brenneman Trail and the Healthy Way intersections. WATER and SEWER: This site must connect to the City water and sewer systems. STORMWATER: The original City approved Master Storm Water Plan (MSWP) for the Brenneman Farm, prepared in 1998, includes a series of eight (8) interconnected wet ponds that ultimately discharge to the canal along the eastern boundary of the Brenneman Farm [NOTE: canal is located on southeast side of S. Plaza Trail, between the currently developing residential area and the Timberlake neighborhoods]. One of those eight ponds, Pond #7, was anticipated along the South Plaza Trail frontage on the commercial property. After going through conceptual planning for the commercial tract, however, it was quickly realized that the pond as shown on the original City approved MSWP would have to be relocated toward the rear of the property in order to achieve the goals of the development. It also became evident that the proposed pond was no longer an amenity since it was relocated to the rear of the development. The 1998 SWM Plan, however, showed another proposed small stormwater pond (Pond #3) northeast of the Bon Secours Property on the portion of the Brenneman Farm zoned Office along South Plaza Trail. From an amenity perspective, it was concluded that a single large pond on the Office property in lieu of two small ponds located on either side of the existing pond on the Bon Secours parcel is the best alternative and will provide the best opportunity to create an amenity using the stormwater ponds. Consequently, it was concluded that Pond #7 should be combined with Pond #3 to provide for the needed storage volume requirements stated in the City approved MSWP. Thus, stormwater for the subject retail development will be piped to this combined pond, which will be constructed to the northeast behind the existing Bon Secours medical facility. The result will be a single larger pond that provides a storage volume equal to or greater than that anticipated with Pond #7 and Pond #3 in the 1998 MSWP. CH&B Agenda Item 1 Page 4 The ponds that make up the Brenneman Farm pond system all have the same normal water surface elevation and are connected by submerged stormwater pipes such that the storage volume (volume in the pond above the normal water surface) provided in the pond system for runoff during storm events is shared for the entire Brenneman Farm development. The interconnected pipe and pond system on the Brenneman Farm is contained within a Public Drainage Easement. The MSWP was designed to establish basic parameters by which the future development should be based. Since the relocation of Pond #7 from the commercial parcel to the office parcel maintains the available storage volume for the runoff from the entire Brenneman Farm development, the proposed change will not significantly impact the existing or future developments on the Brenneman Farm. In addition, because the existing pipe and pond system is within a public drainage easement, no further legal arrangements are needed to allow a connection to the system. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this conceptual site plan and building renderings with the conditions below. Evaluation: As noted at the outset of this report, this request is not a change of zoning for the site to allow the shopping center, as the site was already rezoned for that purpose in 2003. Moreover, the site has been designated as commercial since 1971 as part of a PUD (later PD -1-11) Planned Development Land Use Plan for the Brenneman Farm. This current request is for approval of the plan of development for the site, as required by the proffers of the 2003 rezoning. At the time of that rezoning, neither a concept plan for the site layout nor elevation drawings for the buildings were available. Thus, the applicant proffered the following: The Property shall not be developed until an application has been submitted for approval and acted upon by City Council in a timely manner with respect to a conceptual site plan addressing the design elements relating to the site, buildings, parking areas, landscaping and pedestrian and vehicular access. Thus, the specific purpose of this request is for approval of the design of the site, buildings, parking, landscape plantings, and pedestrian and vehicle access to and from and within the site. Staff concludes that the submitted plans provide evidence that the retail center will be of high quality, consistent with the high quality of design established by the existing retail, residential, educational, office and institutional uses surrounding the site. The site and building designs are also consistent with the provisions of the retail design regulations contained within the City Zoning Ordinance. CONDITIONS 1. The site shall be developed in substantial conformance with the concept plan entitled "Brenneman Farm Retail, Master Plan, Option J", dated August 30, 2007, submitted to and on file with the Department of Planning. 2. The site shall be landscaped in substantial conformance with the concept plan entitled "Brenneman Farm Retail, Conceptual Planting Plan, Option X, dated August 15, 2007, submitted to and on file with CH&B Agenda Item 1 Page 5 the Department of Planning. The streetscape plantings and features shall consist of the plantings described on such plan and as depicted on the rendering entitled "Conceptual Perspective, October 12, 2006", by Hines Design, submitted to and on file with the Department of Planning. 3. The architectural design elements, exterior material finishes, and exterior colors of all buildings located on the site shall be substantially as shown on the renderings submitted to and on file with the Department of Planning. 4. The primary identification signs for the development shall be located at the points shown on the plan described in Condition 1. Such signs shall be monument -style and shall be substantially as depicted on the rendering entitled "Conceptual Perspective, October 12, 2006", by Hines Design, submitted to and on file with the Department of Planning. In no case, however, shall signage for the site exceed the requirements of the City Zoning Ordinance. 5. Identification signs for the individual businesses within the buildings shown on the plan described in Condition 1 shall be located on the buildings substantially as shown on the renderings submitted to and on file with the Department of Planning. There shall be no neon signs or neon accents installed on any wall area of the building, on or within any windows and / or doors, awnings, light poles, or any other portion of the site. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. 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. CH&B Agenda Item 1 Page 6 t ' "Who x ,4 LINK UA MT s rr: r PROPOSED SITE PLAN CH&B Agenda Item I Page 8 PROPOSED LANDSCAPE PLAN CH&B Agenda Item 1 Page 9 PROPOSED BUILDING RENDERING CH&B Agenda Item 1 Page 10 PROPOSED iRENDERING CH&B Agenda Item 1 Page 11 RENDERING OF PROPOSED STREETSCAPE TREATMENT CH&B Agenda Item 1 Page 12 PROPERTY OWNER Dt +CLosuitIf: If the protiery owner is a CORPORATION- list all officers of [ase Corporation below:f,1=ch list if nrcrssor ) if the property owner is a:PARTi MHIP, FIRM, or other UNINCtDRPOR.AT 3 ORGANIZATION, list ai`l .miters or partmrs iti the organization below-: (Arta)' list V necesszrn 71 Check here if the property awner is NOT s corporation, partnership, fi r a, or other staincorporatod orgarizatsa,fl. df t%e applicant is not ate current owner of the property, complete the Applicant &Vrlvsure section below: APPLICA'N'T DISCLOSURE If ... appficant :s : CC3I2I'Q1 1TIG 1, i:st all cfjI e, of the Co�sY�r xaaa ^ .o :: I i,tuc j, list i nccessar} if ti._ aLmEcant is a PARTNERSHIP. FIRIM, or other UNINCGRPOR `,rm ORGANIZATION, ON, lis: ai ri e^i or nae^ers in the organization he ou A,,,uxh s. if 71 Chtti.:fere if the applicant is NOT a aarpor ".iar, pa ,:i—hip, :ia ai, r ani r rirtca Donate i arg<ariization. CFRTTFICATIONti 1 eerti; , that the information contained herr°in is tate and accurate. CH&B Agenda Item I Page 13 DISCLOS STATEMENT , ,applicant's Name List All Current Property Owners. PROPERTY OWNER Dt +CLosuitIf: If the protiery owner is a CORPORATION- list all officers of [ase Corporation below:f,1=ch list if nrcrssor ) if the property owner is a:PARTi MHIP, FIRM, or other UNINCtDRPOR.AT 3 ORGANIZATION, list ai`l .miters or partmrs iti the organization below-: (Arta)' list V necesszrn 71 Check here if the property awner is NOT s corporation, partnership, fi r a, or other staincorporatod orgarizatsa,fl. df t%e applicant is not ate current owner of the property, complete the Applicant &Vrlvsure section below: APPLICA'N'T DISCLOSURE If ... appficant :s : CC3I2I'Q1 1TIG 1, i:st all cfjI e, of the Co�sY�r xaaa ^ .o :: I i,tuc j, list i nccessar} if ti._ aLmEcant is a PARTNERSHIP. FIRIM, or other UNINCGRPOR `,rm ORGANIZATION, ON, lis: ai ri e^i or nae^ers in the organization he ou A,,,uxh s. if 71 Chtti.:fere if the applicant is NOT a aarpor ".iar, pa ,:i—hip, :ia ai, r ani r rirtca Donate i arg<ariization. CFRTTFICATIONti 1 eerti; , that the information contained herr°in is tate and accurate. CH&B Agenda Item I Page 13 Item #1 CH&B Associates, L.L.P. Approval of Conceptual Site Plan Northeast corner of Princess Anne Road and South Plaza Trail District 2 Kempsville September 12, 2007 CONSENT Barry Knight: Our next portion of the agenda will be the consent items. I'll let the Vice Chair handle this portion. Janice Anderson: Thank you Mr. Chairman. This afternoon we have 13 items on the consent agenda. The first item is agenda item 1. The application of CH&B Associates, L.L.P. This is an application for approval of a site plan addressing the development of commercial property. It is located on the northeast corner of Princess Anne Road and South Plaza Trail. It has five conditions. The application is in reference to proffers that were approved by the City of Virginia Beach Council on September 9, 2003. This is in the Kempsville District. Welcome Mr. Nutter. R.J. Nutter: Thank you very much Ms. Anderson. It is a pleasure to be here. For the record, my name is R.J. Nutter. I'm an attorney representing the applicant. We appreciate being on the consent agenda. I appreciate your consideration during the early morning session. The revised five conditions are fully acceptable to us. I would also like to state for the record, since this goes to Council, that we have met with the adjacent civic associations, the Catholic church and Bon Secours. All of them wrote letters in support. I have left a copy of those for Ed for the file. Thank you very much. Janice Anderson: Thank you Mr. Nutter. Is there any objection to this agenda item being placed on the consent agenda? I see none. The Chairman has asked Henry Livas to review this application. Henry Livas: As previously stated, this is for approval of a conceptual site plan for a commercial shopping center located at the northeast corner of Princess Anne Road and South Plaza Trail. This site was rezoned to allow for a shopping center in September 2003. At the time of the rezoning, neither a concept plan site layout nor elevation drawings for the buildings were available. Thus the applicant proffered that the property shall not be developed until an application has been submitted for approval. Thus, the specific purpose of this application is to review the design of the site, buildings, parking, landscape plans, pedestrian and vehicle access to and from within the site. A submitted concept plan depicts a traditional strip type shopping center approximately 214,417 square feet, anchored by a grocery store about 50,000 square feet. The Planning staff recommended approval of the conceptual site plan and building renderings. However, they did have some problems with the two accesses off of Princess Anne Road, but after consulting with Traffic Engineering, they determined that it is not as critical on that Item #1 CH&B Associates, L.L.P. Page 2 section of Princess Anne Road as other sections, and the Planning Commission has decided that two access sites would be appropriate; so, therefore, we eliminated condition 6. Therefore, we now recommend approval of the conceptual site plan. Janice Anderson: Thank you Mr. Livas. Mr. Chairman, I would like to make a motion to approve agenda item 1. Barry Knight: There is a motion on the floor. There is a second by Gene Crabtree. Ms. Katsias. Kathy Katsias: Mr. Chairman, I have to abstain from item 1. My company does business with the applicant. Therefore, I will not be able to vote on it. Barry Knight: Thank you. David Redmond: Mr. Chairman? Barry Knight: Yes, Mr. Redmond. David Redmond: I should also state with regard to CH&B. My company provides work for that applicant. I do not. However, on the advice of the City Attorney, I need only to disclose that fact. I do not believe it will affect me in any way from exercising judgment on it. Barry Knight: Mr. Weeden. Have you noted Ms. Katsias' abstention? There is a motion on the floor by Jan Anderson and seconded by Gene Crabtree to approve item 1. I'll call for the question. AYE 10 NAY 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE ABS 1 ABSENT 0 "490 Ed Weeden: By a vote of 10-0, with the abstention so noted, the Board has approved item 1 for consent. Princess Anne Square (& Bellamy Condominium Association 525 S.'Independence Blvd., Suite 200 Virginia Beau, VA 23452 August 15, 2007 James M. Caplan 500 E'Main Street Norfolk, VA 2351:0 Re: Brenneman Farm Retail Mr_ Caplan: The Board of Directors of the Princess Anne Square at Bellamy Condominium Association reviewed the site plan and pictures of the planned Brenneman Farm Retail Shopping Center to be located at the intersection of Princess Anne Road and South Plaza Trail in Virginia Beach at their regular Board meeting on Tuesday,. August 14, 2007. This center is well devised with a fantastic anchor tenant (Ha;iis Teeter), terrific landscaping and it Will be a great shopping convenience and asset to the entire Princess Anne Square community when open for operation in early 2009, We appreciate your willingness to share this information with the association and we stand in full support of the plan as presented. Not to be on the selfish side, we are really looking forward to the installation. of the traffic, light at the intersection of South Plaza 'frail and Brenneman Drive. This will certainly make ingress and egress to our community much safer not to mention making the possibility of walking to the shopping area a real_ possibility. You have the full support of the Princess Anne Square at Bellamy Condominium Association as the pians for this project move forward. Sincerer avid Hicks, President Princess Anne Square at Bellamy Condominium Association Gables at Bellamy Condominium Association 525 S. Independence Blvd., Suite 200 Virginia Beach, VA 23452 vw I - Cq Wb August 30; 2007 James M. Caplan 500 E. Main Street Norfolk, VA 23510 Re: Brenneman Farm Retail Mr- Caplan: The association manager for the Gables at Bellamy Condoniirtium Association shared the information (site: plan,. etc.) regarding the soon to be built Brenneman Farm Retail Shopping Center with the Board of Directors at their regular Board meeting on Tuesday, August 28, 2007. The anchor tenant, Harris Teeter, will certainly be a welcome addition to the existing merchants in this area of Kempsville_ If these plans are adhered to, the upscale nature of the structures with the abundance of landscaping will be an asset to the entire Gables at Bellamy community. Your willingness to share this information with the association is greatly appreciated. Too many times things are designed, built and opened with neighboring communities only guessing until very late in the process. This `sneak preview' was a testament to: your role as a developer in the Tidewater area. You have the fbll support of the Gables at Bellamy Condominium Association as the plans for this project move forward. Sincerely, Roy Hughes, President Gables at Bellamy Condominium Association Modification of Proffers Item V-M.S. PLANNING Voting: 9-1 (By Consent) Council Members Voting Aye: -38 - ITEM # 56028 William R. "Bill" DeSteph, Harry E. Henley, Vice Mayor Louis R. Jones, Rosemary Wilson and James L. Wood Council Members Voting Nay: Reba S. McClanan Council Members Absent: Mayor Meyera E. Oberndorf Diezel, Robert M. Dyer, Barbara M. John E. Uhrin, Ron A. Villanueva, January 23, 2007 -37 - Item V -M.5. PLANNING ITEM # 56027 Upon motion by Councilman Uhrin, seconded by Councilman Dyer, City Council ADOPTED Ordinances upon application of BECO DEVELOPMENT, L.L.C. for a Conditional Change of Zoning and Conditional Use Permit: ORDINANCE UPON APPLICATION OF BECO DEVELOPMENT, L.L.C. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROMB-2 TO CONDITIONAL A-36 Z01071272 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Beco Development, L.L.C. for a Change of Zoning District Classification from B-2 Community Business District to Conditional A-36 Apartment District on property located at 6226 Providence. Road (GPIN 1456335185). DISTRICT I — CENTER VILLE The following condition shall be required. - A ND, 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit court and is hereby made a part of the record. ORDINANCE UPON APPLICATION OF BECO DEVELOPMENT, L.L.C. FOR A CONDITIONAL USE PERMIT FOR SENIOR HOUSING R010734202 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Beco Development, L.L.C. for a Conditional Use Permit for senior housing on property located at 6226 Providence Road (GPIN 1456335185). DISTRICT I — CENTERVILLE These Ordinances shall be effective in accordance with Section 107 (1) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-third of January Two Thousand Seven January 23, 2007 f� s CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of College Park, L.L.C. for a Modification of Conditions for a request approved by City Council on January 23, 2007. Property is located at 6226 Providence Road (GPIN 1456335185). DISTRICT 1 — CENTERVILLE. MEETING DATE: October 9, 2007 ■ Background: The Conditional Rezoning from B-2 Commercial District to Conditional A-36 Apartment District was approved by the City Council on January 23, 2007. A Conditional Use Permit for Senior Housing was also approved in conjunction with the rezoning request. The applicant rezoned the four -acre site to Conditional A-36 for the development of up to 144 senior housing, independent -living units within two (2) buildings. The applicant now desires to cover 44 of the parking spaces with a carport type structure and to add a maintenance structure. Neither the covered parking nor the maintenance structure was depicted on the original submittal. It is, therefore, necessary to modify the proffered plan from the original rezoning to allow those structures. ■ Considerations: At the time of the rezoning proposal, the applicant was unaware of the desire among potential residents for covered parking. The layout of the apartment buildings is not changing. The modifications to the plan are minimal in scope and will not negatively impact the proposal for senior housing apartments. The Planning Commission placed this item on the consent agenda because the modification to the proffered plan is minimal, the addition of the covered garages will provide an additional amenity to the development, and there was no opposition to the proposed changes. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes College Park, L.L.C. Page 2 of 2 Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: �/�-� COLLEGE PARK, LLC Agenda Item 4 September 12, 200 Public Hearing Staff Planner: Carolyn A.K. Smith REQUEST: Modification of Proffers from the Conditional Change of Zoning from B-2 to Conditional A - 36 granted by the City Council on January 23, 2007. ADDRESS / DESCRIPTION: Property located on the north side of Providence Road, west of Indian River Road at 6226 Providence Road GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14563351850000 3 — CENTERVILLE 4.0 acres The Conditional Rezoning from B-2 Commercial District to SUMMARY OF REQUEST Conditional A-36 Apartment District was approved by the City Council on January 23, 2007. A Conditional Use Permit for Senior Housing was also approved in conjunction with the rezoning request. The applicant rezoned the four -acre site to Conditional A-36 for the development of up to 144 senior housing, independent -living units within two (2) buildings. Senior housing is defined as facilities with dwelling units where at least one (1) family member is 62 years of age or older. The parking requirement is modified for these facilities to only one (1) space per independent dwelling unit. It is the applicant's intent to cover 44 of the parking spaces with a carport type structure and to add a maintenance structure. Neither the covered parking nor the maintenance structure was depicted on the original submittal. It is, therefore, necessary to modify the proffered plan from the original rezoning to allow those structures. The Conditional Rezoning has four (4) proffers: PROFFER 1: When the property is developed, it shall be substantially in accordance with the Preliminary Site Plan entitled "COLLEGE SQUARE SENIOR APARTMENTS, 6226 PROVIDENCE ROAD" dated 08/02/06, prepared by Engineering Services, Inc., which has been exhibited to the Virginia Beach City Council and COLLEGE PARK Agenda Item 4 Page 1 is on file with the Virginia Beach Department of Planning ("Site Plan"). PROFFER 2: When the property is developed, the residential structures depicted on the Site Plan shall have the architectural design and utilize the building materials substantially as depicted and designated on the exhibit entitled, "PROVIDENCE ROAD SENIOR LIVING UNITS, CITY OF VIRGINIA BEACH, VIRGINIA," dated 08/22/06, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department ("Elevations"). PROFFER 3: When the property is developed, there will be no more than one hundred forty-four (144) independent senior housing units provided within the building depicted on the Site Plan. PROFFER 4: 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. Proffer 1 tied the development to a specific plan that did not consider covered parking or a maintenance building on the property. As such, the applicant is required to gain approval for the proposed modifications shown on the plan. The elevation drawing for the maintenance building depicts a mix of vinyl and brick on the exterior with one (1) garage door and a pedestrian door. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Undeveloped vacant site SURROUNDING LAND North: . Old Providence Road, single family dwellings/ R-10 Residential USE AND ZONING: District South: . Providence Road, single-family dwellings / R-7.5 Residential District East: Vacant / B-2 Community Business District West: • Multifamily/ A-18 Residential District NATURAL RESOURCE AND The property is within the Chesapeake Bay watershed. There do not CULTURAL FEATURES: appear to be any significant environmental features on the site. AICUZ: The site is in an AICUZ of less than 65 dB Ldn surrounding NAS Oceana. COLLEGE PARK Agenda Item 4 Page 2 IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Providence Road in the vicinity of this application Is considered a four (4) lane divided minor urban arterial. The MTP proposes a four (4) lane, divided facility with a bikeway within a 100 foot right-of-way. No Capital Improvements are slated for this area. Old Providence Road is considered a two (2) lane, undivided local street. No Capital Improvements are slated for this area. Traffic Engineering staff indicated that while the applicant's engineer has agreed to provide a left turn lane, it is not depicted on the proffered plan. In addition, full right-of-way improvements along Old Providence Road will be required. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Providence Road 17,843 ADT 14,800 ADT 1 (Level of Service "C") — 22,800 ADT Existing Land Use — 512 ADT Proposed Land Use -No (Level of Service "D") change A Dail Tri s verage y p Y as defined by 147 senior housing units WATER: There is an existing 5/8 -inch water meter that will need to be upgraded for this development. There is an existing 16 -inch water main in Providence Road and an existing 8 -inch water main in Old Providence Road. SEWER: This site currently is connected to City sewer. Analysis of Pump Station #425 and the sanitary sewer collection system is required to ensure future flows can be accommodated. There is an existing 8 -inch City sanitary sewer gravity main in Old Providence Road. There is an 8 -inch City sanitary sewer gravity main and a 16 -inch City sanitary sewer force main located in Providence Road. There is also an existing 36 -inch HRSD force main that crosses through the property paralleling Providence Road. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the submitted proffers. The proffers are provided below. Comprehensive Plan: The Comprehensive Plan recognizes this area as being within the Primary Residential Area. The land use planning policies and principles for the Primary Residential Area focus on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. Page 91 of the Primary Residential Area chapter of the Comprehensive Plan states "Limited commercial or institutional activities providing desired goods or services to residential neighborhoods may be considered acceptable uses on the edge of established neighborhoods provided effective measures are taken to ensure compatibility." COLLEGE PARK Agenda Item 4 Page 3 Evaluation: The addition of both 44 covered parking spaces and a maintenance building is acceptable. At the time of the rezoning proposal, the applicant was unaware of the desire among potential residents for covered parking. The layout of the apartment buildings is not changing. The modifications to the plan are minimal in scope and will not negatively impact the proposal for senior housing apartments. Staff is recommending approval of the modified proffer agreement as described below. 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: Proffer number "1" in the 2006 Proffers is amended to read: When the property is developed, it shall be substantially in accordance with the Site Layout Plan entitled "The Renaissance Senior Apartments, 6226 Providence Road, GPIN 1456-33-5185," dated 03/19/07, prepared by Engineering Services, Inc., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Site Plan"). PROFFER 2: When the Property is developed, the 44 parking spaces designated on the Site Plan as "Covered Spaces, TYP" shall be improved and landscaped substantially as depicted and described on the exhibited entitled, "The Renaissance Senior Apartments With Covered Parking," dated June 28, 2007, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. PROFFER 3: All the terms conditions, covenants, servitudes and agreements set forth in the 2006 Proffers recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument #200701250000118060, save and except, Proffer 1, as specifically amended and modified herein, shall remain in force and effect, running with the Property and binding upon the Property and upon all parties and persons claiming under, by or through the Grantor, its heirs, personal representatives, assigns, tenants, and other successors in interest or title. STAFF COMMENTS: The proffers listed above are acceptable. The City Attorney's Office has reviewed the proffer agreement dated June 29, 2007, 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 and Standards. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. COLLEGE PARK Agenda Item 4 Page 4 AERIAL OF SITE LOCATION COLLEGE PARK Agenda Item 4 Page 5 APPROVED SITE PLAN COLLEGE PARK AgendaItem4 Page 6 PROPOSED SITE PLAN COLLEGE PARK Agenda Item 4 Page 7 CARPORT - COLLEGE PARK Agenda Item 4 Page 8 CARPORT RENDERING COLLEGE PARK Agenda item 4 Page 9 ..$_s:.Sn. ,�aaiaa:.as.Fxxs.4sr�#ax, bE i .� 3 fit. 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Modification of Conditions 6226 Providence Road District 1 Centerville September 12, 2007 CONSENT Janice Anderson: The next matter is agenda item 4. It is the application of College Park, L.L.C. This is for Modification of Conditions relating back to a change of zoning that was approved by Council in January 23, 2007 on property located at 6226 Providence Road in the Centerville District. Mr. Bourdon? Eddie Bourdon: Thank you Madam Secretary. Mr. Chairman, again for the record, Eddie Bourdon, I'm a Virginia Beach attorney representing College Park, L.L.C. We appreciate this item being placed on the consent agenda. Obviously, our proffers are acceptable to us. Thank you. Janice Anderson: Thank you. Is there any objection to this matter being placed on the consent agenda? I see none. The Chairman has asked Al Henley to review the application. Al Henley: Thank you. The property is located on the north side of Providence Road, west of Indian River Road at 6226 Providence Road. The conditional rezoning from B-2 Commercial District to Conditional A-36 Apartment District was approved by the Council on January 23, 2007. A Conditional Use Permit for the senior housing was also approved in conjunction with the rezoning request. The applicant rezoned the four -acre site to Conditional A-36 for the development of up to 144 senior housing, independent - living units within two (2) buildings. Senior housing is defined as facilities with dwelling units were at least one (1) family member is 62 years of age or older. The parking requirement is modified for these facilities to only one (1) space per independent unit. It is the applicant's intent to cover 44 of the parking spaces with a carport type structure and to add a maintenance structure. Neither the covered parking nor the maintenance structure was depicted on the original submittal. It is, therefore, necessary to modify the proffered plan from the original rezoning to allow these structures. Staff recommended approval of this item. Therefore, the Planning Commission recommend that this item be placed on the consent agenda with the submitted proffers. Thank you. Janice Anderson: Thank you Mr. Henley. Mr. Chairman, I would like to make a motion to approve agenda item 4. Barry Knight: There is a motion on the floor by Jan Anderson and seconded by Gene Crabtree to approve agenda item 4. I'll call for the question. Item #4 College Park, L.L.C. Page 2 AYE 11 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE NAY 0 ABS 0 ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has approved item 4 for consent. In Reply Refer To Our File No. DF -6842 TO: Leslie L. Lilley FROM: B. Kay Wilsog CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: September 26, 2007 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; College Park, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 9, 2007. 1 have reviewed the subject proffer agreement, dated June 29, 2007 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/als Enclosure cc: Kathleen Hassen FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS COLLEGE PARK, L.L.C., a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH THIS AGREEMENT, made this 29th day of June, 2007, by and between COLLEGE PARK, L.L.C., a Virginia limited liability company, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of that certain parcel of property located in the Centerville District of the City of Virginia Beach, Virginia, containing a total of approximately 4.00 acres as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference, which parcel is referred to herein as the "Property"; and WHEREAS, the Grantor has initiated a modification to a conditional amendment to the Zoning Map of the City of Virginia Beach, by petition addressed to the Grantee so as to modify conditions to the Zoning Classification of the Property; and WHEREAS, the Grantor has requested Grantee to permit this modification of the previously proffered Covenants, Restrictions and Conditions dated June 25, 2oo6 (hereinafter "2006 Proffers"), to reflect amendments applicable to the land use plan on the Property; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and GPIN: 1456-33-5185 PREPARED BY: SYKES. $OURDON, UM ARPRN & LEVY. P.C. 1 PREPARED BY: M SYK£S, BOURDON, FM AHERN & LEVY. P.C. WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the proposed modification of conditions to the zoning, 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 resolve the situation to which the 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 modification to the existing zoning conditions with respect to the Property, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted, which conditions have a reasonable relation to the proposed modification and the need for which is generated by the proposed modification. NOW, THEREFORE, the Grantor, 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 covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. Proffer number "i" in the 2006 Proffers is amended to read: When the Property is developed, it shall be substantially in accordance with the Site Layout Plan entitled "THE RENAISSANCE SENIOR APARTMENTS, 6226 Providence Road, GPIN 1456-33-5185", dated 03/19/07, prepared by Engineering Services, Inc., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Site Plan"). 2. When the Property is developed, the 44 parking spaces designated on the Site Plan as "COVERED SPACES-TYP" shall be improved and landscaped substantially as depicted and described on the exhibit entitled "RENAISSANCE SENIOR APARTMENTS E PREPARED BY: SYKES. BOURDON. RM AHERN & LEVY. P.C. WITH COVERED PARKING", dated June 28, 2007, which has been exhibited to the Virginia Beach City Council and is on file with the Department of Planning. 3. All of the terms, conditions, covenants, servitudes and agreements set forth in the 2oo6 Proffers recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument #20070125000ii8o6o, save and except, Proffer i, as specifically amended and modified herein, shall remain in force and effect, running with the Property and binding upon the Property and upon all parties and persons claiming under, by or through the Grantor, its heirs, personal representatives, assigns, tenants, and other successors in interest or title. The Grantor further covenants and agrees that: All references hereinabove to the A-36 Apartment District and to the requirements and regulations applicable thereto refer to the Comprehensive 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 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. (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 3 PREPARED BY: SYKES. BOURDON, IM ARERN & LEVY. R.C. 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. 51 WITNESS the following signature and seal: Grantor: College Park/,`�Z..C., a Virginia limited liability Member STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: The foregoing instrument was acknowledged before me this 2nd day of July, 2007, by Eric G. Olson, Member of College Park, L.L.C., Grantor. My Commission Expires: August 31, 2010 PREPARED BY: M SYKES, BOURDON, ON AHERN & LEVY. P.0 W Notary public V EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, lying, situate and being in the City of Virginia Beach, Virginia, containing 4 acres, as shown on that certain plat (the "Plat") entitled, "Subdivision of Property for COLEMAN FARMS, INC., Kempsville Borough — Virginia Beach, Virginia Scale: 1" = ioo' December, 1976", made by John E. Sirine and Associates, Ltd., Surveyors & Engineers, Virginia Beach, Virginia; then Plat is intended to be recorded contemporaneously herewith in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia; said property being more particularly bounded and described with reference to the Plat as follows: To ascertain the point of beginning (the "Point of Beginning"), state at the southwest intersection of (Old) Providence Road and Providence Road; thence N 79° 36'39" W along the southern line of (Old) Providence Road a distance of 166.28 feet to a point; thence continuing along said southern line of (Old) Providence Road N 78° 45' 31" W a distance of 336.88 feet to a point; thence continuing along said southern line of (Old) Providence Road N 760 12' 24" W a distance of 183.93 feet to a point; thence continuing along said southern line of (Old) Providence Road, along a curve to the right having a radius of 500 feet, an arc distance of 18.24 feet to the Point of Beginning; thence from the Point of Beginning S 16° 48' 55" E a distance of 652.39 feet to a point in the northern line of Providence Road; thence along the northern line of Providence Road, along a curve to the right having a radius of 931.42 feet, an arc distance of 378.40 feet to the property designated as Banbury Lake Village Section 1 on the Plat; thence the following courses and distances along said Banbury Lake Village Section 1: N 100 53' 30" W a distance of 8o feet to a point, N 130 14'48" E a distance of 147.05 feet to a point, N 03° 55'41" W a distance of 130.73 feet to a point, N 870 22'49" E a distance of 41.44 feet to a point, N 030 53'41" W a distance of 377.15 feet to a point, N 25° 29' io" W a distance of 31.65 feet to a point, N 26° W59" E a distance of 65.34 feet to a point in said southern line of (Old) Providence Road; thence continuing along said southern line of (Old) Providence Road S 630 43' oi" E a distance of 36.93 feet to a point; thence continuing along said southern line of (Old) Providence Road, along a curve to the left having a radius of 500 feet, an arc distance of 9o.75 feet to the Point of Beginning. GPIN: 1456-33-5185 ModitionstoProffers/CollegePark/TheRenaissance/Proffer PREPARED BY: MSYVIS, POUF DON. A-UIl2N & LEW, PC R -32 - Item V-F.1.g. PUBLIC HEARING PLANNING ITEM # 29269 (Continued) 5. The utilization of best management practices for controlling stormwater runoff which are reasonably applicable to the development of the site and in keeping with the recommendations for the proposed Back Bay/North Landing River Management District. 6. Category I screening shall be installed along the boundary of the proposed church building site adjacent to the residential sites. 7. In accordance with the City's Master Street and Highway Plan, a dedication is required along the frontage of Princess Anne Road to provide for a scenic buffer. Approximately 15 feet of dedication will be required. The exact dedication will be determined during detailed site plan review. This Ordinance shall be effective upon the date of adoption. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty- fifth day of April, Nineteen Hundred and Eighty-eight. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Robert E. Fentress, Harold Heischober, Barbara M. Henley, Mayor Robert G. Jones, Reba S. McClanan, John D. Moss, Vice Mayor Meyera E. Oberndorf, Nancy R. Parker and John L. Perry Council Members Voting Nay: None Council Members Absent: None April 25, 1988 - 31 - Item V-F.1.R. PUBLIC HEARING PLANNING ITEM # 29269 Pastor Ray Hatcher, 1141 Warner Hall Drive, Phone: 427-5088, represented the applicant Dudley E. Martin, Phone: 471-3502, represented the applicant Upon motion by Councilwoman McClanan, seconded by Councilman Baum, City Council ADOPTED an Ordinance upon application of ST. MICHAEL LUTHERAN CHURCH for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF ST. MICHAEL LUTHERAN CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHURCH R04881138 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of St. Michael Lutheran Church for a Conditional Use Permit for a church on the northwest side of Princes Anne Road, 103 feet northeast of Huckleberry Trail on Parcel One, Subdivision of Property of Alot Corporation. Said parcel contains 3 acres. PRINCESS ANNE BOROUGH. The following conditions shall be required: 1. A dedication of right-of-way for a right turn lane is required for the site from Princess Anne Road. 2. Improvements to the right turn lane may be required with future expansion of the church facilities. The requirement of turn lane construction will be determined during future detail site plan review. This determination will be based on the type and extent of the expansion and the additional need generated by the expansion. 3. Improvements for two left turn lanes may be required with future expansion of the church facilities to provide for safe U-turn movements. The required left turn lanes will be located eastbound on Princess Anne Road at its intersection with General Booth Boulevard and westbound on Princess Anne Road at its intersection with Huckleberry Trail. The requirement for turn lane construction will be determined during future detail site plan review. This determination will be based on the type and extent of the expansion and the additional need generated by the expansion. 4. As an alternative to the left turn lane improvements, it is suggested that the representative of the church negotiate rights of ingress and egress with the owners/developers of the adjacent property located to the northeast. If and when this property is developed and appropriate City ordinances allow for the ingress and egress of the church related traffic across the property, the church related traffic will be afforded access to the traffic signal at General Booth Boulevard and Princess Anne Road, thereby relieving the need for left turn lanes for U-turn purposes. Maa�tIto Scar St. Michael's Lutheran Church Modification of Conditions CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of St. Michael Lutheran Church for a Modification of Conditions for a request approved by City Council on April 25, 1988. Property is located at 2208 Princess Anne Road (GPIN 2404952881). DISTRICT 7 — PRINCESS ANNE. MEETING DATE: October 9, 2007 ■ Background: Modifications to the original 1988 Use Permit allowing various expansions and a preschool were approved by the City Council on October 12, 2004, August 9, 2005, and August 8, 2006. ■ Considerations: The applicant now requests a modification of the Use Permit to allow the enclosure of an existing storage / picnic shelter to be used year round for church classroom space. This enclosure of the existing shelter will not increase the number of children at the preschool. The new enclosed space will not be rented out or leased for any outside activities. The modification is reasonable and will not change the consistency of the original use permit with the Comprehensive Plan recommendations for this area. The use remains compatible with the adjacent neighborhood as well business areas. The Planning Commission placed this item on the consent agenda because the request will not impact parking, membership, activities at the church or the surrounding residential neighborhood, and there was no opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. All conditions with attached to the Modifications of the Conditional Use Permit granted by the City Council August 8, 2006 remain in affect. 2. The exterior of the proposed enclosed shelter shall be designed to be compatible with the existing exterior materials on the existing building on the site. St. Michael Lutheran Church Page 2of2 ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department j City Manager: I,— Ir ST MICHAEL'S LUTHERAN CHURCH Agenda Item 10 September 12, 2007 Public Hearing Staff Planner: Karen Prochilo Map„��1? Jt. Alichae[ s Lutheran ChuTGn REQUEST: Moaiac;,6w W COW, w� Modification of the Conditional Use Permit approved by the City Council on October 12, 2004 for a church expansion, modified August 9, 2005 and August 8, 2006. ADDRESS / DESCRIPTION: Property located at 2200 Princess Anne Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24049631840000 7 — Princess Anne 123,658 square feet or 2.819 acres SUMMARY OF REQUEST A Modification to a Conditional Use Permit for a church expansion was approved by city Council on October 12, 2004. The conditions associated with this Modification to a Conditional Use Permit for a church expansion are as follows. 1. All conditions attached to the Conditional Use Permit granted by the City Council on April 25, 1988 remain in affect. 2. The site shall be developed in substantial conformance with the submitted plan entitled "Preliminary Site Layout for St. Michael Lutheran Church Building Addition Virginia Beach Virginia" prepared by NDI, L.L.C. Basgier and Associates Division, dated June 14, 2004. 3. There shall be no encroachment into the scenic buffer along Princess Anne Road, previously dedicated to the City of Virginia Beach. 4. The architectural design elements and exterior building materials shall be developed in substantial conformance with the submitted plan entitled "Alterations and Additions to St. Michael Lutheran Church Building 2208 Princess Anne Road Virginia Beach, Virginia" prepared by Daugherty & Associates, dated February 10, 2004. ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 1 5. The landscaping shall be developed in substantial conformance with the submitted plan entitled "Landscape Plan of St. Michael Lutheran Church Building Addition Virginia Beach, Virginia" prepared by NDI, L.L.C. Basgier and Associates Division, dated February 20, 2004. 6. A maximum of seventy (70) children may be cared for at this site. 7. The hours of operation shall be limited to Monday through Friday 6:30 A.M. until 6:00 P.M. City Council approved a request to modify previous conditions on August 9, 2005. The following are the modified conditions: 1. All conditions with the exception of Number 6 attached to the Modification of Conditional Use Permit granted by the City Council on October 12, 2004 remain in affect. 2. Condition Number 6 of the October 12, 2004 Modification of Conditional Use Permit is deleted and replaced with the following: A maximum of 150 children in the range from two and one half through twelve years may be cared for at this site. 3. Improvements for right turn lane are required within two years of this Conditional Use Permit. City Council approved a request to modify previous conditions on August 8, 2006. The following are the modified conditions: 1. All conditions with the exception of Condition Number 2 and Condition Number 3 attached to the Modification of Conditional Use Permit granted by the City Council on August 9, 2005 remain in affect. 2. Condition Number 2 of the August 9, 2005 Modification of Conditional Use Permit is deleted and replaced with the following: "A maximum of 100 children in the range from two and one half through twelve years may be cared for at this site." 3. Condition Number 3 of the August 9, 2005 Modification of Conditional Use Permit requiring a right turn lane is deleted. The applicant is now requesting permission to enclose a storage / picnic shelter to be used year round for church instruction. This enclosure of the existing shelter will not increase the number of children at the preschool. The new enclosed space shall not be rented out or leased for any outside activities. LAND USE AND ZONING INFORMATION EXISTING LAND USE: church and preschool SURROUNDING LAND North: . Single-family dwellings/ R-10 Residential District ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 2 USE AND ZONING: South: • Across Princess Anne Road is a 7-11 and office / B -1A & B-2 Community Business District East: . Medical office building / 0-1 Office District West: . Single-family dwellings / R-10 Residential District NATURAL RESOURCE AND This site does not have any significant natural resources or cultural CULTURAL FEATURES: features. AICUZ: The site is in an AICUZ of 65 dB to 70 dB Ldn surrounding NAS Oceana. The use is compatible within this AICUZ with the sound attenuation required by the Zoning Ordinance. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Princess Anne road in the vicinity of this application is a four lane divided minor suburban arterial which transitions to a two lane undivided facility just south of this site. No changes expected to result from this Modification of Conditions. WATER & SEWER: The site is already connected to City water and sewer services.. FIRE: No comments at this time. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this requested modification, as conditioned below. Comprehensive Plan: The Comprehensive Plan recognizes this site to be within the Primary Residential Area. Religious and educational services are considered supportive land uses to residential neighborhoods. Evaluation: The modification is reasonable and will not change the consistency of the original use permit with the Comprehensive Plan recommendations for this area. The use remains compatible with the adjacent neighborhood as well business areas. ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 3 CONDITIONS 1. All conditions with attached to the Modifications of the Conditional Use Permit granted by the City Council August 8, 2006 remain in affect. 2. The exterior of the proposed enclosed shelter shall be designed to be compatible with the existing exterior materials on the existing building on the site. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. 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. ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 4 AERIAL OF SITE LOCATION ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 5 (_j elter PROPOSED SITE PLAN ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 6 PHOTOGRAPH OF SHELTER ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 7 1 08/22/06 Conditional Rezoning from AG-1/AG-2 to R-20 with Granted a PD -1-12 Overlay 2 04/25/88 Conditional Use Permit for a church Granted 08/13/96 Conditional Use Permit for a preschool 08/11/98 Modification of Conditions 10/12/04 Modification of Conditional Use Permit 08/09/05 Modification of Conditional Use Permit 3 10/23/89 Conditional Rezoning from R-3 to 0-1 Granted 4 03/26/90 Conditional Rezoning from R-20 to B -1A Granted 5 11/24/98 Modification of Conditional Use Permit Granted 6 05/25/99 Conditional Rezoning from AG -1/-2 & R-20 to A-18 Granted 7 05/25/99 1 Conditional Rezoning from AG -1/-2 & R-20 to 0-1 Granted ZONING HISTORY ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 8 N011Y3rlddV SNOW9NO) 30 NOIRDMIGOW f Z W i w H Q W Ir D 0 U 0 N01Ldri'ITdd� SNOI�IWIO� 30 NOITUrlljjaoW, ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 9 G O ' 0 ` fz o to c c ZNc m `—r`u aE.vir N �.'Z 75_ o ,. � a_ _ m U _ di- :z� N01Ldri'ITdd� SNOI�IWIO� 30 NOITUrlljjaoW, ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 9 G ' ` CC W U _ N01Ldri'ITdd� SNOI�IWIO� 30 NOITUrlljjaoW, ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 9 G zN —. .. Z c o _ ` :L `. 2 �. 1, ` n: `-'+ •� ILC ,^ CL c°o - s d" CL — Y Y 0 N01Ldri'ITdd� SNOI�IWIO� 30 NOITUrlljjaoW, ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 9 ST. IIHCHAEL LUTHERAN CHL`RCH OFFICERS • President • Vice President • Secretary • Treasurer TRUSTEES Karen Mover David Bohannon Ann Walls Michelle Leach • Kenneth Allen • Jon Tamavo • Roger C. Whittaker PASTOR • John Himes ASSOCLATE PASTOR • Christopher Bowen DISCLOSURE STATEMENT ST. MICHAEL'S LUTHERAN CHURCH Agenda Item 10 Page 10 Item #10 St. Michael Lutheran Church Modification of Conditions 2208 Princess Anne Road District 7 Princess Anne September 12, 2007 CONSENT Janice Anderson: The next matter is agenda 10. It is the application of St. Michael Lutheran Church. This is for a Modification of Conditions connected to a Use Permit that was approved by Council back on April 25, 1998, on property located 2208 Princess Anne Road, in the Princess Anne District. Welcome sir. Roger Whitaker: Thank you. I'm Roger Whitaker. I'm a member of St. Michael and Director of Church Operations. We appreciate you putting us on the consent agenda today. If you have any questions, I will try to answer them. I think it is pretty simple. Janice Anderson: Okay. Thank you Mr. Whitaker. It has two conditions. Have you reviewed those? Roger Whitaker: I have. Janice Anderson: Are they acceptable? Roger Whitaker: Yes. Everything is acceptable. Janice Anderson: Thank you very much. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Gene Crabtree to review this for us. Eugene Crabtree: As Mr. Whitaker has said this is rather simple. The church has come before us a number of times in the past years for things that we have approved and City Council has approved various changes. In October 2004, there was one, August 2005, August 2006, and all of these conditions and requirements that were put on the church at that time still remain in effect. However, with this one, they just simply have a request to enclose this picnic area in order to make it a classroom that they can use for the church and expand their classroom uses. It does not impact on any parking. It doesn't impact on any additional number of church membership or activity in the neighborhood. Therefore, we thought it was a perfect item to be put on the consent agenda. Janice Anderson: Thank you Gene. Mr. Chairman, I would like to make a motion to approve agenda item 10. Item #10 St. Michael Lutheran Church Page 2 Barry Knight: There is a motion on the floor by Jan Anderson and seconded by Gene Crabtree to approve agenda item 10. I'll call for the question. AYE 11 NAY 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE ABS 0 ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has approved item 10 for consent. CUP - fora Church w F,, CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of Victorious Living Church for a Conditional Use Permit for a church on property located at 2180 McComas Way, Suite 113 (GPIN 2404977494). DISTRICT 7 — PRINCESS ANNE. MEETING DATE: October 9, 2007 ■ Background: The applicant requests a Conditional Use Permit to allow a church to be located within an office building. The office building consists of a number of suites in a condominium form of ownership. The applicant's suite is located at the southeast corner of the building. ■ Considerations: The church has services and meetings on Sundays from 9:00 a.m. until 2:00 p.m., Wednesday 6:00 p.m. until 10:00 p.m., Friday 6:00 p.m. until 9:00 p.m., and Saturday 8:00 p.m. until 12:00 p.m. There are currently two church staff members. The church's goal for the maximum number of individuals attending Sunday morning services is 150. The proposal to use this unit for a church is, as conditioned below, compatible with the other uses within this office complex and will not negatively impact neighboring properties. There are a total of 107 parking spaces located on this site. The Zoning Ordinance requires 30 parking spaces if the church's anticipated 150 individuals attend a service. As always, the parking for a church use in any retail or office complex peaks opposite of the retail or office uses. Staff concludes, therefore, that sufficient parking is available to accommodate the proposed use and the other tenants. The Planning Commission placed this item on the consent agenda, as they concluded the proposed use will not conflict with the other tenants of the office building and there was no opposition to the proposed use. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: Victorious Living Church Page 2of2 The applicant shall comply with all applicable City requirements for building codes, including fire safety and suppression, required for a change of use from commercial to a place of assembly prior to the issuance of an Occupancy Permit for this unit. This includes obtaining a Fire Inspection, a Fire Code Permit, and a Certificate of Occupancy from the Building Official's Office. 2. The number of congregants at any service shall not exceed the occupancy number for the unit as established by the City's Fire Marshall. ■ 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: VICTORIOUS LIVING CHURCH Agenda Item 9 September 12, 2007 Public Hearing Staff Planner: Karen Prochilo REQUEST: Conditional Use Permit for church. CUP - h)r d church ADDRESS / DESCRIPTION: Property located at 2180 McComas Way, Suite 113. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24049774940000 7 — PRINCESS ANNE Total Site: 2.4 acres Lease space: 4,000 square feet SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow a church to be located within an office building. The office building consists of a number of suites in a condominium form of ownership. The applicant's suite is located at the southeast corner of the building. The church has services and meetings on Sundays from 9:00 a.m. until 2:00 p.m., Wednesday 6:00 p.m. until 10:00 p.m., Friday 6:00 p.m. until 9:00 p.m. and Saturday 8:00 p.m. until 12:00 p.m. There are currently two church staff members. The church's goal for the maximum number of individuals attending Sunday morning services is 150. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Commercial - office building SURROUNDING LAND North: . Princess Anne recreational facility, public library, day care USE AND ZONING: center, and after-school learning center facility / R-20 Residential District South: . Across McComas Way are offices / 0-2 office District East: . Mini -warehouse facility / B -1A Limited Business District VICTORIOUS LIVING CHURCH Agenda Item 9 Page 1 West: . Princess Anne recreational facility, public library, day care center and after-school learning center facility / R-20 Residential District NATURAL RESOURCE AND There are no known significant natural resources or cultural features on CULTURAL FEATURES: this site as it is almost entirely impervious. AICUZ: The site is in an AICUZ of 65 dB to 70 dB DNL surrounding NAS Oceana. The use is compatible within this AICUZ. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): McComas Way in the vicinity of this application is a two-lane local street. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic McComas Way N/A 3,700 ADT 190 Peak Existing Land Use — Hour (Level of Service "C") 1,320 ADT 8,700 ADT' 460 Peak Proposed Land Use 3— Hour (Capacity /Level of 147 ADT (48 peak hour) Service "D" 'Average Daily Trips z as defined by 2.4 acres zoned B-2 Sas defined by 4,000 sf church WATER & SEWER: The site is already connected to City water and sewer services FIRE: Applicant must obtain a Certificate of Occupancy. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request of a Conditional Use Permit for a church with the recommended conditions provided below. Evaluation: The proposal to use this unit for a church is, as conditioned below, compatible with the other uses within this office complex and will not negatively impact neighboring properties. There are a total of 107 parking spaces located on this site. The Zoning Ordinance requires 30 parking spaces if the church's anticipated 150 individuals attend a service. As always, the parking for a church use in any retail or office complex usually peaks opposite of the retail or office uses. Staff concludes, therefore, that sufficient parking is available to accommodate the proposed use and the other tenants. VICTORIOUS LIVING CHURCH Agenda Item 9 Page 2 CONDITIONS 1. The applicant shall comply with all applicable City requirements for building codes, including fire safety and suppression, required for a change of use from commercial to a place of assembly prior to the issuance of an Occupancy Permit for this unit. This includes obtaining a Fire Inspection, a Fire Code Permit, and a Certificate of Occupancy from the Building Official's Office. 2. The number of congregants at any service shall not exceed the occupancy number for the unit as established by the City's Fire Marshall. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. 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. VICTORIOUS LIVING CHURCH Agenda Item 9 Page 3 VICTORIOUS LIVING CHURCH Agenda Item 9 Page 4 SITE SURVEY SHOWING CHURCH LOCATION VICTORIOUS LIVING CHURCH Agenda Item 9 Page 5 PHOTOGRAPH OF EXISTING BUILDING VICTORIOUS LIVING CHURCH Agenda Item 9 Page 6 1 08/14/01 08/14/01 02/07/99 02/07/99 Conditional Use Permit for a Tower Modification of Proffers Conditional Rezoning from 0-2 to B -1A Conditional Use Permit for self storage facility Granted i 2 03/14/00 Conditional Rezoning from 0-2 to 0-2 w/ modified conditions Granted 3 01/11/00 Conditional Use Permit for a church Granted 4 10/12/99 03/24/98 Conditional Rezoning from B -1A to B -1A w/ modified proffers Conditional Rezoning from 0-2 to B -1A Granted 5 05/25/99 Conditional Rezoning from AG-1/AG-2 & R-20 to A-18 Granted 6 02/10/98 Conditional Use Permit for a church Granted 7 12/09/97 Conditional Rezoning from 0-2 to A-12 Withdrawn 8 10/26/93 Conditional Use Permit for an indoor recreational facility Granted HI 9 10/26/93 02/24/86 02/24/86 Conditional Rezoning from 0-2 to B-2 Conditional Rezoning from R-3 to 1-1 Conditional Use Permit for storage yard Granted Denied Denied 10 05/28/91 Street closure Granted 11 09/18/99 Conditional Rezoning from 0-2 to R-20 Granted ZONING HISTORY VICTORIOUS LIVING CHURCH Agenda Item 9 Page 7 z W i W Q N O J U N a NO[itl'JI7ddV IIWUHd HSa IVNOIIIGN03 J Fi G 1 _ r - V J J - ^ r W c = y _ _ 117 c J C• c - cr Lu NO[itl'JI7ddV IIWUHd HSa IVNOIIIGN03 J G 1 _ r - V ^ r W c = NO[itl'JI7ddV IIWUHd HSa IVNOIIIGN03 DISCLOSURE STATEMENT VICTORIOUS LIVING CHURCH Agenda Item 9 Page 8 ^ r c = 117 cr Lu It CL CLRE E7 2 zz DISCLOSURE STATEMENT VICTORIOUS LIVING CHURCH Agenda Item 9 Page 8 Item #9 Victorious Living Church Conditional Use Permit 2180 McComas Way, Suite 113 District 7 Princess Anne September 12, 2007 CONSENT Janice Anderson: The next matter is agenda item 9. That is the application of Victorious Living Church. It is for a Conditional Use Permit for a church on property located 2180 McComas Way, Suite 113, in the Princess Anne District. Welcome sir. Rupert George: Thank you and good day. Thank you all the members. My name is Rupert George. I am the Pastor of Victorious Living Church. Janice Anderson: Pastor George? This has two conditions. Have you reviewed those and are those acceptable? Rupert George: Yes ma'am. Janice Anderson: Thank you. Rupert George: I just want to say real quickly. We are really looking forward to this happening. We thank God for the privilege of being a resource to the community. Most of our programs in ministry are outreach focus, so we plan on being a resource to the community spiritually, socially, educationally and financially. So, we look forward to this process. Janice Anderson: Thank you Pastor George. I'm sure it will be an asset to the community. Rupert George: Thank you. Janice Anderson: Thank you. Is there any objection to this matter being placed on the consent agenda? See none, the Chairman has asked Don Horsley to review this application for us. Donald Horsley: Okay. This Conditional Use Permit for a church in an office building is something that happens quite often in our City. It appears that the hours of the church and the hours of the surrounding businesses in the office do not coincide, so therefore, parking will not be a problem. There should be adequate parking. So, we think that this is a good use for that area, hearing no objections we put it on consent agenda. Item #9 Victorious Living Church Page 2 Janice Anderson: Thank you Don. Mr. Chairman, I would like to make a motion to approve agenda item 9. Barry Knight: There is a motion on the floor by Jan Anderson and seconded by Gene Crabtree to approve agenda item 9. I'll call for the question. Ed Weeden: By a vote of 11-0, the Board has approved item 9 for consent. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved item 9 for consent. CITY OF VIRGINIA BEACH AGENDA ITEM . ITEM: Application of Willie Donald Martin, Jr. for a Conditional Use Permit for an automobile repair garage on property located at 1128 Barrs Road (GPIN 1459700591). DISTRICT 4 — BAYSIDE. MEETING DATE: October 9, 2007 ■ Background: The applicant requests a Conditional Use Permit to allow development of the site for an automobile repair garage. The applicant currently operates his business on Connie Lane and Connie Way. A street closure and conditional rezoning recently approved at that location to allow development of a multi -family project necessitates the need for the applicant to relocate. It is the applicant's desire to relocate to the subject property, which has been in his family for over 70 years. The site is located within Strategic Growth Area 1 — Northampton Boulevard Corridor Area. The Plan's policies for Strategic Growth Area 1 recognize that this area has evolved into a major employment center in South Hampton Roads with exceptional transportation access that serves its corporate and industrial clientele. A study has been undertaken jointly by the City of Virginia Beach, the City of Norfolk, and the Norfolk Airport Authority to assess the potential for comprehensive development of the area in which this rezoning request is located. The study, known as The Northampton Boulevard Corridor Master Plan Study, is currently in draft form and has not yet been approved by the City Council. City staff is currently in the process of determining implementation measures that will allow the recommendations of the Comprehensive Plan for this area to proceed. The draft study assemblage of land for high-intensity development, specifically multi -story class A and B office Campus Park with mixed uses to include flex/office, research and development, and light industrial and retail. ■ Considerations: The applicant proposes to construct an 8,000 -square foot building, 12 parking spaces, landscaping, and a six-foot chain link fence enclosing the site. The proposed building is a steel system building, 100 -feet in width by 80 -feet in depth. The proposed height ranges from 12 -feet to 20 -feet. While the proposed automobile repair facility would, at first glance, appear consistent with the development policies established for Strategic Growth Area 1, Willie Donald Martin, Jr. Page 2 of 3 a continuation of uncoordinated development efforts such as this are not consistent with the City's long-term vision and strategy for making this area an important and evolving office / industrial park. Unlike any of the other office - industrial parks in the city, the Airport Industrial Park is served by excellent Interstate and arterial highway access and a key railroad link that provides access to major external markets located in the region, state, and nation. The pending Northampton Boulevard Corridor Master Plan /Airport Industrial Park Expansion Plan for this office / industrial park corridor does not support the uncoordinated singular land use efforts that are starting to emerge in this office park. Additionally, the applicant has several other hurdles to overcome. First, the applicant must obtain approval from the Federal Aviation Administration (FAA) to construct the building on the site. Second, the applicant must work with the Fire Department and the Permits and Inspections Division of Planning to install the required fire protection systems for the proposed use. Finally, the site is not served by public water or sewer, and the nearest water and sewer lines are over a half -mile away in Burton Station Road. Staff cannot support this application at this time due to these outstanding issues, and recommends indefinite deferral, providing the applicant an opportunity to address the obstacles above and staff time to finalize implementation strategies for Strategic Growth Area 1. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 9-2 to approve this request with the following conditions: 1. The applicant shall file the "Notice of Proposed Construction", Federal Aviation Administration (FAA) Form 7460-1 as required by Federal Aviation Regulation Part 77 with regard to development in the Runway Protection Zone of Norfolk International Airport. A copy of the FAA approval shall be submitted to the City of Virginia Beach Planning Department before any site development and building construction plans are accepted for review. 2. If approved by the FAA, the site shall be developed substantially in accordance with the submitted "BOUNDARY AND PARTIAL TOPOGRAPHIC SUREVEY OF 1128 BARRS ROAD — SITE 12, CORNICK FOARM — 2.71 ACRES for WILLIE MARTIN", prepared by East Coast Hydrographic Surveyors and Consultants, and dated 9/12//06, unless modification to the plan is required by the FAA approval. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. Willie Donald Martin, Jr. Page 3of3 3. If approved by the FAA, the proposed building shall substantially conform to the General Steel Corporation Building Systems elevations submitted with the request. The sides and rear of the building may be steel building system. The front of the building shall be a combination of block and steel as depicted on the elevations. Said elevations have been exhibited to the Virginia Beach City Council and are on file in the Planning Department. 4. The applicant shall work with the Virginia Beach Fire Department and the Permits and Inspections Division of the Department of Planning to obtain approval for the required fire protection systems. 5. Any proposed fencing around the building or site shall meet the requirements of the City Zoning Ordinance Landscape Screening and Buffering regulations. 6. All parking shall meet the dimensional requirements of the City Zoning Ordinance parking regulations. 7. All automotive repairs shall take place inside -the building. 8. There shall be no outside storage of vehicles in a state of obvious disrepair. If vehicles in this condition require storage, then such vehicles shall be stored within the building. There shall be no outside storage of equipment, parts, or materials. 9. A Lighting Plan and / or Photometric Diagram Plan shall be submitted during detailed site plan review. The plan shall include the location of all pole mounted and building mounted lighting fixtures, and the listing of lamp type, wattage, and type of fixture. Lighting shall overlap and be uniform throughout the parking area. The plan shall also include provisions for implementing low-level security lighting for non -business hours. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends an indefinite deferral. Planning Commission recommends approval. Submitting Department/Agency: Planning Department r . City Manager WILLIE DONALD MARTIN, JR. Agenda Item 26 September 12, 2007 Public Hearing Staff Planner: Faith Christie REQUEST: Conditional Use Permit for an automobile repair garage "Q Willie Donald Marti r. ,7 i R -SO r . C IT rrx 4olor curer W.Ar" r&xh Siupj ADDRESS / DESCRIPTION: Property located at 1128 Barrs Road GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14597005910000 4 - BAYSIDE 2.71 acres The applicant requests a Conditional Use Permit to allow SUMMARY OF REQUEST development of the site for an automobile repair garage. The applicant currently operates his business on Connie Lane and Connie Way. A street closure and conditional rezoning recently approved to allow development of a multi -family project on that site necessitates the need for the applicant to relocate. An 8,000 -square foot building, 12 parking spaces, landscaping, and a six-foot chain link fence enclosing the site is shown on the submitted site development plan. The proposed building is a steel system building, 100 -feet in width by 80 -feet in depth. The proposed height ranges from 12 -feet to 20 -feet. Application History: This request was deferred indefinitely at the June 13, 2007 Planning Commission meeting due to several issues: • A study has been undertaken jointly by the City of Virginia Beach, the City of Norfolk, and the Norfolk Airport Authority to assess the potential for comprehensive development of the area in which this rezoning request is located. The study area is bound by Lake Wright on the west, Northampton Boulevard on the south, Baker Road on the east, and Norfolk International Airport on the north, and comprises approximately 400 acres. The study, known as The Northampton Boulevard Corridor Master Plan Study, is currently in draft form and has not yet been approved by the City Council. City staff is currently in the process of determining implementation measures that will allow the recommendations of the Comprehensive Plan for this area to proceed. The draft study assemblage of land for high-intensity development, specifically multi -story class A & B office Campus Park with mixed uses to include flex/office, research and development, and light industrial and retail. Staff is continuing to work on the proposed plan; however it is not ready for public presentation at this time. WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 1 The applicant must file the appropriate paperwork with the Federal Aviation Administration (FAA) to construct the building on the site, as the site is within the Runway Protection Zone (Clear Zone) of Norfolk International Airport. The applicant has filed the Notice of Proposed Construction or Alteration with the FAA as requied. • The applicant must work with the Fire Department and the Permits and Inspections Division of Planning to install the required fire protection systems for the proposed use, as there is no public water service at this loctaion. The applicant met with Fire Department Officials on-site to determine a method for fire protection. • The site is not served by public water or sewer, and the nearest water and sewer lines are over a half -mile away in Burton Station Road. This issue is not yet resolved. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Three small sheds, totaling 712 square feet, an office trailer, and several semi -truck containers currently exist on the property. SURROUNDING LAND North: . Wooded parcel / 1-1 Light Industrial USE AND ZONING: South: . Wooded Parcel / 1-1 Light Industrial East: . Norfolk and Southern Railroad West: • Barrs Road NATURAL RESOURCE AND The site is partially wooded and partially cleared, and is located within a CULTURAL FEATURES: Chesapeake Bay Area Resource Management Area. There are no significant natural resources or cultural features associated with the site. AICUZ: The site is in an AICUZ of Less than 65 dB Ldn surrounding NAS Oceana. The site, however, is located within a Runway Protection Zone (previously the Clear Zone) for Norfolk International Airport. Additional information from the Norfolk Airport Authority is provided at the end of this report. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP).: Barrs Road in front of this site is a two-lane undivided local street. There is no Capital Improvement Program projects are slated for this area. In order to comply with current City standards, the following will be required during detailed site plan review: • Dedicate 15 -feet of right-of-way to further bring the ultimate right-of-way width to a 50 -foot WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 2 minimum standard. • Provide right-of-way improvements in accordance with the City's 30 -foot typical roadway section. This may include pavement widening, curb and gutter, drainage, and street lighting. • Replace the existing gravel entrance with a VDOT standard entrance apron. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Barrs Road No traffic No traffic counts available Existing Land Use — counts 206 ADT available Proposed Land Use 3- 49 ADT 'Average Daily Trips Zas defined by typical land uses in 1-1 Light Industrial zoning 3 as defined by automobile repair WATER and SEWER: City water and sewer are not available to the site. Health Department approval is required for the use of a private well and septic system. FIRE: The Uniform Statewide Fire Prevention Code requires an approved water supply capable of supplying the required water flow for fire protection be provided to the premises upon which the facilities, buildings or portions of buildings are constructed (Section 508.1). The closest approved water supply is a fire hydrant in front of 5805 Burton Station Road. It is located over 3,000 -feet from the proposed automotive repair facility, which is well over the maximum travel distance of 400 -feet for commercial buildings. Based upon this the Fire Department does not recommend approval of the request. STORMWATER: The referenced project must develop a stormwater management plan for water quantity and quality in accordance with the Public Works Specifications and Standards. The Preliminary Site and Landscape Plan do not show a stormwater Best Management Practice (BMP) for the proposed request. It should be recognized that approval of this plan does not permit the exclusion of installing and adequately sizing a BMP for the site. If including a BMP impacts the proposed plan, the plan may be required to be resubmitted for revision approval. The project will need to identify adequate offsite receiving drainage systems. The proposed stormwater management plan must be designed in accordance with the Virginia Pollution Discharge Elimination System Permit. The operations of the proposed facility must not impact the water quality of the downstream receiving storm drain systems. This property is located within a City of Norfolk watershed area and thus may be forward to the City of Norfolk for their stormwater review. Recommendation: EVALUATION AND RECOMMENDATION Staff cannot recommend approval of this application at this time. An indefinite deferral is in order. Comprehensive Plan: The site is located within Strategic Growth Area 1 — Northampton Boulevard Corridor Area. The Plan's policies for Strategic Growth Area 1 recognize that this area has evolved into a major employment center in South Hampton Roads with exceptional transportation access that serves its corporate and industrial clientele. Proposals located near Norfolk International Airport must meet or exceed local, state, and federal aviation regulatory requirements as they apply to the proposed use, height, and stormwater management facility design. WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 3 Evaluation: Staff recommends deferral of this request. A study has been undertaken jointly by the City of Virginia Beach, the City of Norfolk, and the Norfolk Airport Authority to assess the potential for comprehensive development of the area in which this rezoning request is located. The study area is bound by Lake Wright on the west, Northampton Boulevard on the south, Baker Road on the east, and Norfolk International Airport on the north, and comprises approximately 400 acres. The study, known as The Northampton Boulevard Corridor Master Plan Study, is currently in draft form and has not yet been approved by the City Council. City staff is currently in the process of determining implementation measures that will allow the recommendations of the Comprehensive Plan for this area to proceed. The draft study assemblage of land for high-intensity development, specifically multi -story class A and B office Campus Park with mixed uses to include flex/office, research and development, and light industrial and retail. While the proposed automobile repair facility would, at first glance, appear consistent with the development policies established for Strategic Growth Area 1, it is unclear how, in the long-term, a continuation of uncoordinated development efforts such as this will match up with the City's long-term vision and strategy for making this an important and evolving office / industrial park. Unlike any of the other office -industrial parks in the city, the Airport Industrial Park is served by excellent Interstate and arterial highway access and a key railroad link that provides access to major external markets located in the region, state, and nation. The pending Northampton Boulevard Corridor Master Plan / Airport Industrial Park Expansion Plan for this office / industrial park corridor does not support the uncoordinated singular land use efforts that are starting to emerge in this office park. Additionally, the applicant has several other hurdles to overcome. First, the applicant must obtain approval from the Federal Aviation Administration (FAA) to construct the building on the site. Second, the applicant must work with the Fire Department and the Permits and Inspections Division of Planning to install the required fire protection systems for the proposed use. Finally, the site is not served by public water or sewer, and the nearest water and sewer lines are over a half -mile away in Burton Station Road. In sum, Staff cannot support this application at this time due to these outstanding issues, and recommends continued indefinite deferral, providing the applicant an opportunity to address the obstacles above and staff time to finalize implementation strategies for Strategic Growth Area 1. If those obstacles cannot be overcome, the application should be denied. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. 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. WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 4 AERIAL OF SITE LOCATION WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 5 PROPOSED SITE PLAN WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 6 U ( n PROPOSED SITE PLAN WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 6 PROPOSED BUILDING ELEVATION WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 7 PROPOSED BUILDING ELEVATION WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 8 There is no zoning history to report for the site. According to zoning maps the site was zoned M-1 1 General Industrial District before 1973, and has been zoned 1-1 Light Industrial since 1973. ZONING HISTORY WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 9 w i� There is no zoning history to report for the site. According to zoning maps the site was zoned M-1 1 General Industrial District before 1973, and has been zoned 1-1 Light Industrial since 1973. ZONING HISTORY WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 9 Iml oIJ.tl'JPIddV 11WHad �Sf11VNOLLIQNO3 r f uj 2 •� G_ J_' C v C rEzco � C T •r C 17<- C C V co Z Li cn �< U_1�=� O N�... - u. — _ 'r' 77, it we a a -- N N oIJ.tl'JPIddV 11WHad �Sf11VNOLLIQNO3 r f uj - _ _ J s a _ - T 17<- C C V co Z Li �< U_1�=� oIJ.tl'JPIddV 11WHad �Sf11VNOLLIQNO3 DISCLOSURE STATEMENT WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 10 r f uj co Z Li - '• — _ 'r' 77, it we a a -- _ _ Y - DISCLOSURE STATEMENT WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 10 PAY,ULK Hir.YUYI H IH dux :�_r,`rJZt_ nv y _wJ .Lug., ,_:U'7, U. NORFOLK AIRPORT AUTHORITY Nortoik,nitrnxilnal A:rmr.ZiPA Nen—Acnuc 5er(o:., L':.-gI:::a :35:F-550: 7S71i57.333'. i:x. ii%-S57d:SS Via Facsimile - 385-5667 & U S Mail May 30, 2007 The Planning Commission City of Virginia Beach Municipal Center, Building #2, Room 115 2405 Courthouse Drive Virginia Beach, VA 23456 RE: Proposed Conditional Use Permit Request for Willie Donald Martin, Jr., on Property Located at 1128 Barrs Road, Virginia Beach Members of the Planning Commission: On behalf of the Norfolk Airport Authority, owner of property and a neighbor interested in the overall development of the Burton Station area of Virginia Beach, I offer the following comments regarding the subject application: It is our understanding that the property Is subject to all zoning requirements applicable to "height regulations" and, specifically, the Federal Aviation Regulation Part 77 (FAR Part 77). This federal regulation requires the owner of the property to file the applicable "Notice of Proposed Construction" (FAA Form 7460-1) with the Eastern Region of the Federal Aviation Administration. The Airport Authority is not in a position to render any opinion regarding the determination of height restrictions in the Runway Protection Zone (previously clear zone) or other applicable surfaces in the vicinity of the Airport. Those determinations can only be made by the FAA. 2. The property is also subject to an easement applicable to the Airport which was granted by the Circuit Court of the City of Virginia Beach on March 24, 1967 and is recorded in Deed Book 1000. Page 104. 3 The Airport Authority would prefer to see this property developed in keeping with an overall plan approved by the City of Virginia Beach for the entire Burton Station area rather than in a piecemeal manner that appears to be occurring. Our Authority has supported a number of studies undertaken by the City of Virginia Beach to determine the best approach AIRPORT AUTHORITY LETTER WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 11 Nle;'-ULK Hlh,'NI} HUH raIj: May 'l) Arlt 14.:JY. U2 to coordinating the development of this critical area of the City. Without such a comprehensive plan for the orderly development of the subject area, the City will face a potential hodgepodge of development through piecemeal zoning. The Airport Authority urges the Planning Commission to deny the subject application and actively pursue the preparation of an aggressive comprehensive development plan for the entire Burton Station and surrounding area. The Authority is prepared to continue its support of that effort. We appreciate being advised of this matter and for the opportunity to provide our comments. Please advise if you have any questions or if we can be of further assistance. Sincerely. I enneth R. Scott xecutive Director KRSfjpj WILLIE DONALD MARTIN, JR. Agenda Item 26 Page 12 Item #26 Willie Donald Martin, Jr. Conditional Use Permit 1128 Barrs Road District 4 Bayside September 12, 2007 REGULAR Joseph Strange: The next item is item 26, Willie Donald Martin, Jr. An application of Willie Donald Martin, Jr., for a Conditional Use Permit for an automotive repair garage on property located at 1128 Barrs Road, District 4, Bayside. Barry Knight: Welcome ma'am. Joyce K. Martin: Good afternoon to the Planning Commission and staff members as well. My name is Joyce Keeling Martin, and I've read the conditions that have been handed to me today, and they are in compliance and right in alignment with what we have received previously. The only thing that I have to address is that I did send the application to the Federal Aviation Administration, and I sent that by certified mail. I do have a signature and a receipt copy here, but I haven't received anything from them. My only concern is how long it will take them to approve it, because I'm ready to move on. This property has been in our family for I would say for 100 years or so or close to it. We actively anticipating seeing our elder son, Willie Jr., continue to be an economic asset in the City of Virginia Beach, where he has been operating for seven years in the auto body and paint business. And, with the FAA and any time possible, I'll have to add that, I will make all efforts to get that process and speed it up since those conditions 1 and 3 are directed in that direction. Barry Knight: Do you have anything to add Ms. Martin? Joyce K. Martin: Well, as I look at the conditions, and as I have already fore stated to some of the staff planners, item 4, I think was a standout in the original submission for the request for the Conditional Use Permit. And, in modern day technology, they no longer have a requirement for access to fire hydrant to provide water. Because the auto body and paint industry now, they use what they call an "industrial automatic fire suppression system", and my son basically explained it to me, since he has been doing it now for, I guess since he was about 15 or 16 years old and involved with the vocational program out of high school; so, he's been pretty much knowledgeable having to work for other persons who utilize this concept because it has the capability of doing more than watering things down. And, then in combination with that, we also have to meet the requirements of OSHA, as well as the EPA requirements, being that the type of work that we're doing in utilization of the product lines that we use with paints and polymers we use today, we have to meet certain requirements to protect the environment as such. We are doing a lot of that right now in our present operation. And, we know of the fact that Item #26 Willie Donald Martin, Jr. Page 2 we will be submitting a request to the Health Department of Virginia Beach to reactivate, which is already on the premises, a septic tank system as well as well water. Barry Knight: Do you have anything to add Ms. Martin? Joyce K. Martin: I have a lot to add, but I've been with you all day. I've enjoyed your presence, and I wanted an opportunity to get up here and share, believe you me, because I've waited along time for this. Barry Knight: It might be appropriate. I don't believe we have any opposition. Joseph Strange: Do you have anyone else in support? Joyce K. Martin: All of them had to leave, unfortunately, because they had other commitments which they had to address. Barry Knight: Now would probably be a good time to ask Ms. Martin any questions? Mr. Redmond? David Redmond: Mrs. Martin, how long have you been in this kind of line of work? Joyce K. Martin: Well, my son has been on his own now for 7 years going into 8, and all of his operations have been in the City of Virginia Beach. Being that he has poured some monies back into the economic climate of Virginia Beach, and he employs persons in the City of Virginia Beach, as well as for a long range plan, we're looking at providing a benefit that was afforded him in high school, and that is to provide a summer work program, as well as apprenticeship avenues for young men and women who desire to enter into this occupation as well, because it worked so well for him. My desire was that he would go to college and do something else but he fell in love with this when he took it as a vocation in high school. And, as I aforementioned, this property, where it is situated, has been in our family for some 90 something years or 100 years, if you go back and being very accurate and trying to go back and streamline the process. David Redmond: This is your principal means of support, this business? Joyce K. Martin: Yes it is. It is supports my son, his wife and his daughters. David Redmond: Thank you. Joyce K. Martin: Thank you. Barry Knight: Mr. Whitney, I think I see which way this may be going. I note there are no conditions on here or the conditions will be applied at site plan review? Maybe I missed them. Excuse me. David Redmond: Faith seemed to have disappeared. Item #26 Willie Donald Martin, Jr. Page 3 Barry Knight: No, she is there. David Redmond: Oh there she is. She is right behind Stephen. Okay. She has got a copy of that and she has handed it out. Barry Knight: You gave me too many pieces of paper today. Mr. Redmond, you have looked at the conditions? David Redmond: Yes. I've looked at the conditions, and unless Mrs. Martin has an objection to them, they seem appropriate to me. My view is that they owned this property, and I think Ms. Christie said since 1912. That would be 95 years. We have been developing a plan for this corridor for also about 95 years. I don't mean to be a smart aleck, but I think it is time that they had the opportunity to make the most productive use of this land that they can, unless there is some compelling reason why they shouldn't, and I can't find any compelling reason why they shouldn't. The staff s recommendations for a deferral not withstanding, and so, I understand, and I heard in the informal this morning from the gentleman from Economic Development who said that we continue to work on this plan. My fear is that we could be, and as he indicated, five years from now, still be working on the plan, and still have this family and a number of other families in limbo. I don't think it is fair to them to leave them in limbo. This is a concrete proposal. What they are proposing is not substantially different from what they are able to do by -right with the current zoning that they have. It just seems to me a fundamental issue of fairness that they be able to do that. So, at the appropriate time, I'm going to make a motion that we approve their application. Barry Knight: I'll get Ms. Anderson. Janice Anderson: Thank you. I understand your point David, and it is well thought of, and you brought up a lot of issues. But, I just can't support it, mainly because of the commitment that Economic Development is making towards this area. I would have to go along with the recommendation of the Planning staff for a deferral on any use that requires a Conditional Use Permit to be issued on the property. I would just have to defer it until the Master Plan comes out. Economic Development can give you a time when it is gong to be and actually put into place. But they are committed to it, and there seems to be some issues with the Norfolk Airport Authority, which haven't been worked out quite yet. So, I would take the position for a deferral. Barry Knight: Mr. Crabtree and then Mr. Livas. Eugene Crabtree: I agree with David that this has gone on for years. And, we have penalized the people for not using their property over these current years. We don't know how long it will take Economic Development people to get a plan that is agreeable between the City of Virginia Beach and Norfolk and the airport all three. So, my position is to support it and let them go ahead with their business. And when, and if, this plan Item #26 Willie Donald Martin, Jr. Page 4 comes about between the three cities, then we will address to what happens to their property at that time. Barry Knight: Mr. Livas? Henry Livas: Yes. I want to state that I support the project too, and we are talking about our staff's recommendations. They indicated they wouldn't approve it, and this is because they're waiting on the Economic Development report along with the City of Norfolk and the City of Virginia Beach. In my notes here, it says that is not a real reason not to approve something because we're waiting on studies. And, as he has stated, those studies could take five or ten more years; so, I'm of the inclination to go ahead and support the project, and I agree with David. Barry Knight: Mr. Redmond? David Redmond: Mr. Chairman, I make a motion that we approve the application of Willie Donald Martin, Jr., agenda item 26 with the nine conditions that were provided by staff. Barry Knight: Mr. Livas? Henry Livas: I'll second it. Barry Knight: There is a motion on the floor to approve agenda item 26, Willie Donald Martin, Jr., made by Dave Redmond and seconded by Henry Livas. Is there any discussion? I'll call for the question. Ed Weeden: By a vote of 9-2, the application of Willie Donald Martin, Jr. has been approved. Barry Knight: Mr. Secretary? AYE 9 NAY 2 ABS 0 ABSENT 0 ANDERSON NAY BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE NAY WOOD AYE Ed Weeden: By a vote of 9-2, the application of Willie Donald Martin, Jr. has been approved. Barry Knight: Mr. Secretary? Item #26 Willie Donald Martin, Jr. Page 5 Joseph Strange: There are no other items on the agenda. Barry Knight: Thank you. The meeting is adjourned. CUP for Indoor Recreational Facility GN Stu �t z! CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of Rappahannock Sports, L.L.C. for a Conditional Use Permit for an indoor recreation facility on property located at the southeast intersection of Holland Road and Warwick Drive (GPIN 1495086742). DISTRICT 6 — BEACH. MEETING DATE: October 9, 2007 ■ Background: The applicant requests a Conditional Use Permit to allow development of the site for an indoor recreational facility within a structure of 115,000 square feet. The site is zoned B-2 Community Business, allowing a variety of by -right retail commercial and related uses. The currently undeveloped site is located in a Primary Residential Area, as designated by the Comprehensive Plan. The Plan recognizes the importance of preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods in the Primary Residential Area. Development adjacent to stable neighborhoods should generally try to reinforce rather than change the positive character of neighborhoods. ■ Considerations: This is a proposal for a year-round, multi -sport facility consisting of playing fields for soccer, field hockey, lacrosse, and flag football. Also proposed within the building are a locker room, a party room, and a small gym. A limited amount of bleachers will be provided surrounding the fields, which is typically used by family members watching their parents or siblings play. The facility is geared towards the athlete rather than the spectator. The site plan depicts a 35 -foot high building located in the middle of the property with parking on both sides. The bottom portion of the structure will have aqua color split -face block and beige to gray horizontal metal panels above. A translucent light band is shown at the top of the walls, just under the roof, in lieu of sky lights in the roof, to provide natural light into the building. The main, covered entrance will face Holland Road. The Zoning Ordinance requires 1 parking space for every 100 square feet of floor area, which results in 1,103 spaces for this proposal. The applicant has indicated that this number is well beyond their needs and is requesting that the parking requirement be reduced to 464 spaces. The structure is proposed 60 feet from Rappahannock Sports, L.L.C. Page 2 of 4 the eastem property line, the property line adjacent to the Scarborough Square neighborhood. Category IV buffering is proposed along this property line behind existing residential dwellings. The landscaping transitions to streetscape landscaping as it fronts Old Clubhouse Road. Landscaping beyond the minimum standards is depicted on the plan. A dumpster is depicted behind the building, and Staff is recommending a condition to relocate it away from the residential dwellings. The City has consulted with industry -experts Brailsford & Dunleavy to study the need for and marketability of an indoor sports facility such as this. The general conclusion of the study indicated that there is a need for such a facility similar to the size, type and scale of the applicant's proposal. The study does indicate that the facility may be most successful if it were located within the athletic village of the City's Princess Anne Commons area in order to take advantage of the proximity to supporting amenities. The applicant has met with the Parks and Recreation Department staff and is aware of the findings of the report. Staffs conclusion is that the proposed use will generate far less traffic than a typical by -right use, such as a shopping center and will be more compatible to the neighborhood than most by -right B-2 projects. In addition, the indoor recreation facility is an accepted and compatible use within the AICUZ, and the plan depicts landscape material well beyond the minimum requirements. Further, Staff is confident that the limitations and conditions recommended below ensure that the proposed use will be acceptable and compatible. There was opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. The development of the property shall be in substantial conformance with the plan entitled, "Virginia Beach Indoors Sports Complex Preliminary Site Plan," prepared by The Spectra Group, dated June 29, 2007, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The final landscape plan shall reflect the landscape material depicted on the plan entitled, "Virginia Beach Indoors Sports Complex Preliminary Site Plan," prepared by The Spectra Group, dated June 29, 2007, and all other applicable landscape requirements. Said landscaping shall be submitted to the Development Services Center of the Planning Department with the final site plan. 3. A Traffic Impact Study (TIS) shall be submitted with the final site plan. This study must be approved by the Public Work's Traffic Engineering Division and Rappahannock Sports, L.L.C. Page 3 of 4 any recommendations of the TIS must be reflected on the final site plan prior to approval of the final site plan by the Planning Department / Development Services Center. 4. The Public Works Traffic Engineering Division must approve locations of any and all vehicular ingress/egress points as well as the number of ingress/egress points prior to final site plan approval noted above. 5. HVAC equipment shall be located adjacent to the building along the southern facade, at least 200 feet from the eastern property line. All HVAC equipment shall be caged and screened with evergreen shrubs so as to be unobtrusive from the right-of-way. The location of said equipment and screening shall be depicted on the final site plan. 6. Any dumpster or trash receptacle shall be located no closer than 100 feet from the eastern property line. 7. A Photometric (Lighting) Plan shall be submitted for review and approval with the final site plan submission to the Development Services Center. Such lighting plan is to include height of poles located within the parking lot, as well as the location of all pole -mounted and building -mounted lighting fixtures. Illuminating Engineering Society of North America light standards shall be used. 8. A full engineering hydraulic analysis of Pump Station Number 548, as deemed necessary by the City of Virginia Beach Department of Public Utilities, shall be conducted and reported to the Development Services Center during final site plan review to ensure flows from this proposal can be accommodated. 9. Any freestanding signage, other than directional signs, shall be limited to a monument style sign, no taller than eight (8) feet in height, without movable copy, and constructed with materials and color scheme that match the exterior of the main structure. 10.Building mounted signage shall be limited to the comers of the structure as depicted on the elevation entitled, "Virginia Beach Indoor Sports Complex," prepared by the firm baskervill, and shall not exceed 15 percent of the length or height of the facade. The use of neon or other signage inside any of the building's fenestration or windows shall be prohibited. 11.A solid fence shall be installed where appropriate, in combination with Category IV landscaping, along the eastern property line in order to shield motor vehicle headlights from view. It is understood that the height of the fence will vary between four (4) feet and six (6) feet in order to meet the Rappahannock Sports, L.L.C. Page 4of4 requirement of the City's Zoning Ordinance. Said fencing shall be depicted on the final site plan. ■ 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, RAPPAHANNOCK SPORTS, LLC Agenda Item 15 September 12, 2007 Public Hearing Staff Planner: Carolyn A.K. Smith REQUEST: Conditional Use Permit for indoor recreational facility ADDRESS / DESCRIPTION: Property located at the southeast corner of Holland Road and Warwick Drive. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14950867420000 6 - BEACH 10.56 acres The applicant requests a Conditional Use Permit to allow SUMMARY OF REQUEST development of the site for an indoor recreational facility within a 115,000 square feet structure. This is a proposal for a year-round, multi -sport facility consisting of playing fields for soccer, field hockey, lacrosse, and flag football. Also proposed within the building are a locker room, a party room, and a small gym. A limited amount of bleachers will be provided surrounding the fields, which is typically used by family members watching their parents or siblings play. The facility is geared towards the athlete rather than the spectator. The site plan depicts a building located in the middle of the property with parking on both sides. The Zoning Ordinance requires 1 parking space for every 100 square feet of floor area, which results in 1,103 spaces for this proposal. The applicant has indicated that this number is well beyond their needs and is requesting that the parking requirement be reduced to 464 spaces. The structure is proposed 60 feet from the eastern property line, the property line adjacent to the Scarborough Square neighborhood. Category IV buffering is proposed along this property line behind existing residential dwellings. The landscaping transitions to streetscape landscaping as it fronts Old Clubhouse Road. Landscaping beyond the minimum standards is depicted on the plan. A dumpster is depicted behind the building, and Staff is recommending a condition to relocate it away from the residential dwellings. The elevation depicts a one (1) -story structure, no higher than 35 feet, with a standing -seam metal roof. The bottom portion of the structure will have aqua color split -face block and beige to gray horizontal metal panels above. A translucent light band is shown at the top of the walls, just under the roof, in lieu of sky lights in the roof, to provide natural light into the building. The main, covered entrance will face Holland Road. RAPPAHANNOCK Agenda Item 15 Pagel LAND USE AND ZONING INFORMATION EXISTING LAND USE: wooded site SURROUNDING LAND North: . Warwick Drive, vacant woods / B-2 Community Business USE AND ZONING: District South: . Apartments / A-18 Apartment District East: . Townhouses, duplexes / A-18 Apartment District, R -5D Duplex District West: . Holland Road, townhouses / PD -H1 District NATURAL RESOURCE AND The site is predominately wooded. Older growth trees exist along the CULTURAL FEATURES: east property line; however, these are slated for removal. Other than the trees, there does not appear to be any significant environmental or cultural resources on the property. AICUZ: The site is in an AICUZ of 70-75 dB Ldn and a small portion in APZ-2 surrounding NAS Oceana. After clarification of the exact nature of the proposed use as an indoor recreation facility, the application was determined to be compatible within this AICUZ by both the City and Navy representatives. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): This section of Holland Road is shown on the Master Transportation Map for improvements on a 130 foot right-of-way. These improvements are proposed as part of CIP 2-008, Holland Road Phase VII. This project is currently shown as "not funded / inactive" in the CIP. The Public Works signalized intersection analysis report from 2006 shows that the Holland Road and Warwick Road intersection has a peak hour volume to capacity ratio of 0.81, which indicates that this signalized intersection currently operates at acceptable levels. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Holland Road 33,200 ADT T 32,700 ADT (Level of Existing Land Use — (1,315 Peak Service "D") — 34,500 ADT 5,500 ADT Hour Trips) ' (Level of Service "E") Proposed Land Use 3— (1,710 —1,800 Peak Hour 4,000 ADT (240 Peak Tris) Hour Trips) 'Average Daily Trips Y as defined by typical uses on 10 acres of commercial zoning 3 as defined by proposed use RAPPAHANNOCK Agenda Item 15 Page 2 WATER: This site must connect to City water. There is an eight (8) -inch City water main in Warwick Drive, a six (6) -inch City water main in Old Clubhouse Road, and a 16 -inch City water main in Holland Road. SEWER: This site must connect to City sanitary sewer. There is an eight (8) -inch gravity sanitary sewer main in Warwick Drive and an eight (8) -inch gravity sanitary sewer in Old Clubhouse Road. Pump station #548 is the receiving station for this site. This station has capacity issues and may require system modification. As such, a full engineering hydraulic analysis will be required during final site plan review. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Comprehensive Plan: This site is located in a Primary Residential Area. The Comprehensive Plan recognizes the importance of preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods in the Primary Residential Area. Development adjacent to stable neighborhoods should generally try to reinforce rather than change the positive character of neighborhoods. The Plan states that: "Limited commercial or institutional activities providing desired goods or services to residential neighborhoods may be considered acceptable uses on the edge of established neighborhoods provided effective measures are taken to ensure compatibility and non-proliferation of such activities." In general terms, this means that the established type, size and relationship of land uses, both residential and non- residential, in and around neighborhood areas should serve as the guide when considering future development proposals (page 89). Evaluation: The applicant has worked closely with Staff in order to develop a site layout that eliminates any negative impacts to the surrounding property owners, particularly the residential neighborhood to the east. As the site is heavily wooded, the loss of almost 10 acres of trees will be visually dramatic. Understanding this, Staff is recommending the below conditions to further improve the proposal. These conditions address lighting, noise, landscaping, aesthetics, signage and quality of life issues. When originally submitted, the plan depicted a different layout and more than 600 parking spaces. That initial plan proposed parking behind the structure, closer to the existing residences, and depicted a larger building. The applicant has been very open to suggestions for improvement in order to present the best plan possible. In addition to playing fields, there will be locker rooms, a party room, and a small gym. A limited amount of bleachers will be provided surrounding the fields. According to the applicant, this seating is typically used by family members watching their parents or siblings play. The facility is geared towards the athlete rather than the spectator and as such, was deemed compatible with the AICUZ. The City has consulted with industry -experts Brailsford & Dunleavy to study the need for and marketability of an indoor sports facility such as this. The general conclusion of the study indicated that there is a need for such a facility similar to the size, type and scale of the applicant's proposal. The study does indicate that the facility may be most successful if it were located within the athletic village of the City's Princess Anne Commons area in order to take advantage of the proximity to supporting amenities. The applicant has met with the Parks and Recreation Department staff and is aware of the findings of the report. Staffs position is the proposed use will generate far less traffic than a typical by -right use, such as a shopping center and will be more compatible to the neighborhood than most unconditional B-2 projects. RAPPAHANNOCK Agenda Item 15 Page 3 In addition, the indoor recreation facility is an accepted and compatible use within the AICUZ, and the plan depicts landscape material well beyond the minimum requirements. Further, Staff is confident that the limitations and conditions recommended below ensure that the proposed use will be acceptable and compatible. CONDITIONS 1. The development of the property shall be in substantial conformance with the plan entitled, "Virginia Beach Indoors Sports Complex Preliminary Site Plan," prepared by The Spectra Group, dated June 29, 2007, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The final landscape plan shall reflect the landscape material depicted on the plan entitled, "Virginia Beach Indoors Sports Complex Preliminary Site Plan," prepared by The Spectra Group, dated June 29, 2007, and all other applicable landscape requirements. Said landscaping shall be submitted to the Development Services Center of the Planning Department with the final site plan. 3. A Traffic Impact Study (TIS) shall be submitted with the final site plan. This study must be approved by the Public Work's Traffic Engineering Division and any recommendations of the TIS must be reflected on the final site plan prior to approval of the final site plan by the Planning Department / Development Services Center. 4. The Public Work's Traffic Engineering Division must approve locations of any and all vehicular ingress/egress points as well as the number of ingress/egress points prior to final site plan approval noted above. 5. HVAC equipment shall be located adjacent to the building along the southern fagade, at least 200 feet from the eastern property line. All HVAC equipment shall be caged and screened with evergreen shrubs so as to be unobtrusive from the right-of-way. The location of said equipment and screening shall be depicted on the final site plan. 6. Any dumpster or trash receptacle shall be located no closer than 100 feet from the eastern property line. 7. A Photometric (Lighting) Plan shall be submitted for review and approval with the final site plan submission to the Development Services Center. Such lighting plan is to include height of poles located within the parking lot, as well as the location of all pole -mounted and building -mounted lighting fixtures. Illuminating Engineering Society of North America light standards shall be used. 8. A full engineering hydraulic analysis of Pump Station Number 548, as deemed necessary by the City of Virginia Beach Department of Public Utilities, shall be conducted and reported to the Development Services Center during final site plan review to ensure flows from this proposal can be accommodated. 9. Any freestanding signage, other than directional signs, shall be limited to a monument style sign, no taller than eight (8) feet in height, without movable copy, and constructed with materials and color scheme that match the exterior of the main structure. RAPPAHANNOCK Agenda Item 15 Page 4 10. Building mounted signage shall be limited to the corners of the structure as depicted on the elevation entitled, "Virginia Beach Indoor Sports Complex," prepared by the firm baskervill, and shall not exceed 15 percent of the length or height of the facade. The use of neon or other signage inside any of the building's fenestration or windows shall be prohibited. 11. A solid fence shall be installed where appropriate, in combination with Category IV landscaping, along the eastern property line. In order to shield motor vehicle headlights from view. It is understood that the height of the fence will vary between four (4) feet and six (6) feet in order to meet the requirement of the City's Zoning Ordinance. Said fencing shall be depicted on the final site plan. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. 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. RAPPAHANNOCK Agenda Item 15 Page 5 AERIAL OF SITE LOCATION RAPPAHANNOCK Agenda Item 15 Page 6 PROPOSED SITE PLAN RAPPAHANNOCK Agenda Item 15 Page 7 . ........ . . .............. PROPOSED SITE PLAN RAPPAHANNOCK Agenda Item 15 Page 7 O -4- 77� ....... . .. .... ....... 17, Pti PROPOSED SITE PLAN RAPPAHANNOCK Agenda Item 15 Page 7 O -4- ....... . .. PROPOSED SITE PLAN RAPPAHANNOCK Agenda Item 15 Page 7 -4- ....... . .. PROPOSED SITE PLAN RAPPAHANNOCK Agenda Item 15 Page 7 RENDERING OF PROPOSED BUILDING RAPPAHANNOCK Agenda Item 15 Page 8 PROPOSED BUILDING INTERIOR RAPPAHANNOCK Agenda Item 15 Page 9 PROPOSED BUILDING•' RAPPAHANNOCK Agenda Item15 Page 10 Z W W Q N WNN U) 0 U U) a 0 �I r C N N m ato+ I-_ O } L m E_ n qqE II ! c? 1 c C O m L f0 I I m N O m D m FL E .q V O BL 0 - I mm 0 s 0� 0 0; 0-6 cm ^ :1 L m c o m ' C m m e m C m m. N C) V C C Nm C U` tb C =me�.oc 'z O 0C ON m c N m Q 2 .4 L c n¢ 111.?'; E ^tea c c ,6 EIETA"-003:0 m 0 C . 0E 0 U= O c V O n 0 C poT-16o0 I m o a¢z -c3 am oma ii ^~ o .2 -'E i f0 c6 C7 ��mcHmv°VG C C- 0 8'R N m N m_ Lu �'_ 0 �i amm °_oom v_ S a o J _c°mo N°lz m c' c a. 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G O C LQ� m O 3 U L O a l o CL 0 CZ O m A c 0 N h �. n t m I o.