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Home My WebLink AboutMARCH 24 2009 AGENDA I II CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR WIllIAM D. SESSOMS JR., AI-Large VICE MAYOR LOUIS R. JONES. Bayside - District 4 GLENN R. DA VIS, Rose Hall - District 3 WILLIAM R. DeSTEPH, AI-Large HARRY E. DIEZEL, Kempsville - District 2 ROBERT M. DYER, Cenlerville - District I BARBARA M HENLEY, Princess Anne - District 7 JOHN E. UHRIN, Beach - District 6 RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER - JAMES K. SPORE CITY ATTORNEY MARK D. STILES CITY ASSESSOR - JERALD BANAGAN CITY AUDITOR - LYNDON S. REMIAS CITY CLERK - RUTH HODGES FRASER, MMC CITY COUNCIL AGENDA CITY HALL BUlLDlM 240i COURTHOUSE DR/V. ViRGINIA BEACH. VIRGINIA 23456-900 PHONE:(757) 385-430 FAX (757) 385-566 E-MAIL: ctycncl@vbgov.co 24 MARCH 2009 I. CITY MANAGER'S BRIEFING - Conference Room - 3:00 PM A. INTERIM FINANCIAL STATEMENT Patricia Phillips, Director- Finance B. PARKING SYSTEM RATES James Ricketts, Director - Convention & Visitors Bureau (CVB) II. CITY COUNCIL COMMENTS III. CITY COUNCIL AGENDA REVIEW IV. INFORMAL SESSION - Conference Room - 4:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION AGENDA - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend John O. Ponder Pastor, Abundant Grace Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS March 10, 2009 G. AGENDA FOR FORMAL SESSION H. PRESENTATION OPERATING and CAPITAL BUDGETS FY2009-2010 Catheryn Whitesell, Director-Management Services I. PUBLIC HEARINGS 1. SALE OF EXCESS CITY PROPERTY 2245 Reuben Street - Gatewood Park 2. LEASE OF CITY OWNED PROPERTY - Farmers Market a. Andrew Skipper, t/a Homegrown Country Market re: Space #10 b. Paul and MaryJean Reid, t/a MaryJean's Bakery re: Space #11 I. CONSENT AGENDA 1. ORDINANCES/RESOLUTIONS 1. Ordinances re City Code: a. AMEND ~21-322 and 21-324 re: Parking Meter Rates b. AMEND Chapter 5 re: Animals and Fowl c. REPEAL ~33-131 re: Newsracks 2. Ordinance to REVISE the City Council Policy re: Time Limits for Speakers at City Council Meetings on the first meeting of each month. 3. Ordinance to DECLARE City-owned land as excess property re: 2245 Reuben Street to Tammy McClenney and AUTHORIZE the City Manager to convey the property. DISTRICT 6 - BEACH 4. Resolution to COMMEND the Virginia Beach Restaurant Association, Matt Falvey, and Laura and Kal Habr re: successful efforts in supporting State Legislation to Prohibit Smoking in Restaurants. 5. Resolution to AUTHORIZE the Virginia Beach School Board to submit the Loan Application to the Virginia Board of Literary Fund re: construction of Great Neck Middle School. 6. Ordinance to AUTHORIZE the extension of the Pilot Program re: Horseback Riding on the Beach and AUTHORIZE the City Manager to execute an Amended Franchise Agreement. DISTRICT 6 - BEACH 7. Ordinance to AMEND the Open Air Cafe Regulations re: allowing open air cafes in the Resort Gateway Corridors and West of Pacific Avenue. 8. Ordinances to A UTH 0 RIZE the City Manager to execute leases of City-owned property for three (3) years at the Virginia Beach Farmers Market: a. Andrew Skipper t/a Homegrown Country Market re: Space #11 b. MaryJean Reid t/a MaryJean's Bakers re: Space #10 DISTRICT 7 - PRINCESS ANNE 9. Ordinance to AUTHORIZE a temporary encroachment into a portion of City owned property - Canal No.2 - for OCEANA DEVELOPMENT, L.P. and OCEANA DEVELOPMENT, LLC, to construct and maintain adequate drainage. DISTRICT 6 - BEACH 10. Ordinance to ESTABLISH Capital Project #3-143; and, ACCEPT and APPROPRIATE $4,000,000 from the United States Department of Homeland Security re: Urban Area Security Initiative (UASI) Interoperable Communications Technology Grant - Phase II. K. PLANNING 1. Application of SCOTT and DALE BANNING for a Nonconforminl! Use re alterations and additions to a garage apartment at 114 54th Street. DISTRICT 6 - BEACH RECOMMENDATION: APPROVAL 2. Application of BRUCE and ELIZABETH HEDLUND for a Variance to the Subdivision Ordinance re subdividing the property at 5711 Lancelot Drive into two (2) single-family home sites. DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROVAL 3. Application of ROBERT H. JOHNSON for a Variance to the Subdivision Ordinance re subdividing the property at 1601 Virginia Beach Boulevard into two (2) single-family home sites DISTRCT 6 - BEACH RECOMMENDATION APPROVAL 4. Application of MCRJERS, LLC for the closure of a portion of Windsor Crescent at 3868 Jefferson Boulevard. DISTRICT 4 - BA YSIDE RECOMMENDATION APPROVAL 5. Application of TOWN CENTER ASSOCIATES, L.L.C. for the closure ofa portion of Market Street at the intersection of Market and Columbus Streets DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROVAL I Ii 6. Application of TOWN CENTER BLOCK 10 APARTMENTS, L.P., for a Conditional Use Permit re allow a public or private college or university on the first floor of The Cosmopolitan Apartments at 4544 Columbus Street. DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROVAL 7. Application of REGENT UNIVERSITY for a Conditional Use Permit re development of two (2) student dormitory buildings and a dining hall at 1352 and 1354 Regent University Drive. DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL 8. Application of STUDIO BAMBOO INSTITUTE OF YOGA for a Conditional Use Permit re yoga at 2865 Lynnhaven Drive. DISTRICT 5 - L YNNHA VEN 9. Application of JULIE COLEMAN - ZEN HOT YOGA for a Conditional Use Permit re yoga at 3352 Princess Anne Road, Suite 901. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL 10. Applications of DANIEL J. BLEVINS at 920 Military Highway: a. Modifications of Condition No. 1 re increase the number of units per acre from 18.5 units to 19 (approved by City Council on October 9, 2007) b. Change of Zoning District from A-24 Apartment District to B-2 Community Business re elimination of split zoning that currently exists DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL 11. Application ofFLORIDAYS, L.L.C., for a Change of Zoning from R-7.5 Residential to Conditional A-24 Apartment District re constructing a sixteen (16) unit townhome-style community at 4303 Bonney Road DISTRICT 5 - L YNNAHVEN RECOMMENDATION APPROVAL 12. Application of HARMONY INVESTMENTS, INC. FOR a Change of Zoning from I-I Light Industrial District to Conditional A-36 Apartment District re developing Two Hundred Twenty-Four (224) multi-family dwellings, parking, landscaping, leasing office, clubhouse and pool at 5321 Greenwich Road. DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROVAL L. UNFINISHED BUSINESS M. NEW BUSINESS N. ADJOURNMENT PROPOSED RESOURCE MANAGEMENT PLAN FY 2010 BUDGET WORKSHOPS April 7 April 14 April 21 April 23 April 28 May 5 May 12 Workshop Workshop Workshop Public Hearing (changed from April 16) Workshop and Public Hearing Reconciliation Workshop Public Hearing for Adoption Council Conference Room Council Conference Room Council Conference Room Green Run High School- 6 p.m. Council Chamber - 6 p.m. Council Conference Room Council Chamber - 6 p.m. ********* 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 0312412009.afb www.vbl!.ov.com I. CITY MANAGER'S BRIEFING - Conference Room - 3:00 PM A. INTERIM FINANCIAL STATEMENT Patricia Phillips, Director- Finance B. PARKING SYSTEM RATES James Ricketts, Director - Convention & Visitors Bureau (CVB) II. CITY COUNCIL COMMENTS III. CITY COUNCIL AGENDA REVIEW IV. INFORMAL SESSION - Conference Room - 4:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION AGENDA - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend John O. Ponder Pastor, Abundant Grace Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS March 10, 2009 G. AGENDA FOR FORMAL SESSION Ilrsnlutinu 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, THEREFO~, B~ 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. PRESENTATION OPERATING and CAPITAL BUDGETS FY2009-201O Catheryn Whitesell, Director-Management Services II ill ,II I. PUBLIC HEARINGS 1. SALE OF EXCESS CITY PROPERTY 2245 Reuben Street - Gatewood Park 2. LEASE OF CITY OWNED PROPERTY - Farmers Market a. Andrew Skipper, t/a Homegrown Country Market re: Space #10 b. Paul and MaryJean Reid, t/a MaryJean's Bakery re: Space #11 PUBLIC HEARING SALE OF EXCESS CITY PROPERTY The Virginia Beach City Council will hold a PUBLIC HEARING on the disposition and sale of excess City property, Tuesday, March 24, 2009, at 6:00i p.m., in the Council Chamber of the City Hall Building (Building #1) at the Virginia Beach Municipal Center, Virginia Beach, Virginia. The property is located at 2245 Reuben Street (GPIN: 2407-02-1616) in Gatewood Park Subdivision. The purpose of this Hearing will be to ,)t)tain public input to determine whether this property should be declared "Excess of the City's needs". If you are physically di~abled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 386-4303; Hearing Impaired, call 711 (Virginia Relay -Telephone Device for the Deaf). Any questions concerning this matter sl10uld be directed to the Office of Real Estate. Building #2, Room 392, at the Virginia Beach Municipal Center (757)385-4161. Ruth Hodges Fraser. MMC City Clerk Beacon March 15. 2009 19952036 I i III PUBLIC HEARING LEASE OF CITY PROPERTY The Virginia Beach City Council will hold a PUBUC HEARING on the proposed leasing of City-owned property for the following parcel on Tuesday, March 24, 2009, at 6:00 p.m. in the CounCil Chamber of the City Hall Building iBuilding #1} at the Virginia Beach \llJniclpal Center. Virginia Beach, Virginia. The purpose of this H~~aring will be to obtain public comment regarding t/le proposed lease agreement of City-owned: ,jloperty located at the Virginia Beach Farmers Market, dS detined tJelow: 1} Space # 11: Andrew Skipper (tja Homegrown Country Market) Any questions concerning this matter should be directed to Melvin Atkinson, Farmers Market Manager, by calling 385-8886. If you are physically disabled or visually Impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385 4303: Hearing Impaired, call TOO only 711 (TOO Telephone Device for the Deaf). Ruth Hodges Fraser, MMC City Clerk Beacon March 15. 2009 19955394 PUBLIC HEARING LEASE OF CITY PROPERTY Tile Virginia Beach City Council will hold a PUBLIC HEARING on the proposed leasing of City-owned property for the following parcel on Tuesday, March 24, 2009, 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 regarding the proposed lease agreement of City-owned property located at the Virginia Beach Farmers Market, as defined below: 1) Space # 10: Paul and MaryJean Reid (t/a MaryJean's Bakery) Any questions concerning this matter should be directed to Melvin Atkinson, Farmers Market Manager, by calling 385-8886. If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385 4303; Hearing Impaired, call TDD only 711. (TOO Telephone Device for the Deaf). Ruth Hodges Fraser, MMC City Clerk Beacon March 15, 2009 19955368 .11 I. CONSENT AGENDA J. ORDINANCES/RESOLUTIONS 1. Ordinances re City Code: a. AMEND ~21-322 and 21-324 re: Parking Meter Rates b. AMEND Chapter 5 re: Animals and Fowl c. REPEAL ~33-131 re: Newsracks 2. Ordinance to REVISE the City Council Policy re: Time Limits for Speakers at City Council Meetings on the first meeting of each month. 3. Ordinance to DECLARE City-owned land as excess property re: 2245 Reuben Street to Tammy McClenney and AUTHORIZE the City Manager to convey the property. DISTRICT 6 - BEACH 4. Resolution to COMMEND the Virginia Beach Restaurant Association, Matt Falvey, and Laura and Kal Habr re: successful efforts in supporting State Legislation to Prohibit Smoking in Restaurants. 5. Resolution to AUTHORIZE the Virginia Beach School Board to submit the Loan Application to the Virginia Board of Literary Fund re: construction of Great Neck Middle School. 6. Ordinance to AUTHORIZE the extension of the Pilot Program re: Horseback Riding on the Beach and AUTHORIZE the City Manager to execute an Amended Franchise Agreement. DISTRICT 6 - BEACH 7. Ordinance to AMEND the Open Air Cafe Regulations re: allowing open air cafes in the Resort Gateway Corridors and West of Pacific Avenue. 8. Ordinances to AUTHORIZE the City Manager to execute leases of City-owned property for three (3) years at the Virginia Beach Farmers Market: a. Andrew Skipper t/a Homegrown Country Market re: Space #11 b. MaryJean Reid t/a MaryJean's Bakers re: Space #10 DISTRICT 7 - PRINCESS ANNE 9. Ordinance to AUTHORIZE a temporary encroachment into a portion of City owned property - Canal No.2 - for OCEANA DEVELOPMENT, L.P. and OCEANA DEVELOPMENT, LLC, to construct and maintain adequate drainage. DISTRICT 6 - BEACH 10. Ordinance to ESTABLISH Capital Project #3-143; and, ACCEPT and APPROPRIATE $4,000,000 from the United States Department of Homeland Security re: Urban Area Security Initiative (UASI) Interoperable Communications Technology Grant - Phase II. ,II , ~~":\ rr.F'<: 'Ii.~ ko:l' T \\ ~'. ~-" ;) 'l';., ;,) ~""~''t ~y CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Sections 21-322 and 21-324 of the City Code Pertaining to Parking Meter Rates MEETING DATE: March 24, 2009 . Background: Pursuant to City Code Section 21-322(a), parking meters in the City cost seventy five cents ($0.75) per hour. The City has not increased the rates since 1984, although the City's costs for labor, maintenance and materials have increased dramatically. Currently, the average rate charged by Norfolk and other Hampton Road communities is one dollar ($1.00) per hour. City Code Section 21-324(a) provides that parking meter rates apply only between April 1 and October 1. There is no charge for parking in a metered space for the remainder of the year. . Considerations: The ordinance proposes to change the City Code in two respects. First, the ordinance amends City Code Section 21-322(a) to give the City Manager or his designee the discretion to increase the hourly rate for parking in a metered space in the City. The purpose of the amendment is to permit the City Manager to increase the hourly rate for parking in a metered space to one dollar ($1.00) per hour, with the intention that the City Manager would advise City Council of any future rate increases. Second, the ordinance amends City Code Section 21-324(a) to extend, by one month, the timeframe during which the City charges for parking in a metered space. Whereas the existing City Code provides that parking meter rates apply only between April 1 and October 1, the proposed revision provides that parking meter rates would apply between April 1 and November 1. The Convention and Visitors Bureau believes that an increase in the parking meter rate, and an extension of the time in which the metered rates apply, would bring the City in line with the industry standard, and would sustain the City's Parking Enterprise Fund. The two changes proposed by the ordinance would collectively generate an additional one hundred and eighty eight thousand dollars ($188,000) annually for the Parking Enterprise Fund. . Public Information: Information will be provided through the normal agenda process. . Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/Agency: Convention and Visitors Bureau &tJ~ City Manage~ V- . Oc3&>"t. 1 AN ORDINANCE TO AMEND SECTIONS 21- 2 322 AND 21-324 OF THE CITY CODE 3 PERTAINING TO PARKING METERS 4 5 SECTIONS AMENDED: ~ 21-322 AND ~ 21-324 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Sections 21-322 and 21-324 of the Code of the City of Virginia Beach, 11 Virginia, are hereby amended and reordained to read as follows: 12 13 Sec. 21-322. Deposit of coin required; exemption for senior citizens; overtime 14 parking generally. 