° pc C U O- O j N 0 m C O fj N E0 m L L ° N �_E' p C O G V mH- Y C C u miotic :-i m3 n V C L`' O C a -cc p = G v = .:i N I U C ' = m m a n J v =I L L m y I = 0 p Ta0 V o U g o =�1 0 C C 0 v Z OT O CL m I r C N I q O } L m N O :1 L DISCLOSURE STATEMENT RAPPAHANNOCK Agenda Item 15 Page 12 FREDERICKSBG FIELD HOU Catherine M Wack Stephen E Kin Thomas J Wack Ann F Sears John M Wack Pendleton S Wack Robert P Wack Lisa M Wack Daniel C Wack Veronica V Kell Christopher P McManus Laurie A McManus Kathleen M McManus Reginald P McManus Kathleen F McManus John F McManus Deborah L McManus Patrick J McManus Mary E McManus J Michael Smith Tanya A Smith Nelson Cole Melvin L Garrison Katrina B Garrison Michael Roberts Ross Girvan Debbie Girvan Matthew Masaitis DISCLOSURE STATEMENT RAPPAHANNOCK Agenda Item 15 Page 13 i U Ur1 i� p o I � 0 N N cq o Q N QO j a Z RAPPAHANNOCK Agenda Item 15 Page 14 OG h N O _P P v � o; V! Y� V rfl U{ C OI z h _. 0 0 C, c cr vo Cl o0 O UU =1 =! CS G02, I c hoo ems. oc ch OC h O Y G L. N r'Y _c C c G L C G C _ U JuC —c .zx ��vi ✓; c. O � � � C`J � n� L Y CJ C _ fi — C• V �_ � O U G _ S�Zr.Z J -Z -Z C DISCLOSURE STATEMENT RAPPAHANNOCK Agenda Item 15 Page 15 i< V+ < h N Y !� n c c? c fJ c i i i c _ 5 Y - Sx Oet Mx u � G i i i O "o ; - 7_ J RAPPAHANNOCK Agenda Item 15 Page 16 DISCLOSURE STATEMENT RAPPAHANNOCK Agenda Rem 15 Page 17 � § \ � \k &k \\ E2 _/ \\ E a# -- k � ; zil 2 = k # �\\\ \ \\ \\ƒ\ e§J /% -e / DISCLOSURE STATEMENT RAPPAHANNOCK Agenda Rem 15 Page 17 2i O �I .C, t' Li h P C c v6sy DISCLOSURE STATEMENT RAPPAHANNOCK Agenda Item 15 Page 18 DISCLOSURE STATEMENT RAPPAHANNOCK Agenda Item 15 Page 19 Item #15 Rappahannock Sports, L.L.C. Conditional Use Permit Southeast intersection of Holland Road and Warwick Drive District 6 Beach September 12, 2007 REGULAR Barry Knight: Mr. Secretary, the next item to be heard. Joseph Strange: The next item to be heard is item 15, Rappahannock Sports, L.L.C. An application of Rappahannock Sports, L.L.C. for a Conditional Use Permit for an indoor recreation facility on property located at the southeast intersection of Holland Road and Warwick Boulevard, District 6, Beach, with 11 conditions. Barry Knight: Welcome back Mr. Bourdon. Eddie Bourdon: Thank you Mr. Chairman. Again, for the record, Eddie Bourdon, Virginia Beach attorney, representing the applicant. Two of the principals of the applicant have come down today and are here, both Tom and John Wack. I apologize. I have a couple of handouts and if you all can share. A lot of the information is going to be on the PowerPoint but there are a few bits of information in these handouts that are not, and I'll go over some of the information, and I'll pass these around. David Redmond: Thank you sir. Eddie Bourdon: The application is one for a Conditional Use Permit. It is for a proposed Virginia Beach Indoor Sports Complex. The land itself, which is the subject of the application, is on the east side of Holland Road at the intersection with Warwick Drive. It is a 10 '/z acre parcel of land that is zoned unconditional B-2 General Commercial Zoning District. This is not a rezoning of that commercially zoned property. It is a Use Permit for an indoor sports complex. The proposal is one that involves a use that the city very, very, very desperately needs. We have a number of groups and organizations who are supportive of this request. We did not impinge upon their time to have them all come out today. They are planning on coming to the City Council hearing on this application. The facility is one for indoor recreation. It is not a spectator facility. It is a number of fields, you see what I passed around, it is actually on the PowerPoint, shows the interior of the facility. It is all indoors. It has indoor recreation fields, larger and small. It is not like an outdoor field. They are still smaller than that. You're typical game on one of these fields is going to involve 12 to potentially 16 participants. The sports that are the primary utilization of these fields are indoor soccer, indoor field hockey, indoor flag football, and indoor lacrosse, and lacrosse is an activity that is gaining a great deal of popularity in this area. The use of the facility is 55 percent adult or will be 55 percent adults, 45 percent youth. There are leagues that use these facilities there are adult Item #15 Rappahannock Sports, L.L.C. Page 2 leagues, year round adult leagues and seasonal adult leagues as well as youth leagues. Obviously the primary time of the year when this facility will be utilized is during the cooler weather months, and the winter months, November through March but it is a year round facility. The peek times that this facility would be used are in the afternoon and evenings during the weekdays basically from 4:00 in the afternoon until 10:00 and on weekends pretty much all day 10:00 o'clock until 10:00 o'clock. If you go back to the site plan, what we have done is that we have designed the facility so that it is centered on the property. We have proposed one access point with a right -in, right -out on Holland Road. We got a signalized intersection at Warwick Drive, and again, one access on Warwick Drive to the facility roughly half way back from the property itself. We set the building from the rear property line, 60 feet in. The height of the building to the eave is 331/2feet and to the peak of the roof is 35 feet. Obviously it is a pretty flat roof. There is a little bit of slope there. The parking that we have provided is actually 464 parking spaces depicted on the plan. Based on their experience, based on the number, again this is not a spectator facility. This is for participants. You will have some family members that will come and watch and for that purpose there are some minimal, like three or four rows of bleachers, but you don't have any real spectators other than family members there. But the parking that is depicted far exceeds the need at the reduced amount that is shown, far exceeds what the history of the similar facilities will be. We do not project at any point in time to have more than 400 people in the facility, which the provision for 464 parking spaces clearly exceeds what we're going to have in terms of people in the facility. The most optimistic of scenarios, you might have more than 400 but not very many more than 400. By contrast, a shopping center use on the property would involve a shopping center potentially being built without anybody's approval, 15 feet from the eastern property line, the access to the shopping center of this size is more likely going to be greater but certainly not less than what is shown here. I would point out that we will doing a traffic impact study to ascertain, if this is approved, with the site plan approval, whether a turn lane other than on Holland Road where there is another lane is possibly necessary on Warwick Drive or any other potential improvements that traffic may deemed necessary on the impact study but based on, as your staff has pointed out, if it were developed as it is currently zoned for, which we are not changing the zoning but as a commercial site you would actually have a far greater number of trips per day then the exaggerated number of trips per day. I don't mean intentionally, but this type of facility there aren't a huge number of them. My clients have the benefit of operating one in Fredericksburg and they keep very meticulous numbers on the people who come to the facility, and so they are able to, and we believe, accurately project the usership of this property, and the traffic that it would generate. We worked closely with staff on this application. We have absolutely no disagreement with any of the conditions that have recommended, with condition #5 on HVAC being revised, as you believe have to 150 feet back from the property. The HVAC will be screened and buffered. We can put it on the roof or we can put on the ground, either one. We also agree to move the dumpster per the condition that is shown on the site plan. The dumpster is actually depicted on the back and that will be moved per the condition. This is where it is shown (point to PowerPoint) but that dumpster will be moved up in this area here, and will be totally screened and enclosed. There is a solid fence proposed along the rear property line or the Item #15 Rappahannock Sports, L.L.C. Page 3 eastern property line. In this area it would be four foot high fence because of the presence of Clubhouse Road with the Leland cypress of whatever trees that will be planted in the row behind it. In this area of the these single family homes, the fence would be able to be a six foot high fence versus a four foot high fence, again, all of the landscaped area to the west of that. The issue, I assume, and I did meet with the civic league. Frankly, the only comments that I received at that meeting were actually positive comments but there wasn't a whole lot said. Traffic is the issue. We're reducing traffic with this application versus what can be done on the property by -right. There is really no morning peek issue at all. The only traffic that's of any consequence that would have any affect on anyone would be p.m. peek traffic, and again, it is a far lesser use than the commercial use that the property is zoned for, although this is a form of a commercial use. It is in the highest noise zone. And it is in APZ2. Because it is not a spectator facility, it is perfectly acceptable under the OPNAV and AICUZ and JLUS provision in our Zoning Ordinance because of the type of the larger on a much large piece of property, the gym that was approved for the church earlier, similar even though it is not an APZ2, similar high noise zone, similar type use just on a larger scale. Again, the conditions are all acceptable. I'll be happy to answer any questions that you may have. Barry Knight: Are there any questions of Mr. Bourdon at this time? Ms. Anderson. Janice Anderson: Eddie, the back into the neighborhood. There is no parking up to that fence right? Is that green space? Eddie Bourdon: That is all green space Ms. Anderson. From this point back (pointing to PowerPoint) is all green space. And actually on the ends, it is a little bit more than 60 feet of green space. And this obviously will go away with the relocation of the dumpster, which is Condition 4 or 6, I believe, in to this area here. The HVAC would be located towards Holland Road in front of where the dumpster would be or it can be on the roof, either one. Janice Anderson: Okay. Eddie Bourdon: It will all be moved forward. Janice Anderson: Can you just tell me how this facility works? Do people become individual members? Or like you said, there are groups. Do the groups become members? How does it work? Eddie Bourdon: The reality is that you have leagues that are primarily year round leagues for adults. You have some teams that will rent space and utilize the fields for practice especially during the bad months. But you are a member if you're on a team or you can become a member and get on a team but it is basically team oriented. It is not individually oriented use. It is teams that compete in these different sports or practice those particular sports as a group or as a team. Item #15 Rappahannock Sports, L.L.C. Page 4 Janice Anderson: One of the pictures and how they're set up, each field is walled. It looks like it is walled? Eddie Bourdon: It is plexi -glass. It keeps balls from going over to the adjacent field. It is a significantly sized facility but when you're talking about playing games with lacrosse balls or soccer balls, it would disruptive of any type of continuity to the game to have balls flying across the field from the field next door. That is the purpose for the walls. I mean indoor soccer, which I have, a greater familiarity with, and you actually play the ball off the wall. It is part of the game is to play the ball off the wall. Janice Anderson: Okay. Then the hours would be 10:00 o'clock. Eddie Bourdon: No. 10:00 o'clock is the end of the peek. There are leagues that will go in and will use the facility. They will have practice after 10:00 but 10:00 o'clock and when you look at the numbers of people that are in the facility after 10:00 o'clock, it drops from 150 to 160 total down into the 60 to 80 range, and then drops off, obviously midnight, which you don't have in any people to speak of. Janice Anderson: So is it open 24 -hours? Eddie Bourdon: No. It is not open 24 -hours a day. It will depend. During the winter months when there is a tremendous demand because teams can't practice outside and we don't have the facilities to practice, during the winter months it is certainly conceivable that you may have people in there practicing even after midnight to say 1:00 o'clock in the morning. It is not beyond the realm of possibility. But it is all inside. There is nothing going on outside other than people parking their cars and getting out and going in. There are no outside activities. There is no one washing their cars, no one pumping gas. There is nothing happening outside other than getting into the facility and out of the facility. Janice Anderson: Okay. Barry Knight: Are there any other questions? Mr. Crabtree? Eugene Crabtree: Eddie, I noticed that King's Daughters owns the property. Eddie Bourdon: Yes sir. Eugene Crabtree: Have they pursued somewhere in the past other endeavors for this piece of property? Eddie Bourdon: The property was acquired by them for the purpose of developing a medical complex, and my understanding of this is with the Sentara/Princess Anne Commons Project, they were prevailed upon to put their assets into that project. Item #15 Rappahannock Sports, L.L.C. Page 5 Barry Knight: Are there any other questions of Mr. Bourdon? Thank you. Eddie Bourdon: Thank you very much. Joseph Strange: Speaking in opposition we have Lyn Henry. Barry Knight: Welcome ma'am. Please state your name for the record. Lyn Henry: Thank you. My name is Lyn Henry. I am a concerned member of the Scarborough Civic League. I had prepared a whole thing to speak of but after hearing Hunt Club, and everything that has gone on this morning, so I'm just going to speak. We just recently won the Raceco issue. And based on that, we are still concerned about this project. The entrance onto Warwick Drive, I understand there was a car counter there. I called and spoke with Public Works this morning. They could not give me the totals for that yet. We are very interested in seeing what they came up with as far as the traffic on Warwick Drive. It is already a very busy street. It is our only entrance to our neighborhood. It is our only exit to our neighborhood. Now there are short cuts through Cardinal Estates but those all go out to Shipp's Corner, and that is a high traffic area too, without an outdoor Sportsplex and the Moose Lodge getting ready to open on Shipp's Corner. We have bus stops in the area of the general vicinity of this place. Our traffic concerns, our trees are going to be gone. They are going to demo everything, all of the trees on this beautiful lot, and nothing but this building and parking spaces. We have real concerns about this. We actually got to speak to the Rappahannock representative one time. We were a little pre -occupied at the time because we had something bigger on our plate that was coming in front of City Council. We would like, I guess rather than oppose it, we would like a deferral so we can get some more information and maybe work a little closer with them on this project. Please take the time to consider this because it is going to be in our front yard. I mean our main entrance is right there. We're going to have to pass it every day to and from our homes. Thank you. Barry Knight: Are there any questions for Ms. Henry? Ms. Henry, when you're looking for a deferral for more information, do you have any questions right now that you need answered or do you know of any questions? Lyn Henry: We would like to sit down as a civic league and ask the questions. We downloaded the agenda item off the internet and not all of us have had to time to look at that. There have been some revisions to what we were originally proposed or what we were presented with at the civic league meeting. There are a huge number of questions we would like to ask. Barry Knight: Mr. Livas and then Mr. Bemas. Henry Livas: Did you ask some of those questions at the meeting that you had? Lyn Henry: We did. Item #15 Rappahannock Sports, L.L.C. Page 6 Henry Livas: Were they responsive? Lyn Henry: To a point. But at that time, our big priority was a different issue and that is what we were focusing on. Mr. Bourdon represented both issues. At that time, our biggest issue was the Raceco and getting through that situation. This was secondary at the time because we have one meeting a month, and the next City Council meeting was coming up quick on us. Barry Knight: Mr. Berms? Jay Bernas: So, just in general, are you concerned about the use that it is an indoor recreation facility that I would think the young teenagers and the young families would possibly want to utilize it. Lyn Henry: If you're part of a league, which we're concerned about it. We are a moderate family income neighborhood and we're afraid that this place is going to be priced out of our means that we're not going to be able to have access to it. It is not going to be like a recreation center like Bow Creek Recreation Center. You have to be part of a league to be able to even participate and to use this facility. So, anyone of our children in our neighborhood could not go and use one of the courts or one of the fields. It is not going to be like that. It is not going to be an open door recreation type center. You have to be a member of a league and that is part of our concern, the financial aspect of it. Barry Knight: Do you a question for Ms. Henry? Okay. Thank you ma'am. Joseph Strange: Our next speaker in opposition is Inez Gilles. Barry Knight: Welcome ma'am. You can tell us your name. Inez Gilles: Good afternoon Council. My name is Inez Gilles. My concern is the traffic that is going to come at the entrance of Warwick Drive, just Warwick Drive. And, the times, and he said something about 10 to 10. The school buses, you know they come, you know what I'm saying, between that time. And you got kindergarteners, you know that get out at 12:00. Those are my concerns. The traffic and whether or not this facility will be an asset to the neighborhood. That is about it. Barry Knight: Are there any questions for Ms. Gilles? Okay. Thank you ma'am. Inez Gilles: Thank you. Joseph Strange: Our next speaker in opposition is Carl Wright. Barry Knight: Welcome sir. Please state your name for the record. Item #15 Rappahannock Sports, L.L.C. Page 7 Carl Wright: Yes. My name is Carl Wright and I live 1144 Mondrian Loop in the Scarborough Square Borough. As Ms. Henry said, we just fought back an issue there involving traffic, concerns about safety, the availability for the emergency vehicles to get in. We have semi -retired group of folks there. We have kids. We have school buses. You know, basically it is a cul-de-sac. We are bringing in these big boxes and we're talking about hundreds of cars coming into this community. We are already to the gill on Holland Road. I came here actually to defer today but after listening to some of the times, dates and numbers of people and in order to really make this thing work, they are not going to be able run this thing a couple of hours. We're not talking about one or two people coming at a time. We're talking about groups and after listening and we're talking about probably. I don't know what a team is but the numbers they have on teams but I coached football and basketball and I know with the teams come people. In order to run a facility like this you got to have a number of people to be able to financially support it. And, I don't see that really, and he said something about 60 to 80 people being there at one time, I don't see how that is going to work. I don't see how they are going to be able to court that every time 60 or 80 people in this facility. We just fought back this issue with Raceco, and you're taking about coming into a residential neighborhood with children and things like that. I understand that this is a business effort but we're talking about putting the value of a child's life or one of these senior folks get sick and they can't get an emergency vehicle in there or get them out in time. I would hate to be the one that didn't stand up for this situation if something like that happens. I don't see where it really enhances the community or it brings any value to the community. These folks have worked very hard in Scarborough Square to bring this community forward. I don't see at all how this will bring any value and you shouldn't take way from the community when these folks have worked so hard to bring it up. I wish I sat down and talked to them earlier but some other things were coming up and I wasn't able to sit down and talk to these folks. Bu after listening to what they have planned here, I just don't see that working in this community here at Scarborough Square. This is a residential community and we're talking about bringing in almost a commercial operation here for a group of folks coming into this neighborhood. Barry Knight: Are there any questions of Mr. Wright? Mr. Horsley? Donald Horsley: You are aware of the zoning on this property? Carl Wright: Yes sir. Donald Horsley: B-2. Carl Wright: Yes. Donald Horsley: A lot of very intense things can take place on this property. I mean it is zoned and they could build a shopping in there next week. Item #15 Rappahannock Sports, L.L.C. Page 8 Carl Wright: Yes sir. I'm sure that who ever comes in here will look at the integrity of the community and try to enhance the community to work within the community as well. We're not opposed or anything going to open space because people have a right to build but you shouldn't invade the privacy and the safety of the community itself and the way this is going to do. I mean bringing in groups. You are talking about soccer teams and lacrosse teams, and this is a group of people. We're not talking about one or two folks coming in at a time. Barry Knight: Ms. Wood has a question. Dorothy Wood: I appreciate what you have done with your neighborhood and how you have worked so hard to keep it up, and it is a congratulations. Carl Wright: Thank you. Dorothy Wood: Do you think if the applicant was going to be interested that you all could work something out before Council. I mean, I'm just trying to think of what you could possibly? You said some people said they didn't have a chance to talk? Carl Wright: Obviously some folks haven't talked to them. After looking at the plans, we're talking about hundreds of cars Ms. Wood here. We're not talking about 20 or 30 cars. You got more folks coming here than using the recreation center at a general time. We're talking about different. They got soccer fields, lacrosse fields. There is no way in the world you're going to get 50 or 60 folks at any given time to be able to support this operation. They got to bring in hundreds of folks to support this operation. You're bringing it to a residential area. Dorothy Wood: Thank you sir. I was just wondering if we could work something out. Thank you. Barry Knight: Are there any other questions? Ms. Katsias? Kathy Katsias: So if was developed as a shopping center, wouldn't you have people coming and going, more than 50 or 60 people? Carl Wright: They are just saying it could be a shopping center. There hasn't been a proposal for a shopping center. They're saying it could be but I'll assure you there would be some other precautions taken if there was a shopping center there. There are other things that it could be used for. Kathy Katsias: For instance? Carl Wright: Churches, medical facilities and things that enhance and bring value and helps the integrity of the community itself. But it wouldn't be group of folks coming in here at 300 or 400 at a time, and then he said 10:00 p.m. He didn't stop there. From Item #15 Rappahannock Sports, L.L.C. Page 9 what I was hearing they're saying they might be there until 2:00 or 3:00 in the morning for practicing. Barry Knight: Ms. Katsias? Kathy Katsias: I see there is an access on Warwick Drive. If they eliminated that access and only had access on Holland Road, would you be amenable to that, which wouldn't create traffic along Warwick? Carl Wright: Yes ma'am. That would probably help some. I don't know if you have been down Holland Road lately trying to get down right now. So, if you're trying to get in this facility off of Holland Road that would even back the traffic up more because at any given time here at 3:00 or 4:00 o'clock, the traffic is backed up. I'm trying to get out of Holland Road and Warwick Drive it is backed up clear to Dam Neck Road right now. Kathy Katsias: Unfortunately, I think any road in Virginia Beach has the same problems. Carl Wright: Yes ma'am. I'm just trying not to add to it. Kathy Katsias: So, would you be in favor if it were deferred to get with the applicant? Carl Wright: Talk. We can talk. I mean, we just dealt with this Raceco situation, and I mean the concerns of the community, is the fact of the backing up of the traffic. You know, imposing a big box on the community. You know, you're talking about putting a six foot fence in folk's front yard. You're talking about a facility that will not be open to the community. It is a private community. They have the right to do that but we got not two blocks away there is brand new beautiful soccer field that just opened, and then there is the Sportsplex that we are really trying to get enough folks to use over there. Kathy Katsias: But this is an all indoor facility. Carl Wright: Yes ma'am. I know. You're talking about putting a lot of folks in this facility and you're still bringing traffic. It is nice to have folks, the parking spaces, but you're not going to tell me that all the spaces are not going to be used, and them people are going to park other places other than that facility when they come into the community. Kathy Katsias: Thank you. Barry Knight: Mr. Henley has a question. Al Henley: You've indicated that the traffic is backed up. Is it more of a concern of your neighbors on Warwick Drive? I realize at times on Holland Road, but that it is primarily backed up on Warwick Drive. Is that correct? Item #15 Rappahannock Sports, L.L.C. Page 10 Carl Wright: Yes sir. Exactly. The school buses are coming in and out of there. It is a big problem. Another big problem Mr. Henley is that you do have elderly folks there and the emergency vehicles. It is almost impossible for them to get through that traffic if there is an emergency. AL Henley: I think Public Works Engineering could look at that to, and I'm not saying where we're going with this today but for some reason if it is approved, Public Works Traffic Engineering can delay that traffic cycle and adjust that traffic cycle on Warwick Drive to let that traffic out, and to eliminate a lot of that back up. Because right now it is limited to a certain, and I forget how many seconds, but they can adjust that and could help accommodate one of your concerns which is the traffic backup. Carl Wright: Yes. The emergency vehicles have to get in and out, with the traffic itself, and the safety of the children. And we're not talking about a couple like 100 to 150, and we're talking about close to 500 parking spaces. I'm sure they are going to go beyond that. Barry Knight: Are there any other questions for Mr. Wright? Thank you sir. Carl Wright: Thank you. Joseph Strange: That concludes our speakers. Barry Knight: I would like to ask Mr. Whitney a question, if I could. Mr. Whitney? This property is zoned B-2. And, we're not going to downzone the property. The property is what it is. Can you tell us some uses that are allowed by -right and nobody has to come other than for site plan review that are permitted uses on this piece of property, and possibly some hours of operation and possibly some traffic totals on those uses that are permitted as it zoned today. Jack Whitney: They are a wide range or retail uses. Everything from convenience stores to shopping centers, to restaurants, a wide gamut under B-2 that could come onto the site. None of which, in a by -right situation could have conditions applied to them, as would be the case under a rezoning or Use Permit application. So, that is one advantage in having uses that require either Use Permits or zoning changes. You can tailor and mitigate one of the impacts of that particular use there. Under by -right, that is not available. They could come in, submit a site plan, we would review it in accordance with the zoning ordinance and the site plan ordnance, and it would all be done administratively. Barry Knight: Could you give us some intense uses that could be here and possibly some hours of operation and some maybe some traffic totals? Jack Whitney: I'll ask your Zoning Administrator who has got the list in front of her to review a number of them for you. Item #15 Rappahannock Sports, L.L.C. Page 11 Karen Lasley: You can see the traffic projections in your staff report. With the existing zoning, I think it is about 1,500 trips per day higher than what they predicted. Uses by - right in B-2? I would say auditoriums assembly halls but that's up for change so we will skip that one. There could be any kind of restaurant, a big box Wal -mart, K -marts or any big box retail. Any kind of retail strip malls. The auto repair and that type of heavy use are Conditional Use Permits also but probably restaurants and just regular retail. Any kind of convenience stores, grocery stores, banks. Barry Knight: Are there any limits on hours of operation? Karen Lasley: No sir. None at all. Barry Knight: No limits on hours of operation by -right. Tell me again, if you would, the traffic counts. You can have some uses here that traffic could be substantially higher than what is being requested today. Karen Lasley: Correct. Yes. It is in your staff report. A typical B-2 use generates, I think it has got 5,500 trips per day. This is predicted to be lower than that. Barry Knight: 4,000. Thank you. Does anyone have any questions for Ms. Lasley while she is there? Eugene Crabtree: I got maybe just one question or may be just a comment. Since this property was owned by King's Daughters, if they built a hospital there, which would be under the use 24 hours a day, and would have changing shifts, they would probably have more than 400 cars going there a day. They would probably generate probably to closer to 1,000 trips a day that what is generated now. So, even if they were to build what they originally had wanted to, which was a medical facility, which has to operate 24 hours a day, and that would really generate more traffic and more goings and comings. Karen Lasley: That would be hard for me to say. It would depend on the size and the type of use. Eugene Crabtree: But the possibility is there. Karen Lasley: If a big trip was generated with emergency vehicles, and that type of thing. Eugene Crabtree: Right. Barry Knight: Thank you Ms. Lasley. Karen Lasley: It is a Conditional Use. Barry Knight: Mr. Bourdon? Item #15 Rappahannock Sports, L.L.C. Page 12 Eddie Bourdon: Thank you Mr. Chairman. The traffic numbers are also certain. The traffic numbers in the city's write up at 4,000 is way over to what it would actually be. But to answer, and I have a number of comments. First thing, the usage of the facility during weekday hours, and that is prior to 4:00 pm, the maximum, which is during lunch hour 12:00 —1:00 o'clock in the winter months, the maximum number of people that would be in the facility would be 80 people. If they all drove their own car, that is 80 cars. Okay. That is the maximum during the day and that is during the winter between 12:00 and 2:00. There aren't too many school buses that are going in and out of the neighborhood between 12:00 and 2:00. The traffic leaving the neighborhood peek is in the morning. That is by far the least amount of usage of the facility. If the facilities usage is in the pm hours as I mentioned before. The trees that are on the property as Ms. Henry indicated that our trees will be gone. Well, unfortunately they are not her trees or their trees. They belong to the property owner. The trees can be gone at any point in time. I did, in fact, did go to their civic league meeting. I worked very hard to get invited to their civic league meeting, and frankly, made the presentation on this application. There were no questions that were asked that were not answered. Frankly, there were very few questions that were even asked. I was basically rushed out. They really didn't want to, talk about this application. In fact, I got two questions that were asked. One was by the gentleman, who I believe who hosted the meeting, at his church facility there in the shopping center. He couldn't believe it and asked, "you really need a Use Permit for this?" He was surprised. He was surprised that we even needed a Use Permit to do something like this. Chandler Scarborough with Green Run Community Association actually came up to me at the end and said, "he thought it was fantastic, they needed it in the area." If for some reason if it didn't go here, he hoped that he could find a place in Green Run for it. The city does in fact need it. I was going to stay and answer any questions that all were asked, and none were asked. Barry Knight: Thank you Mr. Bourdon. Eddie Bourdon: The facility is open to the community. It is open to any one who wishes to use, who wishes to be involved in a team. We're not puling people from mars here. They are citizens of the City of Virginia Beach that will be using it and not criminals that will be coming to create havoc for Scarborough Square or any other neighborhood. Again, I wish we brought all the different groups in who are very, very interested in seeing this facility built so you could see their faces and hear their words. This is something that is anything but a negative for the community. Also, I want to mention that churches are not a compatible land use under the APZ ordinance so this property cannot be a church as was mentioned by Mr. Wright. At no point in time have I done anything other than to try to talk the folks, engage in dialogue with the folks. And frankly, this situation hasn't transpired. I will be glad to continue to talk. I'm glad to listen but this is a very good land use for this piece of property given all things considered. It will unavoidably reduce the amount of traffic that is there, at least that could be there if the property were developed as it zoned for. The last thing I'll mention because it struck me to hear that it was suggested that this was the only way in and out of the neighborhood when I heard the same people argue that the neighborhood has an Item #15 Rappahannock Sports, L.L.C. Page 13 entrance over on Shipp's Comer Road and the neighborhood would be used to cut through, I'm not really sure which way they wish to argue it. But we are not going into their neighborhood. We're trying to stay out of their neighborhood. The traffic impact study will determine the appropriate access but everyone has looked at it. It is quite certain that the access that is shown and is something that is similar to it is the most appropriate access to the property. If it were developed as a shopping center, or any other retail use, they would actually likely have a third access and they could have a third access without anyone saying yes or no actually on Clubhouse Road. So, if you look at the first application on your agenda, you look at their traffic numbers and correlate that to a similar facility on this piece of property, the numbers that it would generate in terms of traffic exceed 5,500 trips per day. Your staff is 100 percent on point with this. I just don't know how you can argue when it is all indoors, and it is small teams because they are small fields. It is not outside. Indoors and you're talking about again, 8, 10, maybe 14 participants or 16 participants at the most on any of the larger fields and even less on the smaller fields. No basketball courts. It is not a basketball facility. Someone mention something about using the courts. It is not a basketball facility. Barry Knight: Mr. Bourdon, Ms. Katsias has a question for you. Kathy Katsias: one issue was affordability. Could you give us a perimeter of what the affordability of the facility is? Eddie Bourdon: I'm going to have John Wack give you that information. I'm not familiar with the actual pricing. Barry Knight: Mr. Bourdon, would you get him to introduce himself please? Eddie Bourdon: Yes. I will. Actually this is Mr. John Wack, one of the principals. John Wack: John Wack. Barry Knight: Welcome sir. Ms. Katsias has a question? John Wack: Ma'am, typical we sell the activities that we have in our facility last about eight weeks if it is something for a young child. For instance, one of our soccer development programs that usually is about $80 to about $100 for an eight week program where you will be meeting for an hour a week. On some of our smaller fields, we have programs that are less costly. For instance, we have a partnership with Ripken Baseball in our facility in Fredericksburg where the kids will have a one hour game once a week for eight weeks and that is just $45.00. Our use per hour, the cost ranges roughly somewhere between $5 and $10 and that is true for youth and adults. Kathy Katsias: Thank you. Item #15 Rappahannock Sports, L.L.C. Page 14 Barry Knight: Ms. Wood has a question. Dorothy Wood: Do you think you could have a scholarship for some of the people that live right in the area that we're concerned about? Is that something that you have ever done? John Wack: We have not had that situation at our Fredericksburg facility. Dorothy Wood: Maybe you could even thing about it? John Wack: But we will certainly be willing to consider it. Dorothy Wood: Thank you. Barry Knight: Are there any other questions? Mr. Crabtree? Eugene Crabtree: In this whole thing and all has any discussions gone on with our Parks and Recreation and our existing programs that are going on within the City, and sometimes in the future plans with Parks and Recreation do you know of anything like that? I see Mr. Bourdon coming back up here. He seems to know this. Eddie, has Parks and Recreation been a part of this or any discussion? Eddie