15 16 (a) When any vehicle shall be parked in any parking meter space designated 17 as provided in this Division, the operator of such vehicle shall, upon entering such 18 space, immediately deposit, or cause to be deposited, one or more coins of the United 19 States of America in the parking meter adjacent thereto, and such space may then be 20 lawfully occupied by such vehicle during the period of parking time calculated on tho 21 basis of sovonty fivo conts ($0.75) per hour at an hourly rate in an amount to be 22 determined by the City Manaoer or his desionee, not to exceed, however, the maximum 23 time prescribed by Section 21-423. If such vehicle shall remain in such parking space 24 beyond the period of parking time calculated on tho basis of seventy fivo cents ($0.75) 25 per hour at an hourly rate in an amount to be determined by the City Manaoer or his 26 desianee, the parking meter shall display a sign or signal showing illegal parking, in 27 which event, the vehicle parked in such parking space shall be considered as parked 28 overtime and beyond the period of legal parking time. 29 30 31 32 Sec. 21-324. Hours and dates during which Division is applicable. 33 34 (a) The provisions of this Division shall apply to parking twenty-four (24) hours 35 per day in all areas, every day including federal and state legal holidays and Sundays 36 from April first to Ootobor November first of each calendar year. 37 38 (b) Pursuant to Section 21-320, the City Manager shall have the authority to 39 designate specific areas in which the hours and/or dates that the provisions of this 40 Division is applicable are different from the hours and/or dates set forth in subsection 41 (a), provided that any such area is clearly identified by signs, curb markings or other 42 means. Adopted by the City Council of the City of Virginia Beach, Virginia, on this _ day of , 2009. I i III APPROVED AS TO CONTENT: CA11072 R-3 March 17, 2009 :11 APPROVED AS TO LEGAL SUFFICIENCY: ;:e~ k- City Attorney's Office C:it:y C>T "Virgi~ia. Bea.ch "Hgu,.cllltl OFFICE OF THE CITY MANAGER (161) 385-4242 FAX (151) 421-5626 TOO (15n 385-4305 MUNICIPAl CENTER BUilDING 1. ROOM 234 2401COURTHOUSEDR~ VIRGINIA BEACH, VA 2345&-lllI01 March 18, 2009 The Honorable William D. Sessoms, Jr. And Members of City Council Subject: Elimination ofWedncsday Parking Program and Extension oftbe Paid Parking Season Dear Mayor and Council Members: During the summer of 2003, City Council adopted a resolution to provide free parking on Wednesdays for Virginia Beach residents at all municipally-operated parking facilities. The purpose of this program was to encourage residents to visit the resort during mid-week. The initial resolution was from April 1, 2003, to September 30, 2003; however, the program was extended to allow further evaluation of its effectiveness. Statistical data has shown no measurable increase in residents' use of resort parking facilities since the program was implemented. The free Wednesday program has cost the Parking Enterprise Fund approximately $153,000 from 2003 - 2008. Staff recommends eliminating the free Wednesday parking program effective April I, 2009. It is also important to note that Virginia Beach is rapidly becoming a year round destination. Specifically, visitation to our resort in October has grown in recent years as has the need for managed parking to accommodate the increase in visitors. The resort has also become a popular special event destination during October with 11 pennitted special events to date for 2009. This increase in resort visitation during the shoulder season has required us to rethink our strategy for the seasonal operation of our municipal parking facilities. To ensure our continuing success and to provide adequate parking services for our guests, staff recommends extending the paid parking season through October 31 each year. We see this as a farst step towards the eventual need for year round parking management. Staff will be providing a briefing on Tuesday regarding parking at the oceanfront. We look forward to receiving Council's input. With Pride in Our City, l JKS/JBR/kd cc: Steve Herbert, Deputy City Manager 'II <I !'~..:J ~f3 . ~-",-,-.~~ .. :~~._,.---~. " .--...... '.-:'--.~'~~-: -::-~~"~'~}'~'r"~~.~~:~:~~r~:"~"': r---" / ----"':.'\-"-".-"._.7'.~~ .. .' .' .' .' ~. ..' .' .' .' .' .' ..... .' .' ..' '" ... ,.i.. -..~ RT.l1 ZONING . /ti:r . 2 ZONING RT . 3 ZONING ...<>~"-...-- -- " .., :;~ .. 1/;' . : RT. 3 (LASKIN ROAD GATEWAY OVERLAY) ZONING OS (OLD BEACH OVERLAY) ZONING to dB Ldn ","::1.;;::-' 65-70 dl '.:.:'-..., 70-';5-'(/8 Ltin l!?i "...'::~. 17' . ':~~,:- ...,.........-.............. -. - -- -. -. -. \ ^.l--~ . \ \ \ \ \ .dn \ 1 j \ . . . . . . . . . . RT - 1 Zd,ING . . RT - , ZONillG . . . "" -"--',- ,.,.. -'-~"ZORINC:;:'-- . . RT . 3 (LASKIN RoAD GATEWAY OVERLAY) ZONllvs . . OB (OLD BEACH 0VJ\u.AY) ZONING . . . . \ ':. l ---.-. .~------_._---...: ~ \- ,- ...- ",~ ) \ \ I \ j , ~ \ .---..--..------ ---.-: .~ ~ ! i l I : I j _.-J I . . I I j : . . I I . . \ I : \ : .~............... - ~ \.. . _........--,~.- -1 I \ ,II ' ~& ~ -I~"~" "0. -'.TO fg ~~\ \,,~ ;J ~~~ ~/t ~:Y CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Chapter 5 of the City Code Pertaining to Animals and Fowl MEETING DATE: March 24, 2009 . Background: The 2008 General Assembly re-codified and reorganized Code of Virginia Title 3.1, which addresses animal care, among other topics. This ordinance reorganizes and updates Chapter 5 of the City Code (Animals and Fowl) to reflect the changes made to state law and to better organize the City Code provisions regarding animals. The attached matrix details the changes made by this ordinance. Most of the changes are non-substantive, but changes in the state law require the inclusion of several revised provisions regarding dangerous and vicious dogs that are not currently contained in the City Code. Those substantive changes were made to bring the City Code into conformance with state law. Additional substantive changes include: a section incorporating all pertinent Code of Virginia definitions by reference; a section that specifically authorizes the City to be reimbursed by a pet owner for vet expenses incurred by the City in caring for the pet; a section prohibiting the sale of garments containing dog or cat fur; and a provision prohibiting interference with guide dogs. . Considerations: These amendments enable law enforcement to issue summonses and citations for animal-related offenses under the City Code instead of the Code of Virginia. Penalties assessed by the court for City Code violations are paid to the City, while penalties assessed by the court for violations of state law are paid to the state. . Public Information: Public information will be coordinated through the traditional Council agenda process. . Attachments: Ordinance and Matrix of Changes Recommended Action: Adoption .~ Submitting Department/Agency: Police Department Nr ~ City Manager:~ K, ~fI01. 1 AN ORDINANCE TO AMEND CHAPTER 5 OF 2 THE CITY CODE PERTAINING TO ANIMALS 3 AND FOWL 4 5 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 6 BEACH, VIRGINIA: 7 8 That Sections 5-1 to 5-103 of the Code of the City of Virginia Beach, Virginia are 9 hereby repealed, and that Chapter 5 of the City Code is hereby amended and 10 reordained to read as follows: 11 12 ARTICLE I. IN GENERAL 13 14 Sec. 5.100. Violations. 15 16 Unless otherwise specifically provided. a violation of any provision of this Chapter 17 shall constitute a Class 4 misdemeanor. 18 19 Sec. 5.101. Enforcement of this Chapter. 20 21 The provisions of this Chapter shall be enforced by the City Animal Control 22 Officers and by City law-enforcement officers. 23 . 24 Sec. 5-102. Definitions. 25 26 All definitions of words and phrases contained in the Code of Viroinia ~ 3.2-6500 27 are hereby adopted and shall apply to such words and phrases when used in this 28 Chapter. unless clearly indicated to the contrary. 29 30 ARTICLE II. RABIES 31 32 Sec. 5.200. Vaccination or inoculation of doas or cats. 33 34 (a) It shall be unlawful for anv person to own. keep. hold or harbor anv doa or 35 cat over the aae of four (4) months within the City. unless such doa or cat is currently 36 vaccinated with a rabies vaccine. licensed by the United States Department of 37 Aariculture for use in that species. If. however. the reauirement of vaccination or 38 inoculation threatens the physical well-beina of such doa or cat. the owner of such doa 39 or cat shall have a certificate sianed by a licensed veterinarian certifyina the same and 40 the owner shall keep such doa or cat in auarantine until the same is inoculated or 41 vaccinated. 42 43 (b) Any person transportina a doa or cat into the City from some other 44 iurisdiction shall comply with this section within thirty (30) days from the day he brinas 45 such doa or cat into the City. if such doa or cat is to be kept in the City more than thirty 46 (30) days. 47 111,i 48 (c) The vaccination or inoculation required bv this section shall be administered 49 bv or under the supervision of a licensed veterinarian. When so administered. the 50 veterinarian shall issue to the owner of the doa or cat a taa and a certificate of rabies 51 inoculation or vaccination. properlv executed and siqned bv the veterinarian. certifvinq 52 that the dOQ or cat in Question has been inoculated or vaccinated in accordance with the 53 provisions of this section. Such taQ shall be firmlv attached to the doa's or cat's collar 54 and shall be worn at times when the dOQ or cat is not on the property of the owner or 55 custodian of the doa or cat. The owner or custodian of the doa or cat shall furnish. 56 within a reasonable period of time. upon request of any Animal Control Officer. law 57 enforcement officer or official of the department of health. the certificate of vaccination 58 for such doa or cat. 59 60 Sec. 5-201. Report of existence of rabid animals. 61 62 Every person havina knowledQe of the existence of an animal apparentlv afflicted 63 with rabies shall report immediatelv to the local health department the existence of such 64 animal. the place where seen. the owner's name. if known. and the symptoms 65 suaQestina rabies. 66 67 Sec. 5-202. Report of animal bites of human beinas. 68 69 All animal bites of human beinas shall be reported to the department of public 70 health within twenty-four (24) hours after occurrence. Such report shall include the 71 name and post office address of the person bitten. the owner of the bitina animal and a 72 reasonable description of the animal. The responsibility of so reportina is mutuallv 73 charaed to attendina physicians. veterinarians. owners of the bitinQ animals and 74 persons bitten and any other persons who may have knowledae of such fact. 75 76 Sec. 5-203. Emeraencv ordinance. 77 78 Where there is sufficient reason to believe a rabid animal is at larae City Council 79 may pass an emeraencv ordinance as provided in Code of Virginia & 3.2-6522. 80 81 Sec. 5-204. Confinement or destruction of doas. cats and other animals showina 82 sians of or suspected of havina rabies. 83 84 Anv doa. cat or other animal found within the City showina active sians of rabies 85 or suspected of havina rabies shall be confined under competent observation for such 86 time as may be necessary to determine a diagnosis. If confinement is impossible or 87 impracticable. such doa. cat or other animal shall be euthanized bv one of the methods 88 authorized in Code of Virainia & 3.2-6546. 89 90 Sec. 5-205. Destruction or confinement of doa or cat bitten bv rabid animal. 91 92 (a) Anv doa or cat. for which no proof of current rabies vaccination is available 93 and that is exposed to rabies bv an animal believed to be afflicted with rabies. shall be 94 confined in a pound. kennel or enclosure approved bv the health department for a 95 period not to exceed six (6) months at the expense of the owner. An inactivated rabies 96 vaccine may be administered at the beginning of the confinement. A rabies vaccination 97 shall be administered prior to release. If this is not feasible. the dog or cat shall be 98 humanelveuthanized. 99 100 (b) Anv dog or cat. for which there is proof of a valid rabies vaccination and that 101 is exposed to rabies bv an animal believed to be afflicted with rabies shall be 102 revaccinated immediatelv following the bite and shall be confined to the premises of the 103 owner, or other site as may be approved bv the health department. for a period of 45 104 days. 105 106 (c) When any animals. other than a dog or cat. is exposed to rabies bv an animal 107 believed to be afflicted with rabies. that newly exposed animal shall be confined at the 108 discretion of and in a manner approved bv the health director. or euthanized. 109 110 Sec. 5-206. Confinement or destruction of animal which has bitten person. 111 112 @} At the discretion of the director of public health. any animal which has 113 bitten a person shall be confined under competent observation for ten (10) days. unless 114 the animal develops active symptoms of rabies or expires before that time: provided. 115 that a seriouslv iniured or sick animal may be humanelv euthanized and its head sent to 116 the health department for evaluation. 117 118 !Q) At the discretion of the director of health. any potentiallv rabid animal. 119 other than a dog or cat. that exposes or may have exposed a person to rabies shall be 120 confined in a manner approved bv the health department or humanely euthanized and 121 its head sent to the health department for evaluation. 122 123 Sec. 5-207. Concealina or harborina animal to prevent its destruction or 124 confinement under Article. 125 126 It shall be unlawful for any person to conceal or harbor any doa. cat or other 127 animal to keep the same from beina destroyed or confined in accord with this article. 128 129 ARTICLE III. LOCAL LICENSES 130 131 Sec. 5-300. License reauired. 132 133 It shall be unlawful for any person to own a dog or cat four (4) months old or 134 older in this City. unless such dog or cat is licensed under the provisions of this article. 135 136 Sec. 5-301. Application: applicant to be City resident. 137 138 (a) Anv person may obtain a one-. two-, or three-year City dog or cat license bv 139 making oral or written application to the city treasurer or an appointed agent. 140 accompanied bv the amount of the license tax and the evidence of vaccination reauired 141 bv section 5-306. : I :Ii 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 IIII (b) Additionallv, anv person obtainina a rabies vaccination from a vet-aaent as provided in section 5-302 below mav obtain a one-. two-, or three-vear local license that runs concurrentlv with the vaccination administered bv pavina the tax as provided in section 5-303. The vet-aaent shall onlv have authoritv to license doas and cats of resident owners or custodians who reside within the Citv. (c) Anv person purchasina a doa or cat license shall provide residencv information to the citv treasurer or the appointed aaent. It shall be unlawful for anv person to make anv false statement in or present anv false evidence with an application submitted under this section. in order to secure a doa or cat license to which such person is not entitled. (d) A one-vear license taa shall be valid for UP to twelve (12) months from the date of issue, not to exceed the duration of the current rabies vaccination: a two-vear license taa shall be valid for UP to twentv-four (24) months from the date of issue. not to exceed the duration of the current rabies vaccination: and a three-vear license taQ shall be valid for UP to thirtv-six (36) months. not to exceed the duration of the current rabies vaccination. Sec. 5-302. Veterinarians as aDDointed aaents. (a) The citv treasurer mav appoint aQents for the collection of the license tax and the issuance of the license taQs. Anv veterinarian who vaccinates or supervises the vaccination of doas and cats aaainst rabies and is licensed to do business in Virainia Beach mav submit an application to the citv treasurer for such an aaent appointment. (b) The vet-aaent shall have authoritv to issue local license taQs on those occasions where he or she is presented with a current rabies certificate or when administerina rabies vaccinations to doas or cats of owners or custodians who reside within the City. The issued local taa shall run concurrentlv with the vaccination administered or in coniunction with the current certificate. The vet-aaent shall collect the required fee as outlined below in section 5-303. The fee and the required report shall be submitted to the citv treasurer as provided in the written aareement required in subsection (d) below. (c) For every one-. two-. or three-vear local license taa issued. the vet-aaent shall deduct one-dollar ($1.00) from the amount due to the city treasurer. (d) Each appointed vet-aaent shall aQree in writinQ to abide bv procedures and protocols established bv the citv treasurer. Anv vet-aaent who fails to follow the established procedures or protocols mav have his or her authoritv to collect the license taxes and issue the license taas revoked bv the citv treasurer. 