Bourdon: Mr. Crabtree, I'm going to give you a disjoined answer but the city has a study that was commissioned that was done by Brailsford & Dunleavy. In fact, it is mentioned in your staff write up, where the City has recognized that a lot of us that are involved in one way or another in athletics and realize for sometime that a facility like this is desperately needed. In fact, more than one because you got other sports other than the ones that I mentioned that this is designed for. They are very much interested. They are very much in communications with my clients. There are no two ways about that. The city has some other agendas as well, which we are involved in conversation with them across the board. Eugene Crabtree: That is why I asked him because I know there are some things in the works with Parks and Recreation at this time. Eddie Bourdon: My clients have worked very closely with staff at all levels throughout this process. Barry Knight: Ms. Anderson? Janice Anderson: How do you gain entry? Is there going to be somebody staffed at this all the time or is it a key entry like a storage unit that you can get in? John Wack: You go in. You have a card. You don't have access to the facility unless our staff is there. Item #15 Rappahannock Sports, L.L.C. Page 15 Janice Anderson: Okay. John Wack: So, we open the facility much the way I would say like a YMCA. Each participant in the league is issued a ID card, so when you come in for your activity you present your ID card, we check you in, and then you go to your activity to participate. Some things like a birthday party won't require that sort of ID check but the host of the birthday party would come in and say they were there, and we would direct them to their field or party room but for all the league players will be issued an ID and we check it. Janice Anderson: Okay. But there are staff members there the whole time? John Wack: Yes ma'am. Janice Anderson: Okay. I have a few more. I guess the concern is the green space between the neighborhood. Is there anyway, since they did mention that the tree buffer could remain along that and maybe buffer that from the parking lot any perceived noise that may happen. I mean, it is an indoor facility. The only thing that I could say Eddie is maybe something from the parking lot maybe concerned if you kept some trees there. Eddie Bourdon: If we could get the aerial? We don't have any aerial of the site? No aerial. Okay. Janice Anderson: There is one in our package here. Eddie Bourdon: There are issues as we all confront from these applications. There are issues with drainage and trying to create odds end drainage and half drainage and go forward as opposed towards the rear of the property. All we can commit to Ms. Anderson is to make every reasonable effort to retain these trees that could be retained on that back 40 to 50 feet. I'm not sure on the area where the parking is and this is the best to view it. I don't know if there are any trees in that area. It is open towards the Warwick Drive side of the property, which is where that side of the parking. There is parking on the south side so there would be some potentially some use in terms of helping to screen it. If we can do that engineering wise, we certainly have no problem to a condition that to the greatest extent possible consistent with the drainage we have to create. We will do that or otherwise we will be planting new trees in that area. Janice Anderson: Okay, because your site plan doesn't show any kind of or does it? Eddie Bourdon: Category IV landscaping with the solid fence is shown on there. Category IV is a row of trees that will grow up to 12, 15 or even 20 feet over time, but that is what is shown on there. We have talked about it and if it can be done, there is no reason for us to cut down trees and plant new ones if we can maintain 20 or 30 feet of the vegetation in that southeast corner of the property. We will certainly try to do that. We want to do that but we just don't want it depicted and then with the engineering people Item #15 Rappahannock Sports, L.L.C. Page 16 said that you have to cut them all down because you have to create positive drainage. We can drain on them because you have to drain forward to and towards Holland Road. Janice Anderson: Okay. But if we could, I think buffer with more vegetation maybe that would stick down. The last thing, I guess, and the neighbors have talked about their concern of their children in the neighborhood. You originally said that, I guess you were still working on your traffic impact study and you were going to go over that during site review. Is that correct? Eddie Bourdon: The traffic impact study will be prepared and provided to the city during site plan review to determine whether the accesses that have been shown are appropriately designed, appropriately in place and if there are any other improvements that need to be made. The belief is that what is shown is what is necessary and appropriate but to make certain of that, and that is why. If it was something like where there was a disagreement you would hear about the disagreement. The general consensus is that what we are showing is appropriate but we are doing the traffic impact study to make certain of that, and if there are additional improvements that need to be made or modifications that need to be made, one of the conditions require that we do whatever is recommended by the study. Janice Anderson: Right. Mainly, you will go through traffic engineering and if it is a public safety issue you are going to make those corrections there. Eddie Bourdon: Right. If it requires a turn lane off of Warwick Drive. If it requires striping on Warwick Drive, something along those lines, then that will be done. Janice Anderson: Okay. Thank you. Eddie Bourdon: We have a minimal amount of access. There is a right in and a right out and one off the main road and one on the main road. Barry Knight: Mr. Strange? Joseph Strange: I just want to make a comment that I agree with Dot Wood. I think a certain number of scholarships should be available for some of the local kids there. Something this big and cost looks like it is minimal, would be a nice thing. Eddie Bourdon: Mr. Strange. We can certainly explore that and that request was certainly not one that was entertained when I met with the civic league. I think it is a constructive suggestion. Barry Knight: Are there any other questions for Mr. Bourdon? Thank you gentlemen. I open it up for discussion amongst the Commission members. Dorothy Wood: I think he wants to say something else and I'll sponsor him Item #15 Rappahannock Sports, L.L.C. Page 17 Barry Knight: You will? Come back up sir and you're being sponsored by Ms. Wood if it is brand new information. Carl Wright: Yes it is. Barry Knight: Okay. Reintroduce yourself please Mr. Wright and just speak to the new information. Carl Wright: Yes sir. Carl Wright, 1144 Mondrian Loop. I just want to make this clear before you all make a decision. If you all approve this and this is not a success, we are stuck with a great big box on Warwick Drive that we have to look at, and the folks behind it have to look at it as long as they live there. We know there are a lot of these boxes around, the old HQs and places like that, and we are just stuck with them until they figure out what to do with them. So, when you all make this decision, I want you all to understand that we all live in this community. We're stuck with the situation. I understand what they're talking about with the scholarships and things like that but we have one of the finest recreation department in the City. We're talking about sports, and a lot of the kids in the community don't even participant in them. We do have some kids that do participate in soccer. It is great. We have a lovely soccer facility right here in Virginia Beach. I just wanted you to understand that if this is passed, and it is not a success, we are stuck with this great big box. Barry Knight: Thank you Mr. Wright. Dorothy Wood: As you would be with a Wal -mart or a K -mart. Carl Wright: Yes ma'am. But we we're hearing a lot of hear -says and most of the folks that I heard Mr. Bourdon refer to didn't have the same comment when it comes to this facility here. I'm a member of this community and I haven't heard that said. Dorothy Wood: I know you are and we appreciate it. Thank you. Barry Knight: Are there any other questions for Mr. Wright? Mr. Bourdon? Eddie Bourdon: Let me just correct one thing. There is absolutely no indoor soccer facility located in Virginia Beach or Norfolk or Chesapeake or Portsmouth. None. Barry Knight: We'll close the public hearing portion and open it up for discussion among the Commission members. Mr. Bernas? Jay Bernas: I think to address one of Mr. Wright's issues. I think the City was proactive in that we hired a consultant to really look at the need before we we're pursuing this, so the City did hire a consultant to look at the marketability of this indoor sports facility. I would also like to say that if you look at the traffic counts conservatively by -right, this will be a reduction of more than 20 percent, if not more. This seems like it is a very Item #15 Rappahannock Sports, L.L.C. Page 18 conservative average daily count. So, I think it is a nice facility. I think it is something that is needed. Our consultants are telling us that the City needs it. There is not one in the entire region. So, I would be in support of the project. Barry Knight: Are there any other questions or comments? Mr. Crabtree. Eugene Crabtree: I just want to say one thing. The reason why I asked Mr. Bourdon about Parks and Recreation, and as Jay said, they looked into this indoor facility or indoor arena type for things to be put in some of the Parks and Recreation property around the city. There are things for them to do in the future but it is way in the future. It is not in the immediate future. So, this does coder the need for the City with indoor facilities in the meantime before we do get something done by our Parks and Recreation people later on. Barry Knight: Thank you. Mr. Livas? Henry Livas: Yes. I analyze this and the complaints that were brought forth today. The main concern is traffic. Our staff has looked in to that and they indicated a lot of things that could be done under B-2, which would generate more traffic, so I would say that the traffic is not as a big issue as they think it is going to be. So, for that reason, I would support it. Barry Knight: Is there any other discussion? The Chair will entertain a motion. Eugene Crabtree: I'll make a motion that we approve the application as presented. Barry Knight: There is a motion on the floor by Gene Crabtree and seconded by Jay Bernas to approve agenda item 15, the application of Rappahannock Sports, L.L.C. Is there any discussion? I'll call for the question. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE Item #15 Rappahannock Sports, L.L.C. Page 19 Ed Weeden: By a vote of 11-0, the Board has the application of Rappahannock Sports, L.L.C. Eddie Bourdon: Thank you all very much. CUP for Communications Facility r r ro f 'b ids 2 i � CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of Cingular Wireless for a Conditional Use Permit for a communication tower on property located at 4021 Charity Neck Road (GPIN 2411550252). AICUZ is Less Than 65 dB DNL. DISTRICT 7 — PRINCESS ANNE. MEETING DATE: October 9, 2007 ■ Background: The applicant requests a Conditional Use Permit to allow development of a portion of a site zoned AG -1 Agricultural for a wireless communications tower, antennas, and associated equipment building. The proposed lease area will be developed with a 195 -foot tall communications tower and equipment cabinet. The proposed tower will accommodate up to four (4) wireless communication carriers. The Comprehensive Plan recognizes this site to be within the "Rural Area" with uses related to farming, forestry, rural residential and other rurally compatible uses. "From providing a legacy for a future generation of farmers, to providing habitat for wildlife, keeping taxes low, and maintaining the rural community, the vision for our rural landscape is important," (Pg. 161). ■ Considerations: The proposed tower location provides approximately 400 feet from the lease area to the closest residential property line. The location is beside an existing, tree - lined buffer along the northern property line, which will be less obtrusive and not as detrimental to surrounding properties as other locations. An additional buffer will be planted adjacent to the non-residential uses on the site, consisting of 50% indigenous grasses and shrubs and the remaining 50% with a mixture of 25% deciduous and 75% evergreen. The applicant submitted the required structural report indicating that the proposed tower's design meets the requirements of the Intemational Building Code and a Nonionizing Electromagnetic Radiation Report (NIER) indicating that emissions do not result in ground level exposure at any point outside the facility and is within compliance with all regulatory agencies and standards. In sum, staff concludes that the proposed tower is consistent with the standards provided in the City Zoning Ordinance for wireless communication towers. Also of importance in staff's evaluation is the need for wireless communication service in the southern portion of Virginia Beach, particularly as it pertains to enhanced emergency response and 911 communications. There are still portions of this Cingular Wireless — Charity Neck Road Page 2 of 3 part of the city that are not adequately covered by wireless service, rendering use of wireless devices for emergency calls moot. There was opposition to the request. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. The tower shall be constructed substantially in adherence to the site plans entitled "NO60XC833-C VEPCO Structure # 27/289 Sprint, Co -Location Transmission Tower", prepared by Alcoa Wireless Services, Inc., and dated 9/14/05 (issued for construction). This site plan has been exhibited to City Council and is on file with the Department of Planning. 2. The tower shall be limited in height to 195 feet. 3. The tower shall not be lit. 4. The applicant and / or owner shall plant Leland Cypress behind the existing trees on and along the along the portions of the property line shared with the adjacent property owner to the east of the tower. 5. The portion of the subject property between the tower and the adjoining property to the east will remain undeveloped and used only for agricultural purposes except as shown on the site plan. 6. The applicant shall install a board on board style privacy fence in lieu of the chain link fence. No barbed wire shall be permitted. Landscaping around the tower shall comply with the City of Virginia Beach requirements. 7. No signs indicating the location of this facility are allowed. 8. Unless a waiver is obtained from the City of Virginia Beach Department of Communications and Information Technology (COMIT), a radio frequency emissions study (RF Study), conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia, showing that the intended user(s) will not interfere with any City of Virginia Beach emergency communications facilities, shall be provided prior to site plan approval for the tower and all subsequent users. 9. In the event interference with any City of Virginia Beach emergency communications facilities arises from the users of this tower, the user(s) shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within a reasonable time, the user shall immediately cease operation to the extent necessary to stop Cingular Wireless — Charity Neck Road Page 3 of 3 the interference. 10. Should the antennae cease to be used for a period of more than one (1) year, the applicant shall remove the antennae and their supporting tower and related equipment. ■ 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: CINGULAR WIRELESS - CHARITY NECK ROAD Agenda Item 25 September 12, 2007 Public Hearing Staff Planner: Karen Prochilo REQUEST: Conditional Use Permit for a communications facility. ADDRESS / DESCRIPTION: Property located at 4021 Charity Neck Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24115502520000 7 — PRINCESS ANNE Total site 69 acres Lease sitel0,000 square feet SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow development of a portion of the proposed site for a communications facility and its associated equipment building. The proposed lease area will be developed with a 195 -foot tall communications tower and equipment cabinet. The proposed tower will accommodate up to four (4) wireless communication carriers. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Rural cultivated farmland with a single-family home. SURROUNDING LAND North: . Agricultural land/ AG -1 and AG -2 Agricultural District USE AND ZONING: South: . A church and single-family rural residential is directly adjacent to a portion of the southern property line. Across Gum Bridge Road is rural residential and agricultural land / AG -1 and AG -2 Agricultural District East: . Across Charity Neck Road is rural residential and agricultural land / AG -1 and AG -2 Agricultural District West: . Agricultural land / AG -1 and AG -2 Agricultural District NATURAL RESOURCE AND The site consists of farm fields and a single-family residence with CINGULAR WIRELESS - CHARITY NECK ROAD Agenda Item 25 Page 1 •. 1 ��M ADDRESS / DESCRIPTION: Property located at 4021 Charity Neck Road. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24115502520000 7 — PRINCESS ANNE Total site 69 acres Lease sitel0,000 square feet SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow development of a portion of the proposed site for a communications facility and its associated equipment building. The proposed lease area will be developed with a 195 -foot tall communications tower and equipment cabinet. The proposed tower will accommodate up to four (4) wireless communication carriers. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Rural cultivated farmland with a single-family home. SURROUNDING LAND North: . Agricultural land/ AG -1 and AG -2 Agricultural District USE AND ZONING: South: . A church and single-family rural residential is directly adjacent to a portion of the southern property line. Across Gum Bridge Road is rural residential and agricultural land / AG -1 and AG -2 Agricultural District East: . Across Charity Neck Road is rural residential and agricultural land / AG -1 and AG -2 Agricultural District West: . Agricultural land / AG -1 and AG -2 Agricultural District NATURAL RESOURCE AND The site consists of farm fields and a single-family residence with CINGULAR WIRELESS - CHARITY NECK ROAD Agenda Item 25 Page 1 CULTURAL FEATURES: associated farm buildings. Along the perimeter to the north and west are mature stands of trees. 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): Charity Neck Road is a rural local street. No improvements are currently planned. WATER & SEWER: Water and sewer are not available. The proposed use does not require service. FIRE: No comments at this time. COMMUNICATIONS AND INFORMATION TECHNOLOGY: The proposed site design is acceptable. A frequency spectrum (MHz) report is required to ensure that inference is not encountered with a City -owned facility located on Pleasant Ridge Road. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Comprehensive Plan: The Comprehensive Plan recognizes this site to be within the "Rural Area" with uses related to farming, forestry, rural residential and other rurally compatible uses. "From providing a legacy for a future generation of farmers, to providing habitat for wildlife, keeping taxes low, and maintaining the rural community, the vision for our rural landscape is important." (Pg. 161) Evaluation: The proposed tower at a height of 195 feet has been designed to accommodate up to three (3) additional providers, for a total of four (4) antennas. The application, when originally submitted, located the tower at 202 feet from the rear property line of the adjacent dwelling to the east, which was not in keeping with the requirements of the Zoning Ordinance for these types of towers. Section 232(b)(1) of the City Zoning Ordinance stipulates no communication tower be located closer to an existing residential structure than the distance equal to 125 percent of the total height of the tower. The applicant worked with staff and relocated the proposed lease area for the tower to a point further west from the original location. The revised tower location provides approximately 400 feet from the lease area to the residential property line. The revised location is beside an existing, tree -lined buffer along the northern property line, which will be less obtrusive and not as detrimental to surrounding properties. It is recommended, however, that an additional buffer be planted adjacent to the non-residential uses on the CINGULAR WIRELESS - CHARITY NECK ROAD Agenda Item 25 Page 2 site, consisting of 50% indigenous grasses and shrubs and the remaining 50% with a mixture of 25% deciduous and 75% evergreen. The applicant submitted the required structural report indicating that the proposed tower's design meets the requirements of the International Building Code and a Nonionizing Electromagnetic Radiation Report (NIER) indicating that emissions do not result in ground level exposure at any point outside the facility and is within compliance with all regulatory agencies and standards. In sum, staff concludes that the proposed tower is consistent with the standards provided in the City Zoning Ordinance for wireless communication towers. Also of importance in staffs evaluation is the need for wireless communication service in the southern portion of Virginia Beach, particularly as it pertains to enhanced emergency response and 911 communications. There are still portions of this part of the city that are not adequately covered by wireless service, rendering use of wireless devices for emergency calls moot. The wireless communication providers are required to provide 911 connectivity, and the antennas located on this tower will assist in meeting that requirement and ensuring the safety of those living or traveling in this area of the city. CONDITIONS 1. The tower shall be constructed substantially in adherence to the site plans entitled "N060XC833-C VEPCO Structure # 27/289 Sprint, Co -Location Transmission Tower", prepared by Alcoa Wireless Services, Inc., and dated 9/14/05 (issued for construction). This site plan has been exhibited to City Council and is on file with the Department of Planning. 2. The tower shall be limited in height to 195 feet. 3. The tower shall not be lit. 4. The applicant and / or owner shall plant Leland Cypress behind the existing trees on and along the along the portions of the property line shared with the adjacent property owner to the east of the tower. 5. The portion of the subject property between the tower and the adjoining property to the east will remain undeveloped and used only for agricultural purposes except as shown on the site plan. 6. The applicant shall install a board on board style privacy fence in lieu of the chain link fence. No barbed wire shall be permitted. Landscaping around the tower shall comply with the City of Virginia Beach requirements. 7. No signs indicating the location of this facility are allowed. 8. Unless a waiver is obtained from the City of Virginia Beach Department of Communications and Information Technology (COMIT), a radio frequency emissions study (RF Study), conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia, showing that the intended user(s) will not interfere with any City of Virginia Beach emergency communications facilities, shall be provided prior to site plan approval for the tower and all subsequent users. 9. In the event interference with any City of Virginia Beach emergency communications facilities arises from the users of this tower, the user(s) shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within a reasonable time, the user shall immediately cease operation to the extent necessary to stop the interference. CINGULAR WIRELESS - CHARITY NECK ROAD Agenda Item 25 Page 3 10. Should the antennae cease to be used for a period of more than one (1) year, the applicant shall remove the antennae and their supporting tower and related equipment. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. 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. 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NN 084- NPo63 L `', �' •• � NF051 NF357 N 35 �NFI52 f 4 NF228 � I C NF157 '`-11 NF070-- NFO58 I r�bNF09�1��� A NF343B F NF095 NF34113 ;44 rS NF067� SNF158 @t NF340B NF276 N NF339 F096 r NF170 CB NF068 + NF338\� NF005 Chesapeake City NF175 NF159 Cts NF031 NF153 NF156 r NF i NF327 V. F089\ F300A NF054 Legend _Sites Status 4n Air Sites Planned Sites NF092 r; NF063 inia Beach City NF320 :B NF093 J� NF322 NF065 CP NF021 t NF323B �3 NF324 NF076 NF301 (56 NF097 j NF098 ,Z NF309 1p NF325B_ & NF310 Currituck County Item #25 Cingular Wireless Conditional Use Permit 4021 Charity Neck Road District 7 Princess Anne September 12, 2007 REGULAR Joseph Strange: The next item is item 25, Cingular Wireless. An application of Cingular Wireless for a Conditional Use Permit for a communication tower on property located at 4021 Charity Neck Road, District 7, Princess Arnie with seven conditions. Barry Knight: Welcome ma'am. Lisa Murphy: Good afternoon. I would say good evening but it is not quite that late. My name is Lisa Murphy. I'm a local attorney and I'm here today on behalf of the applicant. I've got to commend Stephen White. He did a great job earlier this morning in trying to explain to you why you're going to be seeing so much more of myself and the other folks who do wireless work. And, I thought the best way to kind of give you a sense of what is going on, and you all have that map. If you look at the map that you have you will notice all of the white, sort of triangles or existing sites that are on the air. And you will see they are predominately in the northern part of the city. That is also really where most of the population is. Where you have those sites you got already your basic network built out, and what you're starting to see in the northern part of the city is really sort of fill in and capacity sites. So areas where they find there is a lack in coverage, they come back and try to complete the coverage. And you will notice, if you look at your maps, if you look along the interstate just how close those towers are, and somebody has asked the question, "well how many, how close"? And it really depends on whether or not you're talking about your basic network, which is what we're talking about in the southern part of the city or you're taking about filling in sites. So, if you look down to the area where we are and the site that we're talking about in particular is noted in purple as a proposed site, and that is 308. If you look around that there are very few of these white existing sites that are already turned on. There just a lot in there. And that is really going to mirror what the prorogation maps show on this map. On this map or just sort of spotty coverage, white is very limited to no coverage, especially none inside buildings and the green is that good solid coverage. So, as you would expect from the map that shows the great distance of the existing towers from this particular location, there is a huge area that is white with no coverage or just spotty coverage in that area. With this particular tower, we're able to fill in a great deal of that with the green, which is a very good coverage, and also pick up a whole lot of orange to get us to connect with those other sites that are on the air. The biggest difference, I think between the heavily populated cities and the southern parts is that the network just hasn't been built out. Your basic backbone of sites, and I was thinking about it this morning and it is almost like your power. You start out with a big transmission towers and as they get into the certain heavily populated area, Item #25 Cingular Wireless Page 2 they can get lower and lower with the poles. Somewhat similar to that but except for with antennas the way they work they have to be up higher than what they are trying to communicate with on the ground. So, it is not a perfect analogy but that's basically the technology. The other reason why you're seeing so many of these, interestingly, after September 11, when the capital markets tanked, so did funding for the wireless companies. And those of us who do this type of work saw a real dip in the work. And instead of continuing to build out their networks, the carriers told their engineers that "hey, we have every limited funding, tell us what your top ten sites are in all of Hampton Road or all of Richmond, and we'll try to plug in those holes". So, we're now seeing the funding come back around and that's part of the reason why you're starting to see more of these applications. The particular application, again, is off of Charity Neck Road just to sort of orient you. There is Charity Neck Road (pointing to PowerPoint). The tower site is over here. There is a nice natural buffer of trees in through here. And actually, a ditch, sort of a water line, that comes in through there, so it actually makes a pretty good buffer. There are floodplains that run in through here. And, what we've tried to do over the course of months and working with the property owner, is to try and get this tower back into an area where we can get some of the benefit of those trees but yet stay out of the floodplain, and stay far enough off that canal that goes through there and the area where we can't campus the tower. So, we picked this particular location for the tower, as it is mentioned in your staff report. It is a 195 foot tower. This drawing shows it a little bit but there is actually where the sort of tree line comes out. It jets out a little bit here and then goes back in and jets out again there. So, there is a benefit of a little jet out of trees right in that area. The tower itself, they're going to put to the absolute corner so it can make the most use out of that tree line. That shows you that point right there would be the tower. So, it is far enough off of the tree line to get away from the water issues there but yet, you see this, where the tree line jets out here, we get some of the benefit of that putting the tower right in that particular location. The proposed tower is 195 feet. It is a monopole design, which you all discussed somewhat. The monopole design is actually fairly standard. It allows for collocation, in this case at 195 feet, we can get four carriers on it. The carriers all work very closely together. AT&T is the carrier who is building this particular tower with Cingular Wireless. But there will be others who will come on and will be able to share that tower. A monopole design is one of the least visually intrusive types of designs because you got a pole which is essentially 6 to 8 feet in diameter at the base, and then and you see it tapers as you get to the top, and it can taper up to 3 feet in diameter at the top. And, then you got the antennas attached there. So, as far as the pole portion of it, as was mentioned this morning, that tends to blend in with the background. In the area of, as was mentioned, to the north of this site, there is actually a City owned tower at the Mosquito Control Center there at Pungo. That tower, as was mentioned is over 400 feet tall, and it can be seen really quite a distance. So, we're talking about a tower that is twice the height of our tower. It is a lattice design and it is painted orange and white, which is required by FAA. So, by comparison, our monopole will be half the height essentially. We've added as a condition, I think, Ms. Prochilo provided to you that it will not be lit. I've got a FAA determination that I can give you that indicates that the tower itself will not pose any type of threat or hazard to air travel. I think there was initially a question that came in. We got the determination Item #25 Cingular Wireless Page 3 from the FAA that indicates no hazard, no lights required. And, I met with the gentleman in charge of the local airport and he was very comfortable once I had explained to him and provided him with a copy of that report. In meeting with and communicating with the directing adjacent property owner, there is a home on this property over there and a trailer, a one-story structure on that property. And the concern was the view shed to the tower, and again, as it was mentioned this morning, we've gone back a distance of 409 feet, so it is quite a distance away. But the concern was what would be seen from that one-story structure. So, what we've done is added conditions that would essentially add tree plantings. You see, your access is going to come along through here. We've added a conditional indicating that there will be Leland Cypresses planted along this property line and then most importantly along this property line. Also, we've added a condition that the area between the tower and the property will not be used for anything but agricultural and access, and then the tower itself, in addition to the city required landscaping around the base, we've actually added a board on board fence. So what will be seen will be very heavily screened and very heavily buffered from the ground level. And, I'm happy to answer any questions. Barry Knight: Are there any questions at this time for Ms. Murphy? Lisa Murphy: I'm sorry, one other thing. We actually have a petition of folks who are in support of the tower. I'll pass that out as well. Barry Knight: Are there any questions of Ms. Murphy? Okay. Thank you. Lisa Murphy: Thank you. Joseph Strange: Speaking in opposition we have James Diersen. Barry Knight: Welcome sir. James Diersen: Good afternoon to the Commission. My name is James Diersen. I live at 1780 Gum Bridge Road, which is the house that you see just to the left of the blue line. And, I just have a couple of concerns about this. Since no one bothered to come to the homeowners around the property and address this, and not to take up my whole three minutes but I didn't receive my notice about the meeting until yesterday at noon also, although it was dated August 28, 2007. It is my understanding that the purpose of the zoning regulations is to protect the health, safety, well being, and property values of the community. I don't see where this is going to do many of those. I feel that the current residents are being forced into an involuntary exposure of RF radiation hazards. I have serious concerns about the flooding issues where they're proposing to put this tower. I'm happy to have the luxury of having waterfront property several times a year from right here all the way to here (pointing to PowerPoint). And, I've actually seen this entire area, which doesn't drain very well now, completely under water. My barn sits right here and the horses have a high flat area to stand in my yard right there. So, they stand on the hill and all of this has ducks in it swimming around. I'm concerned that when they put this Item #25 Cingular Wireless Page 4 roadway in and they build this tower, it is definitely not going to be below the floodplain, and all of this that you see right here and this tree line going back drains this way across this road and out towards Newbridge. When they put this road in this isn't going to anything to enhance that drain. It is actually going to hurt it. So, I'm questioning on what's being looked at for that? Has the Army Corp. of Engineers been contacted? The DEQ? Has there been any environmental impact study done on what this is going to do in that area? Also, it wasn't really answered by the previous presentation but I'm wondering in the rural section of Virginia Beach that were supposedly not developing, is this going to serve existing customers or are they simply putting this tower up with the idea they will be the first people with tower that can sell space on it, and then that way when they do start to develop below the green line, they will be the first people with the tower up and ready to service or are they putting it up for the people already there now because we don't have good coverage? That is all that I have. Barry Knight: Are there any questions for Mr. Diersen at this time? Donald Horsley: The only comment that I will make is probably putting it up the hill helps us to keep coverage and get coverage. James Diersen: I have Verizon. I get great coverage at my house. I don't know very much about this and I wasn't going to be involved in it until I was drug into it by local residents that I talked to oppose it. No one came to and said this is what we're planning to do. How do you feel about it or anything else? I did Google it. I got 1.2 million hits on cell phone towers and RF radiation and things of that nature. It is constantly being studied. There is a lot of stuff going on with it. I was diagnosed with cancer two years ago. I moved out to the country. I don't particularly want to live next to a cell phone tower. I don't see where that adds any value to my property. It is going to take away and you're going to have all these other concerns with flooding and everything else. It is not just "I don't want it in my backyard" situation. There is a lot of area out there in Pungo. The airport has opened up. I have planes flying low over my house all the time. Ultra lights fly over the house. They fly, close enough that they can see us wave in my pool. So, I have concerns, also. Before they said there is no concern with the air traffic, yet the planes fly very low. It doesn't bother me. They are old planes. They're nice to look at. But, the tower would definitely be sticking out above the tree line and it will cause a hazard. Barry Knight: Are there any questions of Mr. Diersen? Thank you. James Diersen: Thank you very much for your time. Joseph Strange: Our next speaker in opposition is Maria Benetz. Barry Knight: Welcome ma'am. Maria Benetz: Thank you. Hello. Thank you very much. Item #25 Cingular Wireless Page 5 Barry Knight: Please state your name for the record. Maria Benetz: Maria Benetz. Dear Members of our Planning Commission and all people present. Thank you for this moment. My name is Maria Benetz and I'm speaking for my dear mother Elizabeth Benetz, who just turned 85 years young September 7, 2007. My mother is the landowner of 4001, and my little cottage of 3973 Charity Neck Road. I'm not only speaking for myself and my mother but for many, many residents of our dear Pungo. These are residents of beautiful homes on Pleasant Ridge, Charity Neck Road and new homeowners across from historic 1789 Charity United Methodist Church, and the residents on and off of Gum Bridge and Dawley Road. All of these residents, taxpayers and voters of the City of Virginia Beach who have signed this petition against this 195 foot monopole cell tower on the property of 4021 Charity Neck Road. I am speaking for all of these undersigned residents who do not wish to walk out of their front or back doors and look up into the sky and see this 195 foot monopole of Cingular Wireless because we chose this field and landscape in their natural beauty. God Bless you! Thank you. Barry Knight: Are there any questions of Ms. Benetz? Ms. Benetz, you live in the top right hand corner just outside the blue? Is that correct? Maria Benetz: Yes. Barry Knight: Are there any questions? Dorothy Wood: I would like to thank Ms. Benetz for spending her day with us. She was here when we arrived this morning. You are certainly a lovely lady and I watched you with your mother today. You're a very lovely lady. Maria Benetz: Thank you. God Bless you! Barry Knight: Are there any questions? Okay. Thank you. Joseph Strange: That concludes our speakers. Barry Knight: Ms. Murphy? Lisa Murphy: Just a couple of points. One that I wanted to really discuss especially sitting through today's applications, the type of use that we're talking about is an incredibly passive use. There is no parking. There are no crowds. There are no traffic issues. It is essentially but for the stroke of Congresses' pen, a public utility, although it is not really a public utility. Once the tower is actually built it will be visited maybe once or twice a month by each carrier that is on it and that is just to go out and make sure that the antennas are still working properly. So, as far as the other types of planning uses that you consider an impact, it is a very low impact use frankly. The added benefit, again, towards being able to on a large piece of farm land, and this happens so many times in Item #25 Cingular Wireless Page 6 rural applications especially, this is farmland that will remain in agricultural use. Most of the folks that end up becoming landlords, they have large pieces of property. They do it so they can keep from developing that property. The development is really coming all around us. And we mentioned to Ms. Benetz when we met with her and to others this really prohibits this property from being developed in any other way. It is not going to be a neighborhood. It will be as you see it now for a very long time. That is predominately because the commitment that the landlord has to the tenant can get up to be a 15 to 20 year commitment. So, that really locks in the use and this very passive use, which I think is a benefit to the area because it is something again, that won't add traffic. Cingular Wireless, which is now known as AT&T is licensed by the Federal Government, as you know to provide wireless services. There are other carriers who are also interested because they're licensed by the federal government, they have to go through a higher level of scrutiny, if you will, as far as environmental review, need for review, so they have to comply with all the federal laws, in addition. When we met with Ms. Benetz, we offered and asked her to invite the other folks who she said had interest to come to the meeting at her home, and it was just herself and a relative and another gentleman. So, we did try to reach out to the group. And again, this is really an amenity and a public utility for the folks in the area who don't have the coverage and service at this point. I thank you. Again, staff recommends approval of the application and it does comply with your Zoning Ordinance. Barry Knight: Thank you. Are there any questions? Ms. Wood? Dorothy Wood: Lisa, we couldn't read your signatures. Lisa Murphy: I have a better copy. Dorothy Wood: Maybe you could just tell us. We have a lot of signatures on Charity Neck that are opposed to it, so where are the people? Lisa Murphy: There are about 50 in support. They are on Pleasant Ridge, Princess Anne Road, Morris Neck, Gum Bridge, Muddy Creek, Pleasant Ridge, Charity Neck, Mill Landing, Charity Neck, Charity Neck. Dorothy Wood: It is hard to believe that there are this many people there that have signed both. I mean looking around. Lisa Murphy: Well it is interesting because my assistant, her family lives very close by and she looked at the list and she said that was one of my teachers in elementary school. I know that person and sort of a who's who. But I will give staff the original written copy so that you can see much more clearly. As you all probably know from sitting through a lot of these, the people who want the service are usually the people who don't show up at these hearings. I mean it is very rare that folks come to speak in support other than the carrier who is doing the application, and then the other carriers. I can tell you that we are actively marketing this site to Verizon and to some of the other carriers to see Item #25 Cingular Wireless Page 7 if there is interest. And on some of our tower applications, there will be one or two other carriers that will be involved. Dorothy Wood: Thanks. Barry Knight: Ms. Wood, I asked Ms. Murphy to email me her petition because I had the opposition petitions so I can try to compare them. And, I recognize a lot of names on both of the petitions. I'm not going to say that it is equally divided but there are a lot of names on both petitions. Dorothy Wood: Thanks. Barry Knight: They are from within the area too. Lisa Murphy: You know the most striking thing and the thing that folks ask me the most was "what about the orange and white tower to the north"? Because it is really sort of stand -out feature that you can see from many directions. My clients have spoken with the City about that. I confirmed with the City that this isn't a tower that there isn't leasing space on. Barry Knight: Are there any other questions of Ms. Murphy at this time? Mr. Horsley? Donald Horsley: The revised conditions that we have here, I saw you meeting with the Benetz after our informal session this morning, and did you address these with the opposition, and are they comfortable with these conditions? Lisa Murphy: I won't speak for Ms. Benetz but I think she was more comfortable because this obstructs the view but I don't know that she would ever be comfortable. Donald Horsley: But you did go over these because they are different then the ones in our packets. Lisa Murphy: Yes. The last, I think starting from the tower won't be lit down. Karen Prochilo: Excuse me. I just want to bring up that the conditions are similar to what you had provided Lisa Murphy with but we incorporated them into the report and the numbers are not the same. Lisa Murphy: Okay. So, I think there was originally a condition about the landscaping around the base of the tower and to that was the board on board fence. The Leyland Cypress along the property lines. That was added. The commitment to keep the area between the tower and the property line in either agricultural use or just as shown on the site plan, which would essentially be the road. Those were all added. And, also since we know that the tower will not be lit we added that as a condition as well that it will not Item #25 Cingular Wireless Page 8 have a light on it. But those were all things that we offered up and discussed with that with the property owner. Barry Knight: Are there any other questions for Ms. Murphy? Thank you. I'll open it up for discussion. Is there any discussion? I'll add a little postscript on it I guess. Mr. Chaplain, it is nice to see you sitting here today. I know that you're the property owner. I see down at the bottom right hand corner where Charity Neck Church is and Charity Neck Cemetery is, and you're well aware of it because you live across the street. But I don't go to Charity Neck Church. It is not going to affect my vote whatsoever. But, sure it would be nice if they could expand there cemetery into your property. So, I just thought I would put a plug in for the church. Is there any discussion? The Chair will entertain a motion. Donald Horsley: I spoke with Benetz earlier on a couple of months ago as they called me in concern and I told them at the time, and I wasn't being facetious, I said I'm looking out my back window and where there is a tower and I really don't see a tower. And, I think the perception and rightfully so, these people just don't know what to expect when one of these are put up. But, we got use to having a tower, very close and close proximity to where we live. Unless you really walk out your backdoor and look up in the air, you really don't even know it is there. A lot of people walk around their yard and they don't really realize a tower is there unless you look up. Quite often, they have a tendency to blend in with the sky depending upon the atmospheric conditions. There are needs for these. The city is changing technology that we have. It is more and more prevalent everyday so there is a need for more towers in our area. This may not be the perfect site. It is a site that the applicant chose and that is the one that is before us today and that is the one we have to vote on. It may be another site that would be a little bit better and even more easier to pass, but there wouldn't be as much opposition or it may not have any opposition, but that is not here today. This is the one to pass. I know we appreciate the concerns of the neighbors but I think the applicant has done all that it can do to make this thing less intrusive on their property. So, at this time, I make a motion that we approve item 25, Cingular Wireless Charity Neck Road application. Barry Knight: And I have a second from Al Henley. So, there is a motion made to approve the application by Don Horsley and a second by Al Henley. Is there any discussion? I'll call for the question. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE Item #25 Cingular Wireless Page 9 LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved the application of Cingular Wireless on Charity Neck Road. 1 03/24/80 Conditional Use Permit for 18 single family homes Granted 2 10/12/92 Conditional Use Permit for 1 single family home Denied 3 04/16/84 11/12/02 Conditional Use Permit for church addition Conditional Use Permit for church expansion and preschool I Granted ZONING HISTORY CINGULAR WIRELESS - CHARITY NECK ROAD Agenda Item 25 Page 9 Federal Aviation Administration Air Traffic Airspace Branch, ASW -520 2601 Meacham Blvd. Fort Worth, TX 76137-0520 Issued Date: 07/30/2007 Carol Murphy Cingular Wireless LLC 4801 Cox Road Glen Allen, VA 23060 Aeronautical Study No. 2007 -AEA -3524 -OE ** DETERMINATION OF NO HAZARD TO AIR NAVIGATION ** The Federal Aviation Administration has conducted an aeronautical study under the provisions of 49 U.S.C., Section 44718 and if applicable Title 14 of the Code of Federal Regulations, part 77, concerning: Structure: Antenna Tower Pleasant Ridge Road-NF308C Location: Virginia Beach, VA Latitude: 36-40-41.77 N NAD 83 Longitude: 76-0-5.53 W Heights: 195 feet above ground level (AGL) 197 feet above mean sea level (AMSL) This aeronautical study revealed that the structure does not exceed obstruction standards and would not be a hazard to air navigation provided the following condition(s), if any, is(are) met: Based on this evaluation, marking and lighting are not necessary for aviation safety. However, if marking and/or lighting are accomplished on a voluntary basis, we recommend it be installed and maintained in accordance with FAA Advisory circular 70/7460-1 K Change 2. This determination is based, in part, on the foregoing description which includes specific coordinates, heights, frequency(ies) and power. Any changes in coordinates, heights, and. frequencies or use of greater power will void this determination. Any future construction or alteration, including increase to heights, power, or the addition of other transmitters, requires separate notice to the FAA. This determination does include temporary construction equipment such as cranes, derricks, etc., which may be used during actual construction of the structure. However, this equipment shall not exceed the overall heights as indicated above. Equipment which has a height greater than the studied structure requires separate notice to the FAA. This determination concerns the effect of this structure on the safe and efficient use of navigable airspace by aircraft and does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or regulation of any Federal, State, or local government body. A copy of this determination will be forwarded to the Federal Communications Commission if the structure is subject to their licensing authority. Pagel of 3 If we can be of further assistance, please contact our office at (817) 838-1995. On any future correspondence concerning this matter, please refer to Aeronautical Study Number 2007 -AEA -3524 -OE. Signature Control No: 528183-100595439 Alice Yett Technician Attachment(s) Frequency Data Page 2 of 3 (DNE) Frequency Data for ASN 2007 -AEA -3524 -OE LOW HIGH FREQUENCY ERP FREQUENCY FREQUENCY UNIT ERP UNIT 1850 1910 MHz 1640 W 1930 1990 MHz 1640 W Page 3 of 3 Jul 20 07 01:48p Dan Bendl 8GG-805-1429 07/09/2007 14:16 8042739225 SAI COMMUNICATIONS HARVEY L. PARIS PNC. LA ji SURVEYING P.O. BOX 3595 4508 W. MJNDRED ROAD C[iEMWE VA 23831 PEL (804)-748.8641 FAA 1-A SURVEY CEitT FICATION Appliclut: Cingtilar Wiroless Site Name: PLEASANT RIDGE ROAD NF308C 4021 Cbarity Neck Road Virginia Beaeb, VA 23457 Structure Tow-- Proposed 1951 Monopole .Latitude: North 36°40'41.771" (NAD 83) tmg tadr. West 076'00'05.536" (NAD 83) Gmulmd 0evsitlon: 1.5f NAVD 88 p.1 PAGE 03 Cwtgkafift.; I certify that the latit r of North 3644'41.771" and the longitude of West 076`00'05.536' are accurate to within * 20 &et horizontally, and tlot the site ekvatim of.1.5* NAVD 88 is accurate to W#NB t 3 foet Vestteslly. Surveyor. Harvey L. Parlor Date' May 29, 2007 HARVEY L PARKS M. 1243 t*—s U�', S We the undersigned residents, taxpayers, and voters of the City of Virginia Beach due here by PROTEST this proposal CINGULAR WIRELESS 195 foot monopole cell tower on the property of 4021 Charity Neck Road in Pungo, VA. SIGNATUREDATE ADDRESS AMM WAXAMM MRS111511AMOM F G _173. . MA AA AN 372M PRO �l ��... � � / � � L �. � , • • .til./�+./ a 415, AW FAFM ✓J A ` • s S7 7 97 2:?�T 7- SIGNATURE DATE ADDRESS 30.Ae �r'7 vod G VAIn VA 3 . � 31. 06 L lU lvy —C 32.- 1 1 &L -5 �Rb G 33. jrl 1,77 S3 3 34.A"4, (�,l �U o-7 L(/(S i/t-4j,-IV CA - 4-lot0-� lot 0-� q,Lir — Vf-� 23 37. Lll _ v. c�c7'1 G n 1f 38. AA�a �-2- 40. s 41. Q a 1 a '�6 �� 42. d ! '7 —21" 43. QA5 44. 45. �- ZU � 32�u���( l�f [� L3g5 4 . , . �� 2l ��� 15 3 r6 47. 48, .. K , 49. 51. Ct�;i J 53. - lG /� �C- tel` �d Q (� a 3 O S 54.E p 3 55..;'� 5 3a � 3�5 56. GY�'v`' 58. 59.6 ELL v 1 J SIGN DATE ADDRESS 61.E " 63.. t�-- 4 ;L,4 6 65. 67. 68. 69. 70'. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. SIGNATLJIZE DATE ADDRESS 92. a /dAll 213-. J S ys GDk�� b �- l D S P/,'A 94. t L� ! eas cc,�i Z 2CtSa- - 2" 98. t-- 1410-71-73-1ILA On I�e i 100. 101.g7- c e0 102. --1"�� I ec 1 e4.s�,1 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. S� 57 �3y�� G10A -2-4- -2 f2o-zL SIGNATURE DATE ADDRESS 123. . p/LL U -41?6vAt WKI OW x o*t v.g2. 124..0 125.E 126. 127. 128. 129. 130F. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. Pagel of 2 Karen Prochilo From: George J. Piccillo [George. Piccillo@VBSchools.comj Sent: Wednesday, August 08, 2007 12:36 PM To: Karen Prochilo Subject: RE: Cingular Wireless Thank you for the information. Unfortunately, since classes at school would have resumed by September 12, 1 will most likely be unable to attend the hearing without taking leave and missing one of the first days of school. For what it's worth, please note that my wife and I are in opposition to the current location of the tower. George Piccillo From: Karen Prochilo [mailto:KProchil@vbgov.com] Sent: Wed 8/8/2007 11:29 AM To: George J. Piccillo Subject: RE: Cingular Wireless Dear Mr. & Mrs. Piccillo — The Cingular Wireless at Charity Neck is deferred from the August meeting. They are regrouping with some revisions and will be on the September Agenda. Sorry if there was an error in the delivery. If you are an adjacent property owner, there should be another notice coming concerning the September hearing date (which would be September 12th). Thank you for emailing. If you do have opposition it is always important to try to attend the hearing to voice your concerns. Sincerely -karen Prochilo Department of Planning Municipal Center - Bldg 2 2405 Courthouse Drive Virginia Beach, Va 23456 voice 757-385-4298 fax 757-385-5667 kprochil@vbgov.com From: George J. Piccillo[mailto:George. Piccillo@VBSchools.com] Sent: Tuesday, August 07, 2007 1:35 PM To: Karen Prochilo Subject: Cingular Wireless Dear Ms. Prochilo: Due to a delivery error to our new home on 4036 Charity Neck Road (GPIN 2411-64-2658) we did not receive notification of the hearing regarding the proposed wireless tower located at 4021 Charity Neck Road until today. Please be notified that we are opposed to the location of the tower as currently proposed. It is our belief that at the very least the tower should be moved further back into the adjacent woods to a less intrusive position so that the current resident next to the tower location would not have such an eyesore immediately behind their home. We are also concerned regarding the amount of low-flying air traffic from the Virginia Beach Airport which is due west of the proposed tower. It would appear that this towers' location may pose a safety threat to the operations of the airport. Finally, we are opposed to this proposed location as it causes the intrusion of a more commercial influence in the agricultural atmosphere of this community which was the very reason we purchased our lot on Charity Neck Road five years ago, built our home there this spring and moved here from the Kempsville district. I will make every effort to attend the Planning Commission hearing. Page 2 of 2 Thank you, George and Lisette Piccillo Page 1 of 1 Karen Prochilo From: IAM3X@aol.com Sent: Wednesday, August 08, 2007 11:23 AM To: Karen Prochilo Subject: Fwd: Cingular Wireless application for a communications tower at 4021 Charity... Attachments: Cingular Wireless application for a communications tower at 4021 Charity Neck Rd Karen, Attached is the email to Mrs. Henley I mentioned in our telecon this morning. If you have any questions do not hesitate to give me a call. Take Care, Cecil E. Nichols Get a sneak peek of the all-new AOL.com. Page 1 of 2 Karen Prochilo From: IAM3X@aol.com Sent: Tuesday, August 07, 2007 2:32 PM To: Barbara Henley Subject: Cingular Wireless application for a communications tower at 4021 Charity Neck Rd Attachments: CECILE-2.DOC Dear Mrs Henley, I am writing this to express my opinion on the Subject Application for a Cingular Wireless Tower at 4021 Charity Neck Road. I had hoped to present my views at the Planning Commision Hearing on Wednesday August 8th but unfortunately I cannot attend due to a previous commitment. My property and home is at 1789 Gum Bridge Road across from the proposed site. I feel that this Application should be rejected for several reasons: (1) The proposed site is adjacent to Charity United Methodist Church which although it may not be on the registry of historic sites is nevertheless a historic site and House of Worship. (2) My home at 1789 Gum Bridge Road is also a historical property. Although my house is covered with conventional vinyl siding, it is actually a very old log house made from hand-hewn timbers. As such, I have had numerous opportunites to register my home as a historic site. (3) The presence of a communications tower will undoubtedly adversly affect property values in the immediate area and destroy the historic beauty and simplicity of this important historical neighborhood. (4) There is a health hazard for those whose homes are in the immediate vicinity of said proposed communications tower. Back in May 1990 a proposal by AMERICAN EAGLE COMMUNICATION to build a Broadcast Tower on Gum Bridge Road was denied by City Council. At that time I presented to City Council evidence based on prior studies that living in close proximity to Broadcast Towers is hazardous to human health. The Cingular Tower will be for the transmission of microwaves which on the surface seem to present no problem; however, said microwaves are modulated which bring them down to the ELF Frequency Range which is where the health problems occur. You were our Council Representative at that time so I attach a copy of my notes from that meeting which give a full explanation of the facts. To my way of thinking one of the duties of All Government is to insure the health and tranquility of its citizens. Another important duty is to preserve the historical areas of our city for future gernerations. I thank You for your continuing service to the Citizens of Virginia Beach. Sincerely and with Best Wishes, Cecil E. Nichols NASA/Langley Research Center, Retired 1789 Gum Bridge Road telephone: 721-3864 email. IAM3X-aoLcom Qi')'7i'70m Page )_ ot 2 ... ....... . ...... Get a sneak peek of the all-new AOL.com. 8/27/2007 TA Let clu 7A� 14- Le r 4-,r� G,J.��.. ---.._._-���-�----- -Gin•,-�----�.._. By signing this petition I am stating that I do not object to the Cingular/AT&T Cell Tower located on my property at 4021 Charity Neck Road. Name Address Phone 4 By signing this petition I am stating that I do not object to the Cingular/AT&T Cell Tower located on my property at 4021 Charity Neck Road. Name Address V, tJav--,+L, Q--ecL 2� cvw i /L �. ��� �� ._�� > rr ,.� ir� 57 P Phone # -72/-7C L By signing this petition I am stating that I do not object to the Cingular/AT&T Cell Tower located on my property at 4021 Charity Neck Road. Name Address Phone # By signing this petition I am stating that I do not object to the Cingular/AT&T Cell Tower located on my property at 4021 Charity Neck Road. Name Address Phone # CUP for Nome Occupation sz u� �t r! CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of Greg Smith for a Conditional Use Permit for a home occupation (making and selling glass bead pendants) on property located at 594 Van Buren Court (GPIN 1486576552). DISTRICT 3 — ROSE HALL. MEETING DATE: October 9, 2007 ■ Background: The applicant requests a Conditional Use Permit to allow a home occupation for glass blowing. The applicant proposes to run a business making and selling glass bead pendants. This site is located in a Primary Residential Area as designated by the Comprehensive Plan. The City's Comprehensive Plan states that the objective of the Primary Residential Area is to protect the predominantly suburban character that is defined, in large measure, by the stable neighborhoods of the Primary Residential Area. Proposed development within the Primary Residential Area should focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. ■ Considerations: Home occupations are typically appropriate conditional uses within residential areas provided the requirements established in the City Zoning Ordinance are adhered to, such as, but not limited to, restricting the amount of area that can be used for the home based business, prohibiting the use of signage, and generating no additional traffic than what is customary of a residential street. The applicant's product will be produced in the garage attached to the house, where the applicant already does glass blowing as a hobby. The majority of the sales will be done over the Internet. Some of the pendants will be sold to galleries and stores for wholesale. The applicant is the main employee but does have some assistance from his wife. The minimal activity related to this proposal is not likely to adversely impact the surrounding properties in any way. From the exterior of the house, business activity associated with the proposed home occupation should be virtually undetectable. The proposal is compatible with the adjacent residential neighborhood and consistent with the criteria found in Section 234, Home Greg Smith Page 2of2 Occupation, of the Zoning Ordinance. There are no employees, few deliveries, and only a small number of individuals coming to the house for merchandise. The Planning Commission placed this item on the consent agenda because they concluded the proposed use will not impact surrounding properties, the proposal is consistent with the Zoning Ordinance's criteria for home occupations, and there was no opposition. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following conditions: In accordance with Section 234 of the City Zoning Ordinance, not more than twenty (20) percent of the floor area of the dwelling unit and accessory structure shall be used in conjunction with the home occupation. 2. No signs advertising the business shall be permitted on the premises or installed on the lot or buildings on the lot at any time. 3. There shall be no individuals employed by the applicant to assist with the home occupation other than one family. 4. Sales to the general public of product or merchandise shall not be permitted on the property. 5. The home occupation shall not create noise, dust, vibration, smell, smoke, glare, electrical interference, fire hazard, or any other hazard or nuisance to any greater or more frequent extent than would normally be expected in the neighborhood under normal circumstances wherein no home occupation exists. ■ 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: _ �1� GREG SMITH Agenda Item 8 September 12, 2007 Public Hearing Staff Planner: Karen Prochilo REQUEST: Conditional Use Permit for Home Occupation (Glass Blowing) ADDRESS / DESCRIPTION: Property located at 594 Van Buren Court. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 14865765520000 3 — ROSE HALL 8,318 square feet SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow a home occupation for glass blowing. The applicant proposes to run a business making and selling glass bead pendants. The product will be created in the attached garage, where the applicant already does glass blowing as a hobby. The majority of the sales will be done over the Internet. Some of the pendants will be sold to galleries and stores for wholesale. The applicant is the main employee but does have some assistance from his wife. The hours of operation will be Monday through Friday from 9:00 a.m. until 5:00 p.m. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Residential site SURROUNDING LAND North: . Single-family dwellings / R 7.5 Residential District USE AND ZONING: South: . Single-family dwellings / R 7.5 Residential District East: . Single-family dwellings / R 7.5 Residential District West: • Across Van Buren Court are single-family dwellings / R-7.5 Residential District GREG SMITH Agenda Item 8 Page 1 NATURAL RESOURCE AND The site is a residential lot with an existing single-family home and CULTURAL FEATURES: fenced yard. There are no known significant cultural or natural features associated with this site. AICUZ: The site is in an AICUZ of 65 to 70 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Van Buren Court in the vicinity of this application is considered a two-lane undivided local street. There are no Capital Improvement Program (CIP) projects slated for this area. There is no data for volume or capacity for this street. FIRE: Fire Department has no opposition to the request. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the conditions below. Comprehensive Plan: This site is located in a Primary Residential Area. The Comprehensive Plan Policy document reinforces the suburban characteristics found in residential areas. The City's Comprehensive Plan states that the objective of the Primary Residential Area is to protect the predominantly suburban character that is defined, in large measure, by the stable neighborhoods of the Primary Residential Area. Proposed development within the Primary Residential Area should focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. Evaluation: Home occupations are typically appropriate conditional uses within residential areas provided the requirements established in the City Zoning Ordinance are adhered to, such as, but not limited to, restricting the amount of area that can be used for the home based business, prohibiting the use of signage, and generating no additional traffic than what is customary of a residential street. The minimal activity expected by the applicant is not likely to adversely impact the surrounding properties in any way. From the exterior of the house, business activity associated with the proposed home occupation should be virtually undetectable. The proposal is compatible with the adjacent residential neighborhood and consistent with the criteria found in Section 234, Home Occupation, of the Zoning Ordinance. There are no employees, few deliveries, and only a small number of individuals coming to the house for merchandise. GREG SMITH Agenda Item 8 Page 2 CONDITIONS 1. In accordance with Section 234 of the City Zoning Ordinance, not more than twenty (20) percent of the floor area of the dwelling unit and accessory structure shall be used in conjunction with the home occupation. 2. No signs advertising the business shall be permitted on the premises or installed on the lot or buildings on the lot at any time. 3. There shall be no individuals employed by the applicant to assist with the home occupation other than one family. 4. Sales to the general public of product or merchandise shall not be permitted on the property. 5. The home occupation shall not create noise, dust, vibration, smell, smoke, glare, electrical interference, fire hazard, or any other hazard or nuisance to any greater or more frequent extent than would normally be expected in the neighborhood under normal circumstances wherein no home occupation exists. NOTE. Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. 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. GREG SMITH Agenda Item 8 Page 3 AERIAL OF SITE LOCATION GREG SMITH Agenda Item 8 Page 4 _, . _.....,..,.,..., .....+......r,..+w=� wm�,.w � � rc�vc„oror�w.c tx E ►sa �urcver. sir --o-DENOTES L PIN JP 04ewr TO TM hm 0F:tTaiiii8 AND 0"XAti£ FACV_rM. 12 E N 7T°14" 0"_ W 13AW S ir4x"` W 4 sr S 89°1i!'OQ" E 14.14` S lr4VSV W f 14.SR' z- are SHED FROM tte r15 iI -STY O X ' BRICK E =- DWEL N =, r # 394 r' o� its, 230 =: ' vi I ' z VAMAUM S' lJ4SkP4EN7 � �� t 80.TX N 12"'+1s'W E VAN BUREN COURT t� PROPOSED SITE PLAN GREG SMITH Agenda Item 8 Page 5 EXISTING RESIDENTIAL GREG SMITH Agenda Item 8 Page 6 EXISTING GARAGE WORKSHOP GREG SMITH Agenda Item 8 Page 7 There has been no recent zoning activity in this area. ZONING HISTORY GREG SMITH Agenda Item 8 Page 8 Z ww L w Q w VI 0 J U N 0 NOIid'JIZddV JJWHad aSa 1VNOIIIQNO3 r Z w w Q V/ w VI 0 J u VJ Cnw^ m C d o ° $na a:cc Lr��v'c�c�c y W . d •-- .C.. G d d ° T O `p C L c v N y j S L O 0O E O S C '' � � I Ju 31 U t9 V I C T` L N V L O L U d C C7 n - O 0 G W_ Z zz.G :J M NOIid'JIZddV JJWHad aSa 1VNOIIIQNO3 r Z w w Q V/ w VI 0 J u VJ Y N c c DISCLOSURE STATEMENT GREG SMITH Agenda Item 8 Page 9 Ju 31 M 0 G W_ Z M CL CL It E Y N c c DISCLOSURE STATEMENT GREG SMITH Agenda Item 8 Page 9 Item #8 Greg Smith Conditional Use Permit 594 Van Buren Court District 3 Rose Hall September 12, 2007 CONSENT Janice Anderson: The next matter is agenda item 8. That is the application of Greg Smith. This is for a Conditional Use Permit for a home occupation, which is the making and selling of glass bead pendants. It is located on property at 594 Van Buren Court in the Rose Hall District. Welcome sir. Greg Smith: Thank you. I fully accept the five conditions. Janice Anderson: Can you state your name for the record? Greg Smith: My name is Greg Smith. Janice Anderson: And you have reviewed the five conditions and they are acceptable? Greg Smith: Yes ma'am, I have. Janice Anderson: Thank you sir. Greg Smith: Thank you. Janice Anderson: Is there any objection to this matter being placed on the consent agenda? See none, the Chairman has asked Gene Crabtree to review this application. Eugene Crabtree: This application, basically what it is for a hobby that has grown to the extent that it has become necessary to be a business and has to have a Conditional Use Permit in a home garage. It does not affect any other surrounding properties. It doesn't affect any other homeowners in the area. There is no opposition to it from anyone in the area. It will not create anymore traffic into the area. There will be no employees other than family members that will work in this business, so it doesn't really impact whatsoever on the neighborhood. There will be no signs. There will be no merchandise sales made directly on the property. They will always be wholesale or on the internet. Therefore, we felt it was the appropriate thing to put it on the consent agenda. Janice Anderson: Thank you Gene. Mr. Chairman, I would like to make a motion to approve agenda item 8. Item #8 Greg Smith Page 2 Barry Knight: There is a motion on the floor by Jan Anderson and seconded by Gene Crabtree to approve agenda item 8. I'll call for the question. Ed Weeden: By a vote of 11-0, the Board has approved item 8 for consent. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved item 8 for consent. .r, Item Y.M.I. PLANNING ITEM # 55533 (Continued) 4. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council (August 21, 2007). If the conditions noted above are not accomplished and the final plat is not approved within one (1) year of the City Council vote to close the right-of-way, this approval shall be considered null and void. This Ordinance shall be effective in accordance with Section 107 (0 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-second of August Two Thousand Six. Voting: 10-1 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Mayor Meyera E. Oberndorf Council Members Absent: None Vice Mayor Jones DISCLOSED pursuant to Conflict of Interests Act re Mathews Green Associates, L.L.C. 's for a Conditional Change of Zoning application located at 2217 Matthews Green; and, discontinuance, closure and abandonment of portions of Matthews Green east of Princess Anne Road. Property owned by Holloman -Brown Funeral Home — Bayside Chapel, Inc. is located across the street from property that is the subject of Mathews Green Associates, L.L.C. 's applications. Vice Mayor Jones has an ownership interest in Holloman -Brown Funeral Home, Inc. The City Attorney has advised Vice Mayor Jones he does not have a personal, interest in this transaction and is s able to participate in the discussion and vote fairly, objectively and in the public interest. Vice Mayor Jones's letter of August 22, 2006, is hereby made a part of the record. August 22, 2006 -43 - Item 43 - Item Y.M.I. PLANNING ITEM # 55533 (Continued) Upon motion by Council Lady Henley, seconded by Councilman Villanueva, City Council ADOPTED, (EXCEPT NO ROADWAY OR PEDESTRIAN COA7VECTIVITI9 Ordinances upon application of MATHEWS GREEN ASSOCiATES, L.L.C. for a Conditional Change of Zoning and Discontinuance, closure and abandonment of portions of Mathews Green: ORDINANCE UPON APPLICATION OF MATHEWS GREEN ASSOCIATES, L.L.C. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG -1 TO CONDITIONAL R-20 WITH A PD - H2 OVERLAY Z08061261 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Mathews Green Associates, L.L.C. for a Change ofZoninQ District Classification from AG -1 Agricultural District to Conditional R-20 Residential District with a PD -H2 Overlay on property located at 2217 Mathews Green (GPIN 2404949948). DISTRICT 7 — PRINCESS ANNE The following condition shall be required.• A ND, 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record Ordinance upon application of Mathews Green Associates, L.L.C. for the discontinuance, closure and abandonment of portions of Mathews Green beginning at a point approximately 130 feet east of its intersection with Princess Anne Road and extending 274.73 feet in an easterly direction and the southwest quadrant of the cul-de-sac, approximately 100 feet east of Princess Anne Road. DISTRICT 7 — PRINCESS ANNE The following conditions shall be required: 1. The City A't_torney_'s Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures, " approved by City Council. Copies of the policy are available in the Planning Department. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcel. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verb that no private utilities exist within the right-of-way proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of-way proposed for closure. If private utilities do exist, easements satisfactory to the utility company must be provided. August 22, 2006 -42 - Item VM -1. PLANNING ITEM # 55533 The following registered in SUPPORT: Attorney R. J. Nutter, 222 Central Park Avenue, Phone: 687-7502, represented the applicant and advised the applicant will dedicate a right-of-way to straighten out Princess Anne Road, in addition to excess property donated to Nimmo Church for their expansion. Attorney Nutter displayed a large area between the homes. The existing right-of-way for the Church will remain open space preservation area (a very large area of tree preservation between the residents and those traversing Princess Anne Road). A preservation easement will also be dedicated to the City. The issue entails connectivity to the Three Oaks neighborhood immediately to the south of this application. There will NOT be a vehicle connection with Three Oaks. However, when the P-1 area is rezoned, Council Lady Henley, representatives of the City will meet with the neighborhood and determine (although no vehicular connection), if emergency and pedestrian connections are desired between Matthews Green and Three Oaks. The applicant will pay the cost of these connections. Dennis Meligonis, 2256 Kindling Hollow Road, Phone: 430-4425, President - Three Oaks Homes Association, advised he would enjoy the upscale neighborhood consisting offorty-nine (49) homes adjacent to Three Oaks. The community has not had time to meet re the emergency access and bike path. They would like to confer with Council Lady Henley and the Fire Chief Joseph Giancola, 2228 Kindling Hollow Road, Phone: 427-0245, resident of Three Oaks for 19 years, submitted the original petition to oppose any connection to Mathews Green. The Petition contains the signatures of 218 homeowners opposed to any connectivity to the Mathews Green community. Said petition is hereby made a part of the record. The first survey resulted in 189 signatures opposed to a street connection. The following registered in OPPOSTION.