186 Sec. 5-303. Tax imoosed. 187 188 (a) A license tax is hereby imposed on do!:!s and cats required to be licensed 189 under this article in the followin!:! non-refundable amounts: 190 191 (1) For each do!:! or cat. not spayed or not neutered: 192 1-vear ta!:! . . . $10.00 193 2-vear ta!:! . . . $20.00 194 3-vear ta!:! . . . $30.00 195 (2) For each do!:!. spayed or neutered: 196 1-vear taa . . . $LQQ 197 2-vear ta!:! . . . $14.00 198 3-vear ta!:! . . . $21.00 199 (3) For each cat. spayed or neutered: 200 1-yearta!:!: . . . $~ 201 2-year ta!:! . . . $10.00 202 3-year ta!:! . . . $15.00 203 (4) Kennel of fiye (5) to twenty (20) do!:!s. or fiye (5) to twenty (20) cats. 204 annually: . . . $35.00 205 (5) Kennel of twenty-one (21) or more do!:!s. or of twenty-one (21) or more 206 cats. annually: . . . $50.00 207 208 Pursuant to Vir!:!inia Code & 3.2-6500. a "kennel" is any establishment in which 209 five or more canines. felines. or hybrids of either are kept for the purpose of breedina. 210 huntin!:!. trainina. rentin!:!. buyin!:!. boardin!:!. sellin!:!. or showin!:!. The owner of a kennel 211 or cattery shall pay the kennel or cattery tax imposed above but shall not be required to 212 also pay the individual do!:! or cat license fees listed in subsections (1) and (2) for any 213 do!:! or cat that is owned by the owner of the kennel or cattery and that is housed within 214 the kennel or cattery. 215 216 (b) A Quarterly prorated license tax shall be imposed on any do!:! or cat owner 217 when he or she moves to Virainia Beach or purchases. adopts. or otherwise acquires a 218 do!:! or cat that has a current rabies vaccination. This prorated fee may only be imposed 219 by the staff at the office of the city treasurer. and no prorated fee may be offered by 220 appointed a!:!ents authorized by section 5-302. The prorated fee shall be based on date 221 of residence or date of purchase as compared to the date of rabies expiration. 222 Verification of these dates must be provided at time of Iicensin!:!. Quarterly prorated 223 license fee shall be determined based upon the amount of time remainina before the 224 rabies yaccination expires. The Quarterly prorated fee shall be as follows: 225 226 (1) Twenty-fiye (25) percent of the annual fee if at least one (1) month. but 227 less than four (4) months. remain before expiration of the yaccination. 228 (2) Fifty (50) percent of the annual fee if at least four (4) months. but less than 229 seven (7) months. remain before expiration of the vaccination. 230 (3) Seventy-fiye (75) percent of the annual fee if at least seyen (7) months. 231 but less than ten (10) months. remain before expiration of the vaccination. II ;11 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 111,1 (4) One hundred (100) percent of the annual fee if at least ten (10) months remain before expiration of vaccination. (c) A quarterlv prorated license fee shall be imposed on any doa or cat owner havina a valid rabies certificate issued between January 3. 2005 and September 30, 2007. The prorated fee shall be based on the time remainina on January 1, 2008 and the expiration of the rabies certificate. Quarterly prorated fees shall be imposed only on portions of years. and shall be imposed as follows: (1) Twenty-five (25) percent of the annual fee if at least one month. but less than four (4) months. remain before expiration of the vaccination. (2) Fifty (50) percent of the annual fee if at least four (4) months. but less than seven months. remain before expiration of the vaccination. (3) Seventy-five (75) percent of the annual fee if at least seven (7) months. but less than ten (10) months, remain before expiration of the vaccination. (4) One hundred (100) percent of the annual fee if at least ten (10) months remain before expiration of vaccination. (d) No license tax shall be levied under this section on any doq that is trained and serves as a auide doa for a blind person. that is trained and serves as a hearina doa for a deaf or hearina-impaired person. or that is trained and serves as a service doa for a mobilitv-impaired person. For the purposes of this subsection. a "hearina doa" is a doa trained to alert its owner. by touch. to sounds of danaer and sounds to which the owner should respond. and a "service doa" means a doa trained to accompany its owner for the purpose of carryinq items. retrievinq obiects. pullina a wheelchair or other such activities of service or support. (e) Any person who applies for a license taq for a neutered or spayed dOQ or cat shall present. at the time of application. an appropriate veterinarian's certification suitable to the city treasurer attestina to the neuterina or spayina of the doa or cat. If such certification is not so presented. the doa or cat shall be taxed the fee levied on unneutered and unspayed doas or cats. Sec. 5-304. When tax due and Davable. The license tax on doqs and cats shall be due and payable as follows: (1 ) When a doa or cat becomes four (4) months of aqe and receives its first rabies vaccination. (2) When a doa or cat receives a subsequent rabies vaccination. (3) Within thirty (30) days from the day a person brinas a doa or cat into the City from another iurisdiction. if such doa or cat is to be kept in the City more than thirty (30) days. 275 Sec. 5-305. Failure to pay tax when due. 276 277 It shall be unlawful for the owner of any doq or cat to fail to pay the tax imposed 278 bv this article when the same is due. Payment of such tax subsequent to a summons to 279 appear before a court for failure to do so within the time required shall not operate to 280 relieve such owner from the penalties provided for such failure. 281 282 Sec. 5-306. Issuance. composition and contents. 283 284 (a) Upon receipt of a proper application and the prescribed license tax. the city 285 treasurer or an appointed aaent shall issue a doa or cat license: provided that no such 286 license shall be issued for any doa or cat. unless there is presented to the city treasurer 287 or an appointed aaent evidence satisfactory to the treasurer or the appointed aaent that 288 the owner has complied with section 5-200 with respect to such doa or cat. 289 290 (b) Each doa or cat license shall consist of a license tax receipt and a metal taa. 291 Such receipt shall have recorded thereon the amount of the tax paid. the name and 292 address of the owner or custodian of the doq or cat. the date of payment. the period for 293 which the license is issued. the serial number of the taa and whether the license is for a 294 male or female. cat or doa. neutered/spayed or unaltered. or for a kennel. The metal tag 295 issued hereunder shall be stamped or otherwise permanentlv marked to show the name 296 of the City and shall bear a serial number. 297 298 Sec. 5-307. Preservation and exhibition of license receipt: taa to be worn by doa 299 or cat: exceptions. 