- Renee Swinson, 2200 Kindling Hollow Road, Phone: 427-1956, over the past few years, numerous developments have been considered and approved within the Transition Area. With the increase in density, the need for this development is questioned. During the last three (3) years, over eight hundred (800) homes have been approved for development in the Transition Area. Kellam and Three Oaks Elementary Schools will have a difficult time accommodating the students. The cost for owning a home in Virginia Beach is more expensive and traffic congestion is also increasing. Funds are not increasing to balance the infrastructure needs with the increased density created by residential developments. Mayor Oberndorf referenced the correspondence form Captain P.J. Lorge, U.S. Navy, Commanding Officer, Naval Air Station Oceana;.suggesting representatives of Mathews Green Association contact the Community Planning Liaison Officer, Ray Firenze. The Navy's Air Installation Compatible Use Zone Program designates residential development in this contour as incompatible. However, the 2005 Hampton Roads Joint Land Use Study produced no constraints on development in the 65 to 70 dB DNL sound contour. Said letter is hereby made a part of the record. Council Lady Henley advised the Civic Association has suspended meetings for the summer; therefore, they have not addressed the recommendations from the Planning staff for a pedestrian trail or from the Fire Chieffor emergency access without a connecting road. As the application for P-1 Preservation area will have to be considered at a future City Council Session, these accesses could then be considered. August 22, 2006 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of Mathews Green Associates, L.L.C. for a Change of Zoning District Classification from R-20 Residential District with a PD -1-12 Overlay to P-1 Preservation District on property located at 2217 Mathews Green (GPIN 2404949948). DISTRICT 7 — PRINCESS ANNE. MEETING DATE: October 9, 2007 ■ Background: The applicant proposes to rezone a portion of property currently zoned PD -1-12 (R-20) to P-1, as required in the proffers of the Conditional Rezoning for the entire parcel approved by City Council on August 22, 2006. As part of that rezoning, the applicant proffered the dedication to the City of Virginia Beach the portion of property proposed for rezoning to P-1. ■ Considerations: The relevant proffers from the 2006 Conditional Rezoning are as follows: PROFFER 10: Grantor shall dedicate the area shown on the Conceptual Plan as "Open Space / Preservation Area" (the Preservation Area") to the City of Virginia Beach, no later than thirty (30) days after the issuance of the first building permit within Grantor's development. The Preservation Area shall be subject to restrictive covenants recorded which prohibit the use of such area for any purposes other than open space use or passive recreational uses, such as hiking trails, walking paths, or other similar uses which do not detract from the forestral nature of the Preservation Area. The restrictive covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. The covenants shall become part of the deed dedicating the Preservation Area to the City of Virginia Beach. The covenants shall be approved by the City Attorney, or his designee. PROFFER 11: Grantor shall file and obtain approval of a rezoning petition to rezone the Open Space Area to P-1 Preservation District, as defined in the CZO, prior to the approval of any subdivision plat within Grantor's development or the issuance of a building permit. Mathews Green Associates, LLC Page 2of2 A secondary issue remaining from the 2006 Conditional Rezoning pertains to the installation of an emergency gate where Kindling Hollow Road ends in the adjacent residential neighborhood. This gate allows for emergency access through the open space area of the proposed community, connecting with Mathews Way. While this is not a requirement of the proffers of the 2006 rezoning, the applicant noted that it would be addressed at this point in the development process. To provide for the safety and well-being of these adjoining communities, the details for the provision of the emergency access way have been agreed to, and thus this issue is satisfied. The Planning Commission placed this item on the consent agenda because it fulfills a proffer of the August 22, 2006 rezoning, ensures the preservation of a forested open space area, and there was no opposition. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request. ■ 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 Mana �� t � MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 September 12, 2007 Public Hearing Staff Planner: Karen Prochilo REQUEST: Change of Zoning District Classification from R-20 Residential District with a PD -1-12 Overlay to P-1 Preservation District. ADDRESS / DESCRIPTION: Property located at 2217 Mathews Green. GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 24049499480000 7 — PRINCESS ANNE Total Site:49.32 acres Proposed P-1 site: 20.73 acres SUMMARY OF REQUEST The applicant proposes to rezone a portion of the newly rezoned R-20 property with a PD -1-12 overlay to P-1 as required in the proffers of the Conditional Rezoning for the entire parcel approved by City Council on August 22, 2007. As part of that rezoning, the applicant proffered the dedication of the portion of property being rezoned P-1 to the City of Virginia Beach for open space. In addition, the applicant is to donate additional property to Nimmo Church with the realignment of Princess Anne Road. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Undeveloped rural residential site currently in the process of site plan approval for a residential subdivision. The portion oft he property that will be used for the residential dwellings is currently being cleared for the installation of the infrastructure. SURROUNDING LAND North: USE AND ZONING: • Across Veterinary Way is a veterinarian's office and a 7 -Eleven / B -1A Limited Community Business District and B-2 Community Business District • Across Princess Anne Road is Nimmo Church and rural MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 1 residential / 0-2 Office District, R-20 Residential District and AG -2 Agricultural District South: . Single-family residential and undeveloped agricultural land / R- 20 Residential District and AG -1 & AG --2 Agricultural Districts East: . Undeveloped agricultural land / AG -1 & AG -2 Agricultural Districts West: . Single-family residential / R-20 Residential District NATURAL RESOURCE AND CULTURAL FEATURES: The majority of the portion of the site to be rezoned to P-1 is treed. AICUZ: The site is in an AICUZ of 65 dB Ldn to 70 dB Ldn surrounding NAS Oceana. Open space (P-1 Preservation Use) is compatible to this AICUZ. IMPACT ON CITY SERVICES There are no significant impacts to City Services with this rezoning. PARKS AND RECREATION: It is recommended that the proposed Open Space / Preservation Area be dedicated to the City since this ensures that the Transition Area Buffer along the Princess Anne Road Realignment and the trail system will be coordinated. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request. Evaluation: This application completes a requirement from the previous conditional rezoning of the proposed property, approved August 22, 2006. The proffers requiring the dedication and rezoning of the 20.73 acres of open space are as follows: PROFFER 10: Grantor shall dedicate the area shown on the Conceptual Plan as "Open Space / Preservation Area" (the Preservation Area") to the City of Virginia Beach, no later than thirty (30) days after the issuance of the first building permit within Grantor's development. The Preservation Area shall be subject to restrictive covenants recorded which prohibit the use of such area for any purposes other than open space use or passive recreational uses, such as hiking trails, walking paths, or other similar uses which do not detract from the forestral nature of the Preservation Area. The restrictive covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. The covenants shall become part of the deed dedicating the Preservation Area to the City of Virginia Beach. The covenants shall be approved by the City Attorney, or his MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 2 designee. PROFFER 11: Grantor shall file and obtain approval of a rezoning petition to rezone the Open Space Area to P-1 Preservation District, as defined in the CZO, prior to the approval of any subdivision plat within Grantor's development or the issuance of a building permit. NOTE: A secondary issue remaining from the 2006 Conditional Rezoning pertains to the installation of an emergency gate where Kindling Hollow Road ends in the adjacent residential neighborhood. This gate allows for emergency access through the open space area of the proposed community, connecting with Mathews Way. While this is not a requirement of the proffers of the 2006 rezoning, the applicant noted that it would be addressed at this point in the development process. To provide for the safety and well- being of these adjoining communities, the details for the provision of the emergency access way have been agreed to, and thus this issue is satisfied. MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 3 AERIAL OF SITE LOCATION MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 4 SITE PLAN SHOWING APPROVED SITE LAYOUT AND P-1 ZONING AREA MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 5 p , F pr 5 2 y`F C g l 4 i d Y K . SITE PLAN SHOWING APPROVED SITE LAYOUT AND P-1 ZONING AREA MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 5 1 10/12/04 Modification to Conditional Use Permit for church Granted 06/26/90 Conditional Use Permit for Church Granted 2 08/05/03 Conditional Use Permit for bulk storage area Granted 3 11/27/01 Conditional Rezoning from R-20 to AG -2 Granted 4 12/05/00 Conditional Use Permit for auto service establishment Granted 5 11/24/98 ( Modification of Conditions Granted 03/26/90 Conditional Rezoning from R-20 to B -1A Granted 6 11/24/95 Conditional Use Permit for home occupation Withdrawn 7 10/23/89 Conditional Rezoning from R-20 to 0-2 Reconsideration of CRZ from R-3 to 0-1 Granted 8 04/25/88 Street Closure Granted 9 08/27/86 1 Downzone to AG -1/ AG -2 Granted ZONING HISTORY MATHEWS GREEN ASSOCIATES,: LLC Agenda Item 3 Page 6 Z W i W Q N W N 0 U U) s=�2 g E KOIL{�JPlddd 9NINOZH1dNOLLIQNO3 oc> Bcc a 3m >¢ orL-• n��c=OveiLm> 3m-a°ii mc oe� o coum yN d Lam �I '' '. i moo amc=w-cam°oc m O Wn O C u� I •� L L C U V x N d N n U m T O O m N C T N C c yoE c`c5zr o 0 O cI E R ` }y -6-5 0 c o cE' J� � m ayim tinacE c coC w m E La L P1.00 E a E u m I O L y C 'n C N U• Zocor �. d ° O e`p U m 0 EE°'u zinm NN gL�`.Nv oat=z J 1 �! j y L m DJ i =gym �'3rdom�=tip Q J R O75 SE 7 I ''I a 'C O N SL L o v a L N U L m m L C N u u o L y c 5 m V V u my o� LL. U R Ge N J�NN I I UnU s=�2 g E KOIL{�JPlddd 9NINOZH1dNOLLIQNO3 DISCLOSURE STATEMENT MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 7 �a o d C m O N` �C V •Z'U V O J . V aZ f= a oma.: G �`- N C O O ~L �n �V y r `u i O " Z O` O �3e��du u O � •a o a m u� R O o? c 3 c o- m a -0 3 ~m�a�` a` on an33�RC aO f OR mN c w000m3 a oco,Eo m� I To :22 aO33�° %yyQ �I ra �fi'{;�„� a mrn u0 Oa�acc� V �c oc im C. U C r.iO ww a .0O R 2 -c o .LLUro R y E� N°a_ Oo c3m n NN C^ y a R COmm I d Ja\ LO.UU O J C m Lm o m aO IIiryfOoZ9mA MJ61 E= X J L J ❑ i� = N ❑ U= 7 r N �- 0- DISCLOSURE STATEMENT MATHEWS GREEN ASSOCIATES, LLC Agenda Item 3 Page 7 Item #3 Mathews Green Associates, L.L.C. Change of Zoning District Classification 2217 Mathews Green District 7 Princess Anne September 12, 2007 CONSENT Janice Anderson: The next matter is agenda item 3. It is the application of Mathews Green Associates, L.L.C. This is an application for a Change of Zoning from R-20 Residential District with a PD -H2 Overlay to Conditional P-1 Preservation District on property located at 2217 Mathews Green in the Princess Ann District. Welcome. James Hogan: My name is James Hogan representing Mathews Green Associates. Janice Anderson: Thank you Mr. Hogan. James Hogan: We are in agreement with what the proffers stated on the application. We do understand there are some issues concerning this gate at Kindling Hollow Road, but I think that is an open discussion that will continue from this point to City Council. Janice Anderson: Okay. It is my understanding that you are still going to work with that gate issue but the rezoning, that would be straight rezoning on this? James Hogan: Yes. Janice Anderson: Thank you. Is there any opposition to this matter being placed on the consent agenda? I see none. The Chairman has asked Don Horsley to review this application. Donald Horsley: Thank you Ms. Anderson: This piece of property was just recently rezoned R-20 with a PD -H2 Overlay. And the applicant wishes to change the zoning classification, a portion of it to P-1, which was required to get the Conditional Rezoning on August 22, 2007. The part of the rezoning, the applicant proffered to dedicate the portion of the P-1. So, this is just merely a housekeeping issue as part of the conditions that were imposed on it in August of this year. The gate that the gentleman mentioned is still in discussion but I think that is a very easy solution can be put to allowing access to this preserved area. So, there was no opposition to this application so the Commission thought it warranted the merits of being put on the consent agenda. Janice Anderson: Thank you Mr. Horsley. Mr. Chairman, I would like to make a motion to approve agenda item 3. Item #3 Mathews Green Associates, L.L.C. Page 2 Barry Knight: There is a motion on the floor by Jan Anderson and seconded by Gene Crabtree to approve agenda item 3. I'll call for the question. Ed Weeden: By a vote of 11-0, the Board has approved item 3 for consent. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved item 3 for consent. In Reply Refer To Our File No. DF -6326 TO: Leslie L. Lilley FROM: B. Kay Wilsol CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: July 7, 2006 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application: Matthews Green Associates, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on July 18, 2006. 1 have reviewed the subject proffer agreement, dated May 19, 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 Avenue Suite 2000 Virginia Beach, Virginia 23462 AGREEMENT THIS AGREEMENT (the "Agreement") is made as of this 19th day of May, 2006 by and between MATHEWS GREEN ASSOCIATES, LLC, a Virginia limited liability company (the "Grantor"), the current owner of that certain property located along Princess Anne Road, in Virginia Beach, Virginia, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property") and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). b WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the property from AG -2 to Conditional R-20 (PDH -2); and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible uses conflict, and that in order to permit 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 land similarly zoned Conditional R-20 (PDH -2) are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered in writing in advance of and prior to the public_ hearing --before the Grantee, as part of the -proposed -conditional- amendment -to -the --- Zoning Map, in addition to the regulations provided for in the existing R-20 (PDH 2) distracts by the existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the GP+'N N.G.: 2404-94-9948--0000 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 Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantor, for itself, it's successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid nro 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 Grantor, it's heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. When developed, the Property shall be developed in substantial conformance with the conceptual plan titled "Rezoning Exhibit of Mathews Green", dated March 21, 2006, and prepared by Kellam Gerwitz, a copy of which has been exhibited to the City Council and is on file with City Planning Department (the "Conceptual Plan"). 2. When developed, all residential lots numbered 1 through 45, inclusive, on the Conceptual Plan shall meet or exceed the following setbacks and lot dimensions: a. Front Yard Setback: Twenty Feet (20') b. Front Yard Setback for Unenclosed, Attached One -Story Porch: Ten Feet (10') C. Side Yard Setback: Ten Feet (10') d. Side Yard Setback Adjacent to a Public Street: Twenty Feet (20') e. Rear Yard: Twenty Feet (20') f. Rear Yard for Accessory Structure: Five Feet (5') g. Minimum Lot Area: 11,700 square feet 3. When developed, all residential lots numbered 46 through 49 on the Conceptual Plan shall contain a rear yard landscape buffer at fifty feet (50') in width along the re -aligned portion of Princess Anne Road, cross -hatched and shown on the Conceptual Plan. 4. On or before the date Grantor records a subdivision plat creating the residential lots shown on the Conceptual Plan, Grantor shall dedicate to Grantee the portion of the Property along Mathews Green hatched and shown on the Conceptual Plan as "R/W to Be Dedicated to City" Grantor shall not be entitled to any compensation for the value of the Property dedicated to Grantee. 5. On or before the date Grantor records a subdivision plat creating the residential lots shown on the Conceptual Plan, Grantor shall dedicate to Grantee a portion of the Property for the future re -alignment of Princess Anne Road. The portion of the Property to be dedicated shall be located within the area of the Property hatched and shown on the Conceptual Plan as - - - "New Alignment Princess Anne Road". Grantor shall not beentitled to -a- ny compensation for the value of the Property dedicated to Grantee. 6. On or before the date Grantor records a subdivision plat creating the residential lots shown on the Conceptual Plan, Grantor shall record a Declaration of Protective Covenants, Conditions and Restrictions ("Deed Restrictions"), which shall be administered and enforced by a homeowners association in which all landowners within Grantor's development shall be members. The Deed Restrictions shall be prepared in substantially the same form as the exhibit titled "Proposed Deed Restrictions" exhibited to the City Council and on file with the City Attorney's Office. 7. The Deed Restrictions shall require the establishment of an architectural review committee which shall administer and enforce the "Architectural Design Guidelines for Mathews Green Subdivision" dated August 28, 2005, a copy of which has been exhibited to the City Council and is on file with the City Planning Department. The Architectural Design Guidelines shall apply only to the residential lots numbered 1 through 45, inclusive, on the Conceptual Plan and shall not apply to lots 46 through 49, inclusive. 8. The areas shown on the Conceptual Plan as "Homeowners Assoc. Open Space" (the "Open Space Area") shall be subject to restrictive covenants recorded which prohibit the use of such area for any purpose but recreation and open space use. The restrictive covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. The covenants shall. become part of the deed to each lot or parcel within Grantor's development. The covenants shall be approved by the City Attorney, or his designee, and recorded before the first building permit in Grantor's development is issued. 9. Grantor shall provide for maintenance of the Open Space area, either by the homeowners association, in which case all property owner's within Grantor's development shall be responsible for the costs and expenses of such maintenance, or by conveying an interest in the Open Space Areas to a public or private entity for such purposes. 10. Grantor shall dedicate the area shown on the Conceptual Plan as "Open Space/Preservation Area" (the "Preservation Area") to the City of Virginia Beach, no later than thirty (30) days after the issuance of the first building permit within Grantor's development. The Preservation -Area shall be subject to restrictive covenants recorded which prohibit the use of such area for any purposes other than open space use or passive recreational uses, such as hiking trails, walking paths, or other similar uses which do not detract from the forestral nature of the Preservation Area. The restrictive covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. The covenants shall become part of the deed dedicating the Preservation Area to the City of Virginia Beach. The covenants shall be approved by the City Attorney, or his designee. 11. Grantor shall file and obtain approval of a rezoning petition to rezone the Open Space Area to P-1 Preservation District, as defined in the CZO, prior to the approval of any subdivision plat within Grantor's development or the issuance of a building permit. 12. 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. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantor 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, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and -- - - accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. -5 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: MATHEWS GREEN ASSOCIATES, LLC, a Virginia limited liability company By: R Name: Title: COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: foregoing ins invent was acknowledged before me thiszz�'iky of 2006, by his capacity as member of Mathews Green Associates, LLC, a Virginia limited liability company. He is personally known to me or has produced as identification. My Commission Expires: i(i 3/?� VB2965480 Notary Public 6 EXHIBIT A LEGAL DESCRIPTION ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as S.R. Mathews 50.0 ac. as shown on that certain plat entitled, "PROPERTY OF S.R. MATHEWS LOCATED NEAR NDAMO CHURCH - PRINCESS ANNE CO., VA", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 29, at page 6. LESS, SAVE AND EXCEPT that portion conveyed to the City of Virginia Beach by Deed dated July 18, 1983 and recorded in Deed Book 2273, at Page 359. IT BEING the same property conveyed to Mathews Green Associates, LLC by Deed from Spencer Relmond Mathews, Jr., Louis Scott Mathews and Claudius Floyd Mathews, 11, dated July 12, 2005 and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 200507280117500. 7 Change of Zoning from: B-2 to A-24 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application of Kotarides Developers for a Change of Zoning District Classification from B-2 Community Business District to Conditional A-24 Apartment District on property located at 920 South Military Highway. (GPIN 1456230589). DISTRICT 1 — CENTERVILLE. MEETING DATE: October 9, 2007 ■ Background: The applicant proposes to rezone the subject parcel from B-2 Community Business District to Conditional A-24 Apartment District for the development of 300 rental apartments within 12 buildings (18.2 units per acre). The Comprehensive Plan Map designates this area as part of the Primary Residential Area and, specifically, part of the Military Highway Corridor. The long term goal for the Military Highway Corridor is to replace the industrial activities with other uses that are more compatible with the surrounding residential neighborhoods. These may include a variety of higher density residential, office, hotel and institutional uses (i.e. education, religion, recreation, health, etc.). ■ Considerations: The proposed apartments include one bedroom, two bedroom, and three bedroom units. Each apartment unit ranges from 798 square feet to 1,243 square feet in area. The 43 foot, 9 -inch (43'-9") tall apartment buildings are dispersed throughout the center of site, and consist of traditional apartment styling with Colonial style architectural elements. Exterior materials consist of horizontal lapped siding, brick veneer, and architectural shingle roofing. Parking is provided within a lot located in front of the apartment buildings. Ingress and egress will be provided from Old Providence Road. A tot lot is situated within the center of the apartment complex. A community clubhouse, pool, open space, and picnic area is located near the apartment complex entrance off of Old Providence Road. The applicant will enhance the existing water body located along the western property line with the addition of a fountain and bridge to encourage pedestrian traffic over and around the water body. The applicant also intends to utilize the water body as the stormwater management facility. A portion of the site along the eastern property line is located within the Chesapeake Bay Preservation Area (CBPA). The majority of the CBPA is wooded. A pathway and small portion of two (2) apartment buildings will be located within the protected Kotarides Developers Page 2 of 2 CBPA; however, the applicant will not clear any of the existing trees from the protected area. A 15 -foot wide landscape buffer including Category IV landscaping and a six-foot opaque fence will be installed along property lines which abut the business district. There was no opposition to the application. ■ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request, as proffered. ■ Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department ` City Manager: �'� KOTARIDES DEVELOPERS Agenda Item 17 September 12, 2007 Public Hearing Staff Planner: Leslie Bonilla REQUEST: Change of Zoning District Classification from B-2 Community Business District to Conditional A-24 Apartment District. ADDRESS / DESCRIPTION: 920 S. Military Highway Change of Zoning from: B-2 to A-23 GPIN: COUNCIL ELECTION DISTRICT: SITE SIZE: 1456230589 portion of 1 - CENTERVILLE 16.94 acres The applicant proposes to rezone 16.94 -acres of an existing SUMMARY OF REQUEST 17.75 -acre parcel from B-2 Community Business District to Conditional A-24 Apartment District for the development of 300 rental apartments within 12 buildings. The existing bank situated on 0.81 acres of the parcel will remain zoned B-2 Community Business District. The proposed apartments include one bedroom, two bedroom, and three bedroom units. Each apartment unit ranges from 798 square feet to 1,243 square feet in area. The 43 foot, 9 -inch (43'-9") tall apartment buildings are dispersed throughout the center of site. Parking is provided within a lot located in front of the apartment buildings. Ingress and egress will be provided from Old Providence Road. A tot lot is situated within the center of the apartment complex. A community clubhouse, pool, open space, and picnic area is located near the apartment complex entrance off of Old Providence Road. The applicant will enhance the existing water body located along the western property line with the addition of a fountain and bridge to encourage pedestrian traffic over and around the water body. The applicant also intends to utilize the water body as the stormwater management facility. A portion of the site along the eastern property line is located within the Chesapeake Bay Preservation Area (CBPA). The majority of the CBPA is wooded. A pathway and small portion of two (2) apartment buildings will be located within the protected CBPA; however, the applicant will not clear any of the existing trees from the protected area. A 15 -foot wide landscape buffer including Category IV landscaping and a six-foot opaque fence will be installed along property lines which abut the business district. KOTARIDES DEVELOPERS Agenda Item 17 Page The proffer agreement indicates that the density will not exceed 18.5 units per acre and the maximum height of the buildings shall not exceed forty-five (45) feet. Tenants will have access to the clubhouse, which includes an exercise facility, kitchen, swimming pool, central mailboxes and a business office. The proposed buildings consist of traditional apartment styling with Colonial style architectural elements. Exterior materials consist of horizontal lapped siding, brick veneer, and architectural shingle roofing. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Golf driving range SURROUNDING LAND North: . Retail and financial establishments / B-2 Community Business USE AND ZONING: District South: . Old Providence Road • Across Old Providence Road are Multi -family dwellings / A-12 and A-18 Apartment Districts East: . Single-family dwellings / R-10 Residential District West: . Vacant gas station, proposed motor vehicle sales / B-2 Community Business District • Vacant skating facility (approved for a single -room occupancy facility) / A-12 Apartment District NATURAL RESOURCE AND The majority of the site is grass field. There is a wooded area on the CULTURAL FEATURES: eastern portion of site located within the Chesapeake Bay Preservation Area. The City's Chesapeake Bay Administrator reviewed the proposal and an administrative variance for encroachment into the Variable Width Resource Protection Area/Buffer is required. The applicant is pursuing that administrative variance. 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): Military Highway in the vicinity of this application is a six -lane divided major urban arterial. The Master Transportation Plan proposes a divided facility within a 150 -foot right-of-way. No Roadway Capital Improvement Program projects are identified for this area. Providence Road in the vicinity of this application is a four -lane divided minor urban arterial. The Master Transportation Plan proposes a four -lane divided facility with bikeway within a 100 -foot right-of-way. No Roadway Capital Improvements Program projects are identified for this area. KOTARIDES DEVELOPERS Agenda Item 17 Page 2 Old Providence Road in front of this application is a two-lane undivided local street. No Roadway Capital Improvements Program projects are identified for this area. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Woodstock Elementary 617 Military Highway 30,168 ADT 55,500 ADT (Level of Existing Land Use — 1587 1596 16 Service "D") / capacity 960 ADT 1974 1 2143 15 15 Existing Zoning Providence Road 17,849 ADT' 32,70 ADT' (Level of District 3— 9,317 ADT 4- Service "D") / capacity Proposed Land Use 1,828 ADT 22 AM Peak Hour Vehicles (entering) 109 PM Peak Hour Vehicles(entering) A. a nna., Trinc -2006 2 as defined by driving range/batting cages/miniature golf 3 as defined by B-2 zoning 4 a defined by 312 apartments Sufficient right-of-way must be dedicated along Old Providence Road to bring the ultimate right-of-way width to a City standard 50 foot minimum. Right-of-way improvements are required along Old Providence Road. Improvements include, but are not limited to, curb and gutter, drainage, and street lighting in accordance with the City's 50 -foot typical section. Future comments will be forthcoming upon a site plan submission. WATER: This site must connect to City water. There is an existing 8 -inch water main on Old Providence Road. There is an existing 10 -inch City water main on South Military Highway. There are two existing 48 -inch raw water mains on South Military Highway. SEWER: This site must connect to City or Hampton Roads Sanitation District (HRSD) sanitary sewer system. Extension and connection to existing gravity systems must be analyzed prior to utilizing existing force mains for connection. Analysis of the receiving pump station and the sanitary sewer collection system is required to ensure future flows can be accommodated. There is an existing 8 -inch City gravity sanitary sewer main on Old Providence Road. There is an existing 36 -inch HRSD force main on Providence Road. STORMWATER: Stormwater management shall be addressed during site plan review. SCHOOLS: School Current Enrollment Capacity Generation' Change 2 Woodstock Elementary 617 692 31 31 Kem sville Middle 1587 1596 16 16 Tallwood High 1974 1 2143 15 15 "generation" represents the number of students that the deveiopmeni win add io ale $C"001 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). KOTARIDES DEVELOPERS Agenda Item 17 Page 3 EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the submitted proffers. The proffers are provided below. Comprehensive Plan: The Comprehensive Plan Map designates this area as part of the Primary Residential Area. The land use policies reflect the importance of neighborhood character and its relationship to compatible land use and traffic management, and focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. In a general sense, the established type, size, and relationship of land use, residential and non-residential, located in and around these neighborhoods should serve as a guide when considering future development. The Plan states that: "All development should incorporate environmentally sensitive design that protects the integrity of existing neighborhoods, complements adjacent land uses, incorporates crime prevention principles and enhances the overall function and visual quality of the street, neighboring properties and community." Page 179 The long term goal for the Military Highway Corridor is to replace the industrial activities with other uses that are more compatible with the surrounding residential neighborhoods. These may include a variety of higher density residential, office, hotel and institutional uses (i.e. education, religion, recreation, health, etc.). Evaluation: The proposal is consistent with the Comprehensive Plan's recommendations for the area. The Comprehensive Plan indicates that the goal of this area is to promote redevelopment with a variety of higher density residential, office, hotel and institutional uses that are compatible with surrounding residential uses. The proposed rezoning is more compatible to the surrounding residential area than the existing business zoning. The proposed density of 18.5 units to the acre as arranged on the site is compatible with the residential area to the east and the multi -family developments to the south. The quality of life for residents of the proposed development will be enhanced with recreational and leisure opportunities located within the complex including a tot lot, walking path, swimming pool, picnic shelters, gazebos, open space, and clubhouse with an exercise facility and kitchen. The applicant is enhancing the site's natural resources with the addition of a fountain and scenic bridge within and over the existing water body, and a pathway integrated throughout the site and the existing wooded Chesapeake Bay Preservation Area on the eastern edge of the site. Staff finds the proposed fencing along with a fifteen (15) foot Category IV landscape buffer located between the proposed apartments and the existing commercial to the north an adequate buffer between the two uses. Staff further finds that the existing infrastructure including roads, water, access for KOTARIDES DEVELOPERS Agenda Item 17 Page 4 emergency vehicles and schools will support the proposed development with the recommendations as specified in the "Impact on City Services" section of this report. Staff, therefore, recommends approval of the proposed rezoning with proffers as submitted. 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: The Property shall be used for the purposes and uses permitted in the A-24 Apartment District. Grantor agrees to a density not to exceed 18.5 apartment units per acre for a total number of apartments not to exceed 300 units. The maximum height of the buildings shall not exceed forty-five (45) feet. PROFFER 2: A subdivision plat approved by the City of Virginia Beach shall be duly recorded to sever all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens National Bank described in a Memorandum of Lease dated August 15, 1967, and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49 (the "Leasehold Parcel") from the Property. The subdivision plat shall comply with applicable City Ordinances, including but not limited to the minimum lot size requirements. PROFFER 3: Grantor shall comply with reasonable comments offered by the City. Grantor shall comply with all terms and conditions of all City Ordinances related to matters of Public Works, Traffic Engineering, Public Safety, Public Utilities and Storm Water Management. Grantor shall dedicate an additional right of way as more particularly set forth in the Site Plan. An application for an administrative variance to the Chesapeake Bay Preservation Act to encroach into the Variable Width Buffer has been submitted by the Grantor. PROFFER 4: In order to provide for the coordinated development of the Property, the Property shall be developed in substantial conformity with that certain plan entitled "SCHEMATIC SITE PLAN, BELMONT AT PROVIDENCE" dated August 24, 2007, prepared by WPL (the "Site Plan"), a copy of which is on file with the City of Virginia Beach, Department of Planning, with regard to layout, ingress and egress, and landscaping. Grantor shall comply with all terms and conditions of all City Ordinances and Guidelines pertaining to landscape design. Category IV landscaping and fencing, as more particularly described in the Site Plan, and the color coordinated rendering exhibit prepared by Kotarides entitled "BELMONT AT PROVIDENCE Cross Section Showing Category 4 Landscaping Adjacent to Burlington Plaza" will be installed on all adjacent parcels zoned for business uses. Foundation planting beds, as more particularly described in the Site Plan, shall be five (5) feet from front to back. The landscaping shall substantially conform to the Site Plan and other exhibits submitted to City Council and the Planning Department for the City of Virginia Beach. PROFFER 5: KOTARIDES DEVELOPERS Agenda Item 17 Page 5 The exterior of the typical apartment building shown upon the Site Plan shall be substantially similar in appearance to the color coordinated rendering exhibits prepared by Kotarides, said exhibit being the same exhibits as the color coordinated exhibit submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and being composed of the same building materials and elevations as reflected upon the said elevation exhibit on file in the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE TYPICAL BUILDING ELEVATION"). The building materials for the dwelling units will include brick veneer on the lower level, picket railings on the balconies, and horizontal lapped siding. PROFFER 6: Belmont at Providence shall include a Clubhouse with an exercise facility, a kitchen, a swimming pool, central mail boxes and a business office. The Clubhouse shall be developed with architectural features that are substantially similar in appearance to those depicted on the color coordinated rendering exhibit prepared by Kotarides entitled "BELMONT AT PROVIDENCE CLUBHOUSE". The footprint of the Clubhouse shall be substantially similar in appearance to the Site Plan submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and being composed of substantially similar building materials and elevations as reflected upon the color coordinated rendering exhibit of the Clubhouse which is on file in the Planning Department of the City of Virginia Beach, Virginia. Building materials for the Clubhouse will be brick and siding materials. PROFFER 7: The swimming pool shall include decorative water features, fencing, and a pergola. The pool will be developed with architectural features that are substantially similar to the color coordinated photograph of the swimming pool submitted to City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected therein. Building materials for the pool will be brick, masonry and concrete. The fencing surrounding the pool will be black anodized aluminum. PROFFER 8: Private recreational amenities shall include a Picnic Shelter, a Tot Lot and gazebos for the residents of Belmont at Providence. The gazebos shall be developed with architectural features that are substantially similar to the photograph of the gazebo submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected therein. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. PROFFER 9: Pedestrian trails will be constructed by utilizing environmentally friendly pervious materials to encourage the residents' interaction with the natural beauty of the site. The trails shall be developed with features that are substantially similar in appearance to the color coordinated rendering exhibit submitted to the City Council and on file with the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE VIEW OF PEDESTRIAN TRAIL and ACTIVE OPEN SPACES") prepared by Kotarides. As a matter of public safety, pedestrian trails shall be designed to maximize sight lines and surveillance opportunities by users, while keeping with the natural appearance of the open space. Pedestrian trail landscaping within eight (8) feet of the pathways will be kept low, less than three (3) feet, and tree canopies shall be raised up to seven (7) feet. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. ;:Z47424:iUA KOTARIDES DEVELOPERS Agenda Item 17 Page 6 The community sign at Military Highway and the community sign and fencing will be built with architectural features that are substantially similar to the photographic exhibit of the signage and fencing submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected upon the color photographic renderings. The community sign shall be externally lighted and constructed primarily of brick. The landscaping surrounding the community sign shall be substantially similar to that set forth in the Site Plan. PROFFER 11: Open space shall be provided as shown upon the Site Plan, a copy of which is on file with the City of Virginia Beach, Department of Planning. The open space will not be open to the public at large. The open space shall be owned and maintained by the owner. PROFFER 12: A Photometric Plan shall be submitted for review and approval. Full cut-off fixtures shall be used for parking lot lighting. All lighting on the site shall be consistent with those standards recommended by the Illuminating Engineering Society of North America. PROFFER 13: Further lawful conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all appropriate agencies and departments of Grantee, which shall be observed or performed by Grantor. Grantor acknowledges that additional further lawful conditions or restrictions may be imposed by Grantee as a condition of approvals, including but not limited to final Site Plan approval. PROFFER 14: All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, in force as of the date the conditional rezoning amendment is approved by the Grantee. PROFFER 15: 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 specified in this Agreement, including (a) the ordering in writing of the remedying of any noncompliance with such conditions, and (b) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the City Zoning Ordinance or this Agreement, a petition shall be filed to the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the Map the existence of conditions attaching to the zoning of the subject Property on the Map and that the ordinance and conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. STAFF COMMENTS: The proffers listed above are acceptable as they insure the site will be developed in accordance with the submitted site plan and elevations. The proffers define the proposed number of dwelling units and site amenities. In addition, the proffers give staff the flexibility to ensure reasonable KOTARIDES DEVELOPERS Agenda Item 17 Page 7 traffic, stormwater, public safety, public utilities, and public works concerns are adequately addressed within detailed site plan review. The City Attorney's Office has reviewed the proffer agreement dated August 28, 2007, 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 and Standards. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. KOTARIDES DEVELOPERS Agenda Item 17 Page 8 AERIAL OF SITE LOCATION KOTARIDESDEVELOPERS Agenda Item17 Page 9 A�y 1111! it mid $�° •� � se `�. ,� � y � d° "w O AW PROPOSED SITE PLAN KOTARIDES DEVELOPERS Agenda Item 17 Page 10 UO PROPOSED BUILDING ELEVATION KOTARI DES .DEVELOPERS Agenda Item 17 Page 11 PROPOSED BUILDING ELEVATION KOTARI DES .DEVELOPERS Agenda Item 17 Page 11 PROPOSED BUILDING ELEVATION KOTARIDES DEVELOPERS Agenda Item 17 Page 12 PROPOSED BUILDING ELEVATION KOTARIDES DEVELOPERS Agenda Item 17 Page 13 PROPOSED BUILDING ELEVATION KOTARI DES DEVELOPERS Agenda Item 17 Page 14 r PROPOSED BUILDING ELEVATION KOTARI DES DEVELOPERS Agenda Item 17 Page 14 PROPOSED SIGNAGE & FENCING ALONG OLD PROVIDENCE ROAD KOTARIDES DEVELOPERS Agenda Item 17 Page 15 PROPOSED SWIMMING POOL & PATIO KOTARIDES DEVELOPERS Agenda Item 17 Page 16 # Date Description Action 1 02-11-92 Conditional Use Permit (golf driving range) Granted 08-11-92 Conditional Use Permit (mini golf) Granted 06-13-95 Conditional Use Permit (golf driving range, mini golf, & game room) Granted 2 06-27-88 Conditional Use Permit (motor vehicle repair) Granted 06-13-00 Conditional Use Permit (indoor recreational facility) Granted 02-27-07 Conditional Use Permit (home for adults) Granted 3 10-17-95 Conditional Use Permit (automobile repair garage) Granted 4 06-08-93 1 Conditional Use Permit (church) Granted 5 11-26-96 Conditional Use Permit (automobile auction) Granted 6 12-18-89 Conditional Use Permit (tire sales/service) Granted 7 1 11-14-06 Conditional Use Permit (motor vehicle sales) Granted ZONING HISTORY KOTARIDES DEVELOPERS Agenda Item 17 Page 17 ,Z W W Q w N 0 U N a $$m N GN Q GtN I I muo'in�p C C ow I ! I I I > Q I pN h r°n m V C 0 d`m_a�dtmoJ =Lrs ` m m � ` Ec G -oho ao3c°i�mHm`m> A ;, i opo .�? o = n3oc p p Jc d C C L C y 2C N N p C d. N N A !; U O ip = p t G N L�Nd`o ° r.oZ cLI ym ao 3y °v26 co v v $m=tea^a oc > d y O f :� 2 f L: I EE y N p 0 N cLmpxm4N�s ° W a y a dumb d 0 0 0 m I _ 0: � l! m° E E c= o Nome 'i !R ! . °°'o m°o°°E=V JOpEA ISIymO�Cy mp0 ei L O m I ^i N U N o d J C L G 0 N C E a_ E p m u d r IvN o N _ - E m E 0 L O Q N B N I pNc � G r to Lp3d80 y O d '= N ti I G r m i C d= m N V O ma c ;C'.I 1. I Lyti�° L.="•o=m�'� G U 0 i d a W A V c u a Q a N N y j I h 9 T .0 O _V U r d U m p N.rD C o r p:n uj�, y I; n �L�oE =m COr0 mo mN 4� oa E�o��c•. E ac- i j y�.v Da�°:10�yo� 't — !0 N O rl I O tp C p O G O '1;' T U r, tQyr N U p 0 I YI U. ��Hw i I vn'�J m.�oacia oo ��ni $$m Em= a I I muo'in�p -I `JI ° '• ` .zoo Q d m ;, `t .�? o = n3oc p Z Ic Jc Z J cam.mEg+ ^. � y � IT• E_ O U ' I m E d `' N �•' aoc�a � d d � c a a dumb d 0 0 0 m I \ E m L E r , m O r R r IvN f� O p O Qday ag p\ �a H \1,Ic I •� I D 7 C r LL i a d U ° W c o n i d a W A V c u a is iG o NOIZV'JPiddd 9NINOTH, 1dN0I1IQN0) F Z w 2 w Q F- w N 0 U 0 O O 2 U X o O p Z = DISCLOSURE STATEMENT KOTARI DES DEVELOPERS Agenda Item 17 Page 18 M ;, � � N I I T i o ! N � y � IT• E_ O U ' I m E d `' N �•' � c a y p ] m L E r , m _ £ D I � l u � o I •� I D 7 C r '� � i a C vi �•iI �. 6 uj�, y I; _=. `J. 70 0 N d IC .r ! 't — t C. N O rl I O tp C p O G O '1;' T U r, y=L of i6 U, ff�i �. V YI U. ` i c �`a c w m°>.aj...l 2 p y + Z C " p t _- 0 } „' C G 0 Q. V CL— V I �I O O I iii• y N 'c w o `� p m 3 vi ',��I �. `p `m acoo 0 0` w p R �I p a-ovoEo O. W >v �j toL .. t ^ �v I, o^'cU° I a tT a V C a� -mo � ~`' i Applicant Disclosure 1. LLC members and managers Managers and Members: Alex Pete Kotarides and O. Pete Kotarides Members: Pete Alex Kotarides, Pete O. Kotarides, Petro Kotarides, Basil Kotarides 2. Affiliated Business Entities Kotarides Builders LLC Kotarides Developers LLC KPM LLC 5601 LLC Corinth Homes LLC Arcadia LLC AAA of Norfolk Inc 5555 Associates Oyster Point Residential LLC Kotarides Builders Developer Inc. 352 Commercial LLC 734 LP 152 LLC 252 LLC 352 LLC 452 LLC Additional Disclosures Kroskin Design WPL Kaufman and Canoles McPhillips, Roberts and Dean, CPA Aquarius Engineering Lawyer's Title Insurance Leading Edge Realty & Century 21 Nachman Wolfe Enviromental Kimley Horn Bay Environmental 552 LLC 652 LLC 752 LLC 852 LLC 952 LLC 1052 LLC 1152 LLC 1252 LLC 1452 LLC 1552 LLC 1652 LLC 1752 LLC 1852 LLC 1952 LLC 2052 LLC DISCLOSURE STATEMENT KOTARIDES DEVELOPERS Agenda Item 17 Page 19 Item #17 Kotarides Developers Change of Zoning District Classification 920 South Military Highway District 1 Centerville September 12, 2007 REGULAR Joseph Strange: The next item is item 17, Kotarides Developers. An application of Kotarides Developers for a Change of Zoning District Classification from B-2 Community Business District to Conditional A-24 Apartment District on property located at 920 South Military Highway, District 1, Centerville with 15 proffers. Barry Knight: Welcome Ann. We would like to let you know that we have no noted opposition but this is such a large project so if you could give us a brief synopsis of it, that would give us a clear picture. Ann Crenshaw: Yes. For the record Mr. Knight, Mr. Chairman, Ann Crenshaw, I'm at the Virginia Beach office at Kaufman and Canoles. I have the pleasure of representing Kotarides Developers this afternoon. Kotarides has been in the business along time. They acquire, build, maintain and service their apartment complexes. They have over 1,700 apartment homes in the area, and have never sold one. So, they're in for the long term and they're local folks. The site is 16.94 acres. It is currently a old driving range, arcade, and a miniature golf facility. It is currently zoned B-2, and I'm grateful for the exchange that took place with Mr. Bourdon's application because this indeed could be a shopping center or a big box by -right. Instead my clients have proposed a residential community. They have asked for an A-24 classification, solely for height purposes. We have agreed to proffer no more than 18.5 units per acre. There will be twelve three-story apartment complexes, 300 units including 1, 2 & 3 bedroom apartments. We have more than adequate parking. The primary access will be on Old Providence Road. We have worked extensively with staff to make sure that we have complied with Category IV buffers. There will be very many amenities that were explained in detailed in the informal. We have also attempted with this project to fulfill the community need for workforce housing. We are providing the amenities that would go along with a languorous apartment complex but we can provide housing for folks who have as little as $36,000 income per year. And, the rents would be market. There are no subsidies. But, in short, I will say that what we want to do is eliminate what we believe we're offering is to generate less traffic then we could generate by -right with a B-2 use. We will be eliminating large stadium lighting that is currently affects the neighbors. We hope to perform a service by providing workforce housing that is attractive and an improvement to the neighborhood. Barry Knight: Ms. Crenshaw? You did say A-24 zoning? Item #17 Kotarides Developers Page 2 Ann Crenshaw: Yes. A-24 but we have proffered no more than 18.5 per unit. We needed that for the extra height. Barry Knight: Right. Thank you. Mr. Strange? Joseph Strange: Did Mr. Blevins want to make a statement? Ann Crenshaw: No. If I could just say one thing? We wrote approximately 18 civic leagues, offered to meet individually. They did not seek to do that. We instead, had a community meeting and since nobody really wanted to meet with us, we held one anyway and invited all of these folks to come. We had a few folks appear but none of whom who were in opposition to the projects. Barry Knight: Are there any questions for Ms. Crenshaw about the project? Okay. Thank you. Ms. Wood? Dorothy Wood: I would like to make a motion that it be approved. Barry Knight: There is a motion on the floor to approve by Dot Wood and a second by Kathy Katsias. Is there any discussion? I'll call for the question. Ed Weeden: By a vote of 11-0, the Board has approved the application of Kotarides Developers. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE AYE WOOD AYE Ed Weeden: By a vote of 11-0, the Board has approved the application of Kotarides Developers. In Reply Refer To Our File No. DF -6731 TO: Leslie L. Lilley FROM: B. Kay Wilson CITY OF VIRGINIA BEACH INTER -OFFICE. CORRESPONDENCE DATE: September 26, 2007 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Kotarides Developers LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 9, 2007. 1 have reviewed the subject proffer agreement, dated August 28, 2007 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/als Enclosure cc: Kathleen Hassen PING PING, LLC and KOTARIDES DEVELOPERS, LLC, a Virginia limited liability company To CITY OF VIRGINIA BEACH a Municipal Corporation of the Commonwealth of Virginia THIS PROFFER AGREEMENT ("Agreement") made this 28th day of August, 2007, by and among PING PING, LLC and KOTARIDES DEVELOPERS, LLC, a Virginia limited liability company (collectively, the "Grantor"); and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (the "Grantee"), with an address of 2405 Courthouse Dr., Municipal Center, Virginia Beach, VA 23456. RECITALS: A. Kotarides Developers, LLC ("Kotarides") is the contract purchaser of a certain parcel of property located in the City of Virginia Beach, herein known as Exhibit A (the "Property"), less and except all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens National Bank described in a Memorandum of Lease dated August 15, 1967, and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49, which shall be severed from the Property pursuant to a subdivision plat approved by the City of Virginia Beach as more particularly set forth herein. PREPARED BY: ANN K. CRENSHAW, ATTORNEY AT LAW, KAUFMAN & CANOLES, P.C. GPIN NO. 1456-23-0589-000 B. Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach by petition of Grantor addressed to Grantee to change the zoning classification of the Property from B-2 to Conditional A-24 Apartments. The proposed amendment is made pursuant to the terms of the City Zoning Ordinance of the City of Virginia Beach, adopted April 18, 1988, as amended and in effect on the date of this Agreement (the "City Zoning Ordinance"). C. Grantee's policy is to provide for the orderly development of land for various purposes, including commercial purposes, through zoning and other land development legislation. D. Grantor acknowledges that in order to prevent incompatible land use, reasonable conditions governing the use of the Property, in addition to the regulations generally applicable to land zoned A-24 Apartments as specified in the City Zoning Ordinance, are required to address the project proposed in Grantor's rezoning application. E. Grantor has voluntarily proffered in writing, prior to the public hearing before Grantee, as a part of the proposed amendment to the Zoning Map and in addition to the regulations specified in the City Zoning Ordinance for the A-24 Apartment zoning district, reasonable conditions outlined in this Agreement related to the development and operation of the Property. These conditions will be adopted as a part of the amendment to the Zoning Map relative to the Property, and have a reasonable relation to the use of the Property as rezoned A-24 Apartment and are needed as a result of the rezoning. F. The conditions outlined in this Agreement have been proffered by Grantor and allowed and accepted by Grantee as a part of the amendment to the City Zoning Ordinance and the Zoning Map. These conditions shall continue in full force and effect until a subsequent amendment changes the zoning of the Property; provided, however, that such conditions shall continue if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance of Grantee. NOW, THEREFORE, Grantor, its heirs, successors, assigns, grantees and other successors in title or interest to the Property, voluntarily and without any requirement by or exaction from Grantee or its governing body and without any element or compulsion or quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, makes the following declaration of conditions and restrictions governing the use and physical development and operation of the Property, and covenants and agrees that this declaration and the further terms of this Agreement shall constitute covenants running with the Property, which shall be binding upon the Property, and upon all persons and entities claiming under or through the Grantor, its heirs, successors and assigns, grantees and other successors in interest or title to the Property; namely: 1. The Property shall be used for the purposes and uses permitted in the A-24 Apartment District. Grantor agrees to a density not to exceed 18.5 apartment units per acre for a total number of apartments not to exceed 300 units. The maximum height of the buildings shall not exceed forty-five (45) feet. 2. A subdivision plat approved by the City of Virginia Beach shall be duly recorded to sever all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens National Bank described in a Memorandum of Lease dated August 15, 1967, and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49 (the "Leasehold Parcel") from the Property. The subdivision plat shall comply with applicable City Ordinances, including but not limited to the minimum lot size requirements. 3 3. Grantor shall comply with reasonable comments offered by the City. Grantor shall comply with all terms and conditions of all City Ordinances related to matters of Public Works, Traffic Engineering, Public Safety, Public Utilities and Storm Water Management. Grantor shall dedicate an additional right of way as more particularly set forth in the Site Plan. An application for an administrative variance to the Chesapeake Bay Preservation Act to encroach into the Variable Width Buffer has been submitted by the Grantor. 4. In order to provide for the coordinated development of the Property, the Property shall be developed in substantial conformity with that certain plan entitled "SCHEMATIC SITE PLAN, BELMONT AT PROVIDENCE" dated August 24, 2007, prepared by WPL (the "Site Plan"), a copy of which is on file with the City of Virginia Beach, Department of Planning, with regard to layout, ingress and egress, and landscaping. Grantor shall comply with all terms and conditions of all City Ordinances and Guidelines pertaining to landscape design. Category IV landscaping and fencing, as more particularly described in the Site Plan, and the color coordinated rendering exhibit prepared by Kotarides entitled `BELMONT AT PROVIDENCE CROSS SECTION SHOWING CATEGORY 4 LANDSCAPING ADJACENT TO BURLINGTON PLAZA" will be installed on all adjacent parcels zoned for business uses. Foundation planting beds, as more particularly described in the Site Plan, shall be five (5) feet from front to back. The landscaping shall substantially conform to the Site Plan and other exhibits submitted to City Council and the Planning Department for the City of Virginia Beach. 5. The exterior of the typical apartment building shown upon the Site Plan shall be substantially similar in appearance to the color coordinated rendering exhibits prepared by Kotarides, said exhibit being the same exhibits as the color coordinated exhibit submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and 0 being composed of the same building materials and elevations as reflected upon the said elevation exhibit on file in the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE TYPICAL BUILDING ELEVATION"). The building materials for the dwelling units will include brick veneer on the lower level, picket railings on the balconies, and horizontal lapped siding. 6. Belmont at Providence shall include a Clubhouse with an exercise facility, a kitchen, a swimming pool, central mail boxes and a business office. The Clubhouse shall be developed with architectural features that are substantially similar in appearance to those depicted on the color coordinated rendering exhibit prepared by Kotarides entitled `BELMONT AT PROVIDENCE CLUBHOUSE". The footprint of the Clubhouse shall be substantially similar in appearance to the Site Plan submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and being composed of substantially similar building materials and elevations as reflected upon the color coordinated rendering exhibit of the Clubhouse which is on file in the Planning Department of the City of Virginia Beach, Virginia. Building materials for the Clubhouse will be brick and siding materials. 7. The swimming pool shall include decorative water features, fencing, and a pergola. The pool will be developed with architectural features that are substantially similar to the color coordinated photograph of the swimming pool submitted to City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected therein. Building materials for the pool will be brick, masonry and concrete. The fencing surrounding the pool will be black anodized aluminum. 5 8. Private recreational amenities shall include a Picnic Shelter, a Tot Lot and gazebos for the residents of Belmont at Providence. The gazebos shall be developed with architectural features that are substantially similar to the photograph of the gazebo submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected therein. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. 9. Pedestrian trails will be constructed by utilizing environmentally friendly pervious materials to encourage the residents' interaction with the natural beauty of the site. The trails shall be developed with features that are substantially similar in appearance to the color coordinated rendering exhibit submitted to the City Council and on file with the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE VIEW OF PEDESTRIAN TRAIL and ACTIVE OPEN SPACES") prepared by Kotarides. As a matter of public safety, pedestrian trails shall be designed to maximize sight lines and surveillance opportunities by users, while keeping with the natural appearance of the open space. Pedestrian trail landscaping within eight (8) feet of the pathways will be kept low, less than three (3) feet, and tree canopies shall be raised up to seven (7) feet. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. 10. The community sign at Military Highway and the community sign and fencing will be built with architectural features that are substantially similar to the photographic exhibit of the signage and fencing submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected upon the color photographic renderings. The community C sign shall be externally lighted and constructed primarily of brick. The landscaping surrounding the community sign shall be substantially similar to that set forth in the Site Plan. 11. Open space shall be provided as shown upon the Site Plan, a copy of which is on file with the City of Virginia Beach, Department of Planning. The open space will not be open to the public at large. The open space shall be owned and maintained by the owner. 12. A Photometric Plan shall be submitted for review and approval. Full cut-off fixtures shall be used for parking lot lighting. All lighting on the site shall be consistent with those standards recommended by the Illuminating Engineering Society of North America. 13. Further lawful conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all appropriate agencies and departments of Grantee, which shall be observed or performed by Grantor. Grantor acknowledges that additional further lawful conditions or restrictions may be imposed by Grantee as a condition of approvals, including but not limited to final Site Plan approval. 14. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, in force as of the date the conditional rezoning amendment is approved by the Grantee. 15. 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 specified in this Agreement, including (a) the ordering in writing of the remedying of any noncompliance with such conditions, and (b) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, 7 abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the City Zoning Ordinance or this Agreement, a petition shall be filed to the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the Map the existence of conditions attaching to the zoning of the subject Property on the Map and that the ordinance and conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. REMAINDER OF PAGE LEFT INTENTIONALLY BLANK 8 WITNESS the following signs and seals: PING PING LLC, a Virginia limited liability company By: 4�Z Its: Manager COMMONWEALTH OF VIRGINIA CITY OF yy hesu(�eo.E.,T -wit: I, 1 ��i\Cio.. 1�,iC,y.� , the undersigned, a Notary Public in and for the City and State aforesaid, .do hereby certify that VjjQLW e , whose name is signed to the foregoing instrument as Manager of Ping Ping LLC, a Virginia limited liability company, has sworn to, subscribed, and aclgiowledged the same before me in the City and Commonwealth aforesaid this ��lay of MMU4 , 2007 on behalf of said limited liability company. Notary PublicT My commission ex fires: Registration No.: MELINDA TUCKER Notary Public commonwealth of Virginia M MY �ommissioe &P-. Feb 29 2008 { 0 KOTARIDES DEVELOPERS, LLC, a Virginia limited liability company By:0"' Q 4 0 C"? L _ Its: Manager COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: I, L/� �•jil N the uncerssigned, a_4otary Public in and for the City and State aforesaid, do hereby certify that 40 X15 Y-0`iA��tl�whose name is signed to the foregoing instrument as Manager of Kotarides Developers, LLC, a Virginia limited liability company, has sworn to, subscrib�e�,, and acknowledged the same before me in the City and Commonwealth aforesaid this AM day of �sNST , 2007 on behalf of said limited liability company. a& vV Notaroublic My commission expires: 4d — .3/ Registration No.: '706 iF#4 10 EXHIBIT A LEGAL DESCRIPTION PARCEL ONE: (Small Golf Parcel) Beginning at a point on the Easterly right-of-way line of Military Highway and the intersection of the common boundaries of Leasehold D, Leasehold C-1, and Leasehold C-2; as shown on "ALTA/ACSM Land Title Survey of a Portion of Tract "A" as described in (D.B. 3089, PG. 0333) for Indian River Family Golf Centers, Inc., Kempsville Borough, Virginia Beach, Virginia" dated 5/16/96; thence leaving the Easterly right-of-way line of Military Highway, South 05° 07' 14" West, 39.28' to a point; thence along a curve to the right having a central angle of 18° 04'48", a radius of 39.31', an arc length of 12.40', and a chord bearing of South 75° 50' 23" West to a point; thence continuing along a curve to the right having a central angle of 73° 05' 39", a radius of 13.01', an arc length of 16.59', and a chord bearing of South 30° 15'09" East to a point; thence South 06° 17'39" West, 65.80' to a point; thence South 00° 41'38" East, 40.21' to a point; thence South 06° 45' 05" East, 39.14' to a point; thence South 14° 46' 16" East, 88.15' to a point; thence South 12° 06'32" East, 35.76' to a point; thence South 05° 30'00" East, 45.67' to a point; thence South 08° 07' 02" East, 36.13' to a point; thence South 10° 09' 22" East, 251.38' to a point; thence South 24° 35' 13" East 189.24' to a point; thence along a curve to the left having a central angle of 72° 54'43", a radius of 100.00', an arc length of 127.26' and a chord bearing of South 61° 02' 34" East; thence South 54° 09' 37" East, 56.74' to a point on the Northerly side right-of-way line of Old Providence Road; thence along the Northerly side right-of-way line of Old Providence Road, South 78° 03' 56" West, 518.06' to a point; thence leaving the Northerly right-of-way line of Old Providence Road, North 11 ° 56' 04" West, 46.73' to a point; thence North 30° 28' 42" East, 200.00' to a point; thence North 151 41' 56" East, 331.49' to a point; thence North 04° 54' 28" West, 423.74' to a point on the right-of-way line of Military Highway; thence along the Easterly right-of-way line of Military Highway; North 300 28' 42" East, 68.99' to a point which marks the point of beginning. The above described parcel contains 3.115 acres, more or less. PARCEL TWO: (Large Golf Parcel) Beginning at a pin found on the Easterly right-of-way line of Military Highway and the common boundary line of Leasehold C-1 and Leasehold D as shown on "ALTA/ACSM Land Title Survey of a Portion of Tract "A" as described in (D.B. 3089, PG. 0333) for Indian River Family Golf Centers, Inc., Kempsville Borough, Virginia Beach, Virginia" dated 5/16/96; thence along the Easterly right-of-way line of Military Highway North 30° 28' 42" East, 41.94' to a point; thence leaving the right-of-way line of Military Highway, South 59° 31' 18" East, 138.42' to a point; thence South 131 12' 32" West, 207.36' to a point; thence South 59° 32' 58" East, 40.00' to a point; thence South 050 59'38" East, 250.00' to a point; thence North 84° 00' 22" East, 150.00' to a point; thence North 05° 59' 38" West, 63.29' to a point; thence North 84° 00'22" East, 533.61 to a point; thence South 08° 32' 34" East, 66.75' to a point; thence South 58° 55' 01" East, 190.88' to a point; thence South 15° 58' 59" East, 172.26' to a point on the Northerly side right- of-way line Old Providence Road; thence along the Northerly side right-of-way of Old Providence Road the following courses and distances, South 72° 34' 51" West, 50.19" to a point; thence South 39° 16' 51 West, 206.36 to a point; thence along a carve to the right having a central angle of 38° 47' 05", a radius of 268.18', an arc length of 181.54', and a chord bearing of South 58° 40' 24" West to a point; thence South 78° 03' 56" West, 494.57' to a point; thence leaving the Northerly side right-of-way line of Old Providence Road, North 54° 09' 37" West, 56.74' to a point; thence along a curve to the right having a central angle of 72° 54'43", a radius of 100.00', an arc length of 127.26', and a chord bearing of North 610 02' 34" West to a point; thence North 24° 35' 13"..West, 189.24' to a point; thence North 10° 09' 22" West, 251.38' to a point; thence North 080 0702" West, 36.13' to a point; thence North 05° 30'00" West, 45.67to a point; thence North 12° 06' 32" West, 35.76' to a point; thence North 14° 46' 16" West, 88.15' to a point; thence North 06° 45' 05" West, 39.14' to a point; thence North 00° 41' 38" West, 40.2P to a point; thence North 06° 17' 39" East, 65.80' to a point; thence along a curve to the left having a central angle of 73° 05' 39" a radius of 13.01', an arc length of 16.59', and a chord bearing of North 30° 15'09" West to a point; thence continuing along a curve to the left having a central angle of 18° 04' 48", a radius of 39.31', an arc length of 12.40', and a chord bearing of North 75° 50' 23" West to a point; thence North 05° 07' 14" East, 39.28' to a point on the Easterly right-of-way line of Military Highway; thence leaving the Easterly right-of-way line of Military Highway, South 470 28' 09" East, 95.35' to a point; thence South 59° 31' 18" East, 66.00' to a point; thence North 72" 10' 42" East, 47.00' to a point; thence North 13° 12' 32" East, 176.79' to a point; thence North 590 31' 18" West, 138.02' to a point on the Easterly right-of-way line of Military which marks the point of beginning. The above described parcel contains 13.825 acres. It being the same property conveyed to Ping Ping, LLC, by deed from Weiguo Ge and Ping Ping Fan, husband and wife, dated February 7, 2006, recorded as instrument number 20060302000329280. Assignment of landlord's interest in leases assigned from Weiguo Ge and Ping Ping Fan to Ping Ping, LLC by instrument dated February 28, 2006, recorded as instrument number 20060302000329290. Less and except that all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens National Bank described in a Memorandum of Lease dated August 15, 1967, and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49. 8266356\1 4 L. APPOINTMENTS WORKFORCE HOUSING ADVISORY BOARD A UNFINISHED BUSINESS IN X NEW BUSINESS ADJOURNMENT CITYWIDE TOWN MEETINGS October 16, 2007 Virginia Beach Convention Center - 7:15 pm FY 2008-2010 Budget January 15, 2008 Location to be Announced — 7:15 pm Stormwater Plans and Funding CITY COUNCIL's WORKSHOP 16 OCTOBER 2007 CANCELLED [IN LIEU OF THE CITY-WIDE TOWN MEETING] If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS III/ IV E-1 CERTIFICATION OF CLOSED SESSION CERTIFIED V Y Y A Y Y Y Y Y Y 0 Y I MINUTES DATE: October 2, 2007 M B L D APPROVED 10-0 Y Y C E Y L Y Y Y E D G/ H C R A W PAGE: 1 S I E J L N U N I T E D N O A D H U L W A E Z Y L N N 0 R E S 0 SUBJECT MOTION VOTE p E E E E A R I V 0 0 f H L R Y S N F N A N D MY III/ IV E-1 CERTIFICATION OF CLOSED SESSION CERTIFIED 10-0 Y Y A Y Y Y Y Y Y Y Y F-1 MINUTES Informal/Formal Sessions September 25, 2007 APPROVED 10-0 Y Y A Y Y Y Y Y Y Y Y G/ PUBLIC COMMENT H-1 NO SPEAKERS 2008 COMMUNITY LEGISLATIVE AGENDA I/ Ordinance toAMEND/REORDAIN §§ 2-114/ ADOPTED BY 10-0 Y Y A Y Y Y Y Y Y Y Y J-1 2-117.2x1-121/2-132 of City Code re VAState CONSENT Code compliance 2 Ordinance to AUTHORIZE temporary ADOPTED BY 10-0 Y Y A Y Y Y Y Y Y Y Y encroachment into portionof West Canal, for CONSENT BRIAN B/MICHELLE J. WARREN adjacent to 2005 Compass Circldconstruct/maintain floating dock/deck/piles/maintain existing vinyl bulkhead/ boatli8 DISTRICT 5 - LYNNHAVEN 3 Ordinances to ACCEPT/APPROPRIATE: ADOPTED BY 10-0 Y Y A Y Y Y Y Y Y Y Y CONSENT a. To EMS: 1. $73,386 Grant from DHS Assistance to Firefighters re medical training equipment 2. $61,600 EMS "Four for Life" special revenue fund re supplies6quipment for Police/EMS Medevac Helicopter b. To HousingiNeighborhood Preservation: 1. $60,000 Grant from FEMA re Disaster Housing Assistance Program 4 Resolution toAPPOINT Erin T. Stubbe as ADOPTED BY 10-0 Y Y A Y Y Y Y Y Y Y Y Associate City Attorney, effective Oct 16, 007 CONSENT CITY OF VIRGINIA BEACH Resolution re compensation fbiCITY COUNCIL APPOINTEES: a City Manager b. City Attorney C. City Assessor d. City Clerk ADOPTED BY CONSENT 8-2 10-0 8-2 10-0 N Y N Y Y Y Y Y A A A A Y Y Y Y Y Y Y Y N Y N Y Y Y Y Y Y Y Y Y Y Y Y Y SUMMARY OF COUNCIL ACTIONS Y Y Y Y K APPOINTMENTS MINORITY BUSINESS COUNCIL Indy Freemont APPOINTED 10-0 V Y A DATE: October 2, 2007 Y Y Y Y Y Y 0 I Unexpired Term M B L D C E L PAGE: 2 E D RESORT ADVISORY COMMISSION H 10-0 C R A A w Y Y S I Y E J L N U N I A AGENDA T E D N O A D H U L w ITEM # SUBJECT MOTION VOTE E p Z Y L N N 0 R E S O WORKFORCE HOUSING APPOINTED: E E E E A R I V 0 0 H L R Y S N F N A N D 5 Resolution re compensation fbiCITY COUNCIL APPOINTEES: a City Manager b. City Attorney C. City Assessor d. City Clerk ADOPTED BY CONSENT 8-2 10-0 8-2 10-0 N Y N Y Y Y Y Y A A A A Y Y Y Y Y Y Y Y N Y N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y K APPOINTMENTS MINORITY BUSINESS COUNCIL Indy Freemont APPOINTED 10-0 Y Y A Y Y Y Y Y Y Y Y Unexpired Term Thru 5.31.09 RESORT ADVISORY COMMISSION APPOINTED/ 10-0 Y Y A Y Y Y Y Y Y Y Y Billy Almond Extended Trms 10-0 Y Y A Y Y Y Y Y Y Y Y John Malbon One Year 10-0 Y Y A Y Y Y Y Y Y Y Y WORKFORCE HOUSING APPOINTED: ADVISORY BOARD: Eff: 10.1.07 COUNCIL MEMBERS: osemary Wilson Tenure 10-0 Y Y A Y Y Y Y Y Y Y Y Robert 13yer Tenure 10-0 Y Y A Y Y Y Y Y Y Y Y Harry E. Diezel - Alternate LAND USE PLANNER Tenure 10-0 Y Y A Y Y Y Y Y Y Y Y b Miller 1 year 10-0 Y Y A Y Y Y Y Y Y Y Y LICENSED RE�onSTATE ... 2 years 10-0 Y Y A Y Y Y Y Y Y Y Y REP OF LENDING INSTITUTION Hank boya 3 years 10-0 Y Y A Y Y Y Y Y Y Y Y BUILDER To m- Oliveri BUILDER — MUald LTI-FAMILY 4 years 10-0 Y Y A Y Y Y Y Y Y Y Y PLANNING STAFF 1 year 10-0 Y Y A Y Y Y Y Y Y Y Y p2 years 10-0 Y Y A Y Y Y Y Y Y Y Y NON-PROFIT IT ORG Mary Kay Horoszewski CITIZE99 AT -LARGE 3 years 10-0 Y Y A Y Y Y Y Y Y Y Y an Saxter Tim McCarthy 4 years 10-0 Y Y A Y Y Y Y Y Y Y Y William Adam White 1 year 10-0 Y Y A Y Y Y Y Y Y Y Y 2 years 10-0 Y Y A Y Y Y Y Y Y Y Y L/ M/ NEW BUSINESS: EXPLANATION OF USFHA move to California by Cindy Curtis, Dir Parks and Rec N ADJOURNMENT: 6:11 P.M CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V 0 I DATE: October 2, 2007 M B L D C E L E D H C R A W PAGE: 3 S I E J L N U N I T E D N 0 A D H U L W AGENDA E Z Y L N N O R E S 0 ITEM # SUBJECT MOTION VOTE p E E E E A R I V O 0 H L R Y S N F N A N D PUBLIC COMMENTS ONE SPEAKER CITYWIDE TOWN MEETINGS October 16, 2007 Virginia Beach Convention Center- 7:15 pm FY 2008-2010 Budget January 15, 2008 Location to be Announced — 7:15 pm Stormwater Plans and Funding CITY COUNCIL's WORKSHOP FOR TUESDAY, OCTOBER 16, 2007 CANCELLED IN LEIU OF THE CITY-WIDE TOWN MEETING [AS SHOWNABOVEI