300 301 (a) Doa or cat license taas shall be securelv fastened to a substantial collar by 302 the owner or custodian and worn bv such doq or cat. The owner of the doa or cat may 303 remove the collar and license taa required bv this section when a doa is enqaaed in 304 lawful huntina: when the doa or cat is competina in a doa or cat show: when the doa or 305 cat has a skin condition which would be exacerbated bv the wearina of a collar: when 306 the doa or cat is confined: or when the doa or cat is on the property of the owner or 307 custodian of the doq or cat. 308 309 (b) Anv doa or cat not wearina a collar bearina a license taa marked with the 310 name of the City shall prima facie be deemed to be unlicensed. and in any proceedinas 311 under this article. the burden of proof of the fact that such doa or cat has been licensed 312 or is otherwise not required to bear a taa at the time shall be on the owner of the doa or 313 cat. 314 315 Sec. 5-308. Removal of taa. 316 317 It shall be unlawful for a person except the owner or custodian. to remove a 318 leaallv acquired license taa from a doa or cat. II II I II 319 Sec. 5-309. Duplicate taas. 320 321 If a doa or cat license taa shall become lost. destroyed or stolen. the owner or 322 custodian shall at once apply to the city treasurer for a duplicate license taa. presentina 323 the oriainal license receipt. Upon affidavit of the owner or custodian before the city 324 treasurer that the oriainallicense taa has been lost. destroyed or stolen. the treasurer 325 shall issue a duplicate license tao. which the owner or custodian shall immediately affix 326 to the collar of the doa or cat. The treasurer shall endorse the number of the duplicate 327 and the date issued on the face of the orioinal license receipt. The fee for a duplicate 328 taa shall be one dollar ($1.00). 329 330 Sec. 5-310. Records and reports: disposition of unsold taas. 331 332 The city treasurer shall enter. in a doa or cat license sales record. the date of the 333 sale of doo or cat taas. includino sales to kennels and catteries. and the names and 334 addresses of persons. in alphabetical order. to whom sold and shall keep an account of 335 the amount of the license tax paid. At the close of the fiscal year. an annual report of 336 such sales shall be filed by the treasurer with the director of finance. who shall audit 337 such records. accounts and unsold doa or cat license taas. 338 339 ARTICLE IV. SEIZURE. IMPOUNDMENT AND DISPOSITION OF ANIMALS BY THE 340 BUREAU OF ANIMAL CONTROL: MANDATORY STERILIZATION. 341 342 Division 1. Animal Seizure. Impoundment and Disposition. 343 344 Sec. 5-400. General. 345 346 (a) The Bureau of Animal Control shall be operated in accordance with Chapter 347 65 of Title 3.2 of the Code of Virainia and with the reaulations issued by the Board of 348 Aariculture and Consumer Services. 349 350 (b) Any animal seized. impounded or disposed of by the Bureau of Animal 351 Control. shall be seized. impoundment or disposed of in accordance with the provisions 352 of Code of Virainia && 3.2-6546 (when found runnina at larae) and 3.2-6569 (when 353 found abandoned. cruelly treated. or sufferina from an apparent violation of this chapter 354 that has rendered the animal in such condition as to constitute a direct and immediate 355 threat to its life. safety or health.) 356 357 Sec. 5-401. Fees for the impoundment of animals. aenerally. 358 359 (a) The Bureau of Animal Control is hereby authorized to charae a fee of fifty 360 dollars ($50.00) for the first day an animal is impounded and two dollars ($2.00) per day 361 for each additional day or part thereof for the care of any animal impounded for any 362 reason. 363 364 (b) If a doa or cat impounded under this article is not claimed by its owner or 365 caretaker within five (5) days or within ten (10) days if the doa or cat has a collar. taa. 366 license tattoo. or other form of identification. it shall be disposed of in accordance with 367 the provisions of section 3.1-796.96 of the Code of Virainia. In the event any person 368 proposes to adopt such dOQ or cat. pursuant to such section. he shall pay a fee of 369 twenty-five dollars ($25.00) for doas: twenty dollars ($20.00) for cats: and fifteen dollars 370 ($15.00) for all other animals to cover the cost of transfer. seizure and veterinary care 371 for the animal. The person desirina to adopt the animal shall sian an adoption contract 372 aareeina to abide by the rules and reaulations of the bureau of animal control. Any 373 unaltered animal must be spayed or neutered by the bureau of animal control prior to 374 adoption for an additional fifty dollar ($50.00) fee to cover the cost of the procedure or 375 within thirty (30) days of the adoption. 376 377 Sec. 5-402. Recovery of veterinary fees. 378 379 Notwithstandina any other provision of this chapter. when any animal in the 380 custody of the Bureau of Animal Control is found iniured. disabled or diseased. the 381 superintendent of the Bureau of Animal Control may request the assistance of a 382 veterinarian to treat such animal. If the owner of the animal is found. the owner shall be 383 liable for all fees to the veterinarian for treatment provided. 384 385 Sec. 5-403. Sale of adopted animal prohibited. 386 387 It shall be unlawful for any person who acquires an animal from the Brueau of 388 Animal Control to sell the animal within a period of six months from the time the animal 389 is acquired from the facility. A violation of this ordinance shall constitute a Class 1 390 misdemeanor. 391 392 Division 2. Mandatory Sterilization. 393 394 Sec. 5-420. Sterilization of adopted doas and cats: enforcement: civil penaltv. 395 396 (a) Every new owner of a doa or cat adopted from the Bureau of Animal Control 397 shall cause to be sterilized the doC! or cat pursuant to the aareement required by this 398 division. 399 400 (b) A dOQ or cat shall not be released for adoption from the Bureau of Animal 401 Control unless: 402 403 (1) The animal has already been sterilized: or 404 (2) The individual adoptina the animal sians an aareement to have the animal 405 sterilized by a licensed veterinarian: (i) within 30 days of the adoption. if 406 the animal is sexually mature: or (ij) within 30 days after the animal 407 reaches six months of aae. if the animal is not sexually mature at the time 408 of adoption. 409 410 (c) The date by which a doC! or cat must be sterilized may extend for 30 days 411 upon presentation of a written report from a veterinarian statinC! that the life or health of 412 the adopted animal may be ieopardized by sterilization. In cases involvinC! extenuatina i II 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 II II circumstances. the veterinarian and the Bureau of Animal Control may neaotiate the terms of an extension of the date by which the animal must be sterilized. (d) Nothina in this section shall preclude the sterilization of a sexually immature dOQ or cat upon the written aareement of the veterinarian. the Bureau of Animal Control. and the new owner. (e) Upon the petition of any animal control officer. the General District Court may order the new owner to take any steps necessary to comply with the requirements of this division. This remedy shall be exclusive of and in addition to any civil penalty that may be imposed under this division. (f) Any person who violates subsection (a) or (b) of this section shall be subiect to a civil penalty not to exceed $50. 5-421. Sterilization aareement: confirmation: civil penaltv. (a) The sterilization aQreement required by section 5-420 shall. at a minimum. include the followinQ information: (1 ) The date of the aareement: (2) The names. addresses. and sianatures of the Bureau of Animal Control and the new owner: (3) A description of the doa or cat to be adopted; (4) The date by which the doa or cat is required to be sterilized: and (5) A statement printed in conspicuous. bold print. that sterilization of the doa or cat is required under this division: that a person who violates this division is subiect to a civil penalty: that the new owner may be compelled to comply with the provisions of this division: and that in the event of noncompliance with this division. any monetary deposit collected to ensure compliance may be forfeited. (b) Each new owner who sians a sterilization aareement shall. within seven days of the sterilization. cause to be delivered or mailed to the Bureau of Animal Control written confirmation sianed by the veterinarian who performed the sterilization. The confirmation shall brieflY describe the doa or cat: include the new owner's name and address: certify that the sterilization was performed: and specify the date of the procedure. The Bureau of Animal Control may charae and collect from the new owner a refundable deposit before releasina a doa or cat for adoption to ensure sterilization. (c) Any person who violates this section shall be subiect to a civil penalty not to exceed $150. 5-422. Notification concernina lost. stolen or dead doas or cats: civil penaltv. If an adopted dOQ or cat is lost or stolen or dies before the animal is sterilized and before the date by which the doa or cat is required to be sterilized. the new owner shall. 460 within seven davs of the animal's disappearance or death. notify the Bureau of Animal 461 Control of the animal's disappearance or death. Anv person who violates this section 462 shall be subiect to a civil penaltv not to exceed $25. 463 464 5-423. Exemotions. 465 466 This article shall not applv to: 467 468 (1) An owner reclaimino his doo or cat from a Bureau of Animal Control: or 469 (2) The Bureau of Animal Control when an animal is disposed of bv sale or 470 oift to a federal aoencv. state-supported institution. aoencv of the 471 Commonwealth. aaencv of another state. or licensed federal dealer havino 472 its principal place of business located within the Commonwealth: or 473 (3) An animal transferred to another Bureau of Animal Control. 474 475 5-424. Actions for civil oenalties. 476 477 Anv animal control officer shall be entitled to brino a civil action for anv violation 478 of this division that is subiect to a civil penaltv. Anv civil penaltv assessed pursuant to 479 this division shall be paid into the treasury of the Citv and used for the purpose of 480 defravino the costs of the Bureau of Animal Control. includino efforts to promote 481 sterilization of cats and doos. 482 483 ARTICLE V. ANIMAL WELFARE 484 485 Division 1. Cruelty to Animals. 486 487 5-500. Cruelty to animals: oenalty. 488 489 (a) Anv oerson who: (j) overrides. overdrives. overloads. tortures. ill-treats. 490 abandons. willfullv inflicts inhumane iniury or pain not connected with bona fide scientific 491 or medical experimentation. or cruellv or unnecessarilv beats. maims. mutilates. or kills 492 anv animal. whether belonoino to himself or another: (ii) deprives anv animal of 493 necessary food. drink. shelter or emeroencv veterinary treatment: (iii) sores anv eauine 494 for anv purpose or administers druos or medications to alter or mask such sorino for the 495 purpose of sale. show. or exhibition of anv kind. unless such administration of druos or 496 medications is within the context of a veterinary client-patient relationship and solelv for 497 therapeutic purposes: (iv) willfullv sets on foot. instioates. enoaoes in. or in anv wav 498 furthers anv act of crueltv to anv animal: (v) carries or causes to be carried bv any 499 vehicle. vessel or otherwise anv animal in a cruel. brutal. or inhumane manner. so as to 500 produce torture or unnecessary sufferina: or (vi) causes anv of the above thinos. or 501 beino the owner of such animal permits such acts to be done bv another is ouiltv of a 502 Class 1 misdemeanor. 503 504 In addition to the penalties provided in this subsection. the court mav. in its 505 discretion. reauire anv person convicted of a violation of this subsection to attend an 506 anoer manaoement or other appropriate treatment prooram or obtain psvchiatric or II 507 psycholoaical counselina. The court may impose the costs of such a proaram or 508 counselina upon the person convicted. 509 510 (b) Nothina in this section shall be construed to prohibit the followina: 511 512 (1) the dehornina of cattle conducted in a reasonable and customary manner: 513 (2) authorized wildlife manaaement activities or hunting. fishina or trappina as 514 reaulated by the Code of Virainia: or 515 (3) to farmina activities as provided by the Code of Virginia or reaulations 516 adopted thereunder. 517 518 (c) It is unlawful for any person to kill a domestic doa or cat for the puroose of 519 obtaining the hide. fur or pelt of the doa or cat. A first-time violation of this subsection is 520 a Class 1 misdemeanor. 521 522 (d) Any person convicted of violatina this section may be prohibited by the court 523 from possession or ownership of companion animals. 524 525 Sec. 5-501. AdeQuate space for animals: time restriction on tetherina doas. 526 527 (a) It shall be unlawful to fail to provide any animal with adequate space. 528 "Adequate space" means sufficient space to allow each animal to (j) easily stand. sit. lie. 529 turn about. and make all other normal body movements in a comfortable. normal 530 position for the animal and lii) interact safely with other animals in the enclosure. 531 532 lb) When a doa is tethered. "adequate space" means a tether that permits the 533 above actions and is appropriate to the aae and size of the doa. The tether must be 534 attached to the doa by a properly applied collar. halter. or harness configured so as to 535 protect the doa from injury and prevent the doa or the tether from becoming entanaled 536 with other objects or doas. or from extendina over an object or edae that could result in 537 the stranaulation or injury of the doa. Furthermore. the tether must be at least three (3) 538 times the length of the doa. as measured from the tip of its nose to the base of its tail. 539 except when the doa is beina walked on a leash or is attached by a tether to a lead line. 540 When freedom of movement would endanaer the dOQ. temporarily and appropriately 541 restrictina movement of the doa accordina to professionally accepted standards is 542 considered to be provision of adequate space. 543 544 (c) It shall be unlawful for any doa to be tethered for more than three (3) hours. 545 cumulatively in any twenty-four-hour period. 546 547 Division 2. Danaerous and Vicious Doas. 548 549 5-520. Definitions. as used in this Division. 550 551 (a) "Danaerous doa" means a canine or canine crossbreed that has bitten. 552 attacked. or inflicted injury on a person or companion animal that is a dOQ or cat. or 553 killed a companion animal that is a doa or cat. When a doa attacks or bites a companion 554 animal that is a doa or cat. the attackinQ or bitinQ dOQ shall not be deemed danaerous: 555 0) if no serious physical iniury as determined bY a licensed veterinarian has occurred to 556 the doa or cat as a result of the attack or bite: Oi) if both animals are owned by the same 557 person: Oii) if such attack occurs on the property of the attackina or bitino doo's owner or 558 custodian: or Ov) for other oood cause as determined by the court. No doo shall be 559 found to be a danaerous doo as a result of bitina. attackina, or inflictina iniury on a doa 560 or cat while engaaed with an owner or custodian as part of lawful huntino or 561 participatina in an oraanized, lawful dOQ handlina event. 562 563 (b) "Vicious dog" means a canine or canine crossbreed that has: (i) killed a 564 person: OJ) inflicted serious iniury to a person. includino multiple bites. serious 565 disfiaurement. serious impairment of health. or serious impairment of a bodily function: 566 or (Hi) continued to exhibit the behavior that resulted in a orevious findino bY a court or. 567 on or before July 1. 2006. by an animal control officer as authorized by ordinance. that it 568 is a danaerous doa, provided that its owner has been given notice of that findino. 569 570 5-521. Enforcement procedures. 571 572 Any law-enforcement officer or animal control officer who has reason to believe 573 that a canine or canine crossbreed within the City is a danoerous doo or vicious doo 574 shall applY to a maaistrate for the issuance of a summons reauirina the owner or 575 custodian. if known. to aopear before the General District Court at a specified time. The 576 summons shall advise the owner of the nature of the proceedina and the matters at 577 issue. If a law-enforcement officer successfully makes an application for the issuance of 578 a summons, he shall contact the Bureau of Animal Control and inform them of the 579 location of the doa and the relevant facts pertainina to his belief that the dog is 580 dangerous or vicious. An animal control officer shall confine the animal until such time 581 as evidence shall be heard and a verdict rendered. If the animal control officer 582 determines that the owner or custodian can confine the animal in a manner that protects 583 the public safety. he may permit the owner or custodian to confine the animal until such 584 time as evidence shall be heard and a verdict rendered. The court. throuah its contempt 585 powers. may compel the owner. custodian or harborer of the animal to produce the 586 animal. If. after hearina the evidence. the court finds that the animal is a dangerous doa. 587 the court shall order the animal's owner to comply with the provisions of this section. If. 588 after hearina the evidence, the court finds that the animal is a vicious doa. the court 589 shall order the animal euthanized in accordance with the provisions of the Code of 590 Virainia & 3.2-6562. The procedure for appeal and trial shall be the same as provided by 591 law for misdemeanors. Trial by iury shall be as provided in the Code of Virainia. Article 4 592 (& 19.2-260 et sea.) of Chapter 15 of Title 19.2. The Commonwealth shall be reauired to 593 prove its case beyond a reasonable doubt. 594 595 5-522. Exceptions to enforcement procedures. 596 597 No canine or canine crossbreed shall be found to be a danaerous doa or vicious 598 doa solely because it is a particular breed. nor is the ownership of a particular breed of 599 canine or canine crossbreed prohibited. No animal shall be found to be a danaerous 600 doa or vicious doa if the threat. iniury or damaae was sustained by a person who was: II 601 (i) committina. at the time. a crime upon the premises occupied by the animal's owner or 602 custodian: (ii) committina. at the time. a willful trespass upon the premises occupied by 603 the animal's owner or custodian: or (Hi) provokina. tormentina. or physically abusina the 604 animal. or can be shown to have repeatedly provoked. tormented, abused. or assaulted 605 the animal at other times. No police doa that was enaaaed in the performance of its 606 duties as such at the time of the acts complained of shall be found to be a danaerous 607 doa or a vicious doa. No animal that. at the time of the acts complained of. was 608 respondina to pain or iniury. or was protectina itself. its kennel. its offsprina, a person. or 609 its owner's or custodian's property. shall be found to be a danaerous doa or a vicious 610 doa. 611 612 5-523. When doa owner is a minor. 613 614 If the owner of an animal found to be a danaerous doa is a minor, the custodial 615 parent or leaal auardian shall be responsible for complyina with all reauirements of this 616 section. 617 618 5-524. Reaistration procedures. 619 620 (a) The owner of any animal found to be a danaerous doa shall. within 10 days of 621 such findina. obtain a danaerous doa reaistration certificate from the Bureau of Animal 622 Control for a fee of $50. in addition to other fees that may be authorized by law. The 623 Bureau of Animal Control shall also provide the owner with a uniformly desianed tag 624 that identifies the animal as a danaerous doa. The owner shall affix the taa to the 625 animal's collar and ensure that the animal wears the collar and taa at all times. All 626 certificates obtained pursuant to this subsection shall be renewed annually for the same 627 fee and in the same manner as the initial certificate was obtained. The animal control 628 officer shall provide a coPY of the danaerous doa reaistration certificate and verification 629 of compliance to the State Veterinarian. 630 631 (b) All danaerous doa registration certificates or renewals thereof reauired to be 632 obtained under this section shall only be issued to persons 18 years of aae or older who 633 present satisfactory evidence: (j) of the animal's current rabies vaccination. if applicable: 634 (ij) that the animal has been neutered or spayed; and Wi} that the animal is and will be 635 confined in a proper enclosure or is and will be confined inside the owner's residence or 636 is and will be muzzled and confined in the owner's fenced-in yard until the proper 637 enclosure is constructed. In addition. owners who apply for certificates or renewals 638 thereof under this section shall not be issued a certificate or renewal thereof unless they 639 present satisfactory evidence that: (i) their residence is and will continue to be posted 640 with clearly visible sians warnina both minors and adults of the presence of a danaerous 641 doa on the property: and (ij) the animal has been permanently identified by means of a 642 tattoo on the inside thiah or by electronic implantation. All certificates or renewals 643 thereof reauired to be obtained under this section shall only be issued to persons who 644 present satisfactory evidence that the owner has liability insurance coveraae. of at least 645 $100.000. that covers animal bites. The owner may obtain and maintain a bond in 646 surety. in lieu of liability insurance. to the value of at least $100.000. 647 648 (c) The owner of any doa found to be danQerous shall reQister the animal with the 649 Commonwealth of VirQinia DanQerous Doq ReQistrv. as established by the Code of 650 VirQinia ~ 3.2-6542. within 45 days of such a findinQ bY any appropriate court. The 651 owner shall also cause the Bureau of Animal Control to be promptly notified of: (i) the 652 names. addresses. and telephone numbers of all owners: (ij) all of the means necessary 653 to locate the owner and the dog at any time: (iii) any complaints or incidents of attack by 654 the dOQ upon any person or cat or dOQ; (iv) any claims made or lawsuits brouQht as a 655 result of any attack: (v) tattoo or chip identification information or both: (vi) proof of 656 insurance or surety bond: and (vii) the death of the dOQ. 657 658 5-525. Confinement of court-desianated danaerous doas. 659 660 While on the property of its owner. an animal found to be a danaerous dOQ shall 661 be confined indoors or in a securely enclosed and locked structure of sufficient height 662 and desian to prevent its escape or direct contact with or entry by minors. adults. or 663 other animals. The structure shall be desiQned to provide the animal with shelter from 664 the elements of nature. When off its owner's property. an animal found to be a 665 danQerous dOQ shall be kept on a leash and muzzled in such a manner as not to cause 666 iniurv to the animal or interfere with the animal's vision or respiration. but so as to 667 prevent it from bitinQ a person or another animal. 668 669 5-526. Danaerous doa status notification reauirements. 670 671 After an animal has been found to be a danQerous dOQ. the animal's owner shall 672 immediately. upon leaminQ of same. cause the Bureau of Animal Control to be notified if 673 the animal: (i) is loose or unconfined; or (ij) bites a person or attacks another animal; or 674 Wj) is sold. Qiven away. or dies. Any owner of a danQerous dOQ who relocates to a new 675 address shall. within 10 days of relocatinQ. provide written notice to the appropriate local 676 animal control authority for the old address from which the animal has moved and the 677 new address to which the animal has been moved. 678 679 5-527. Penaltv. 680 681 (a) The owner of any animal that has been found to be a danQerous dOQ who 682 willfully fails to complY with the requirements of this section is Quilty of a Class 1 683 misdemeanor. 684 685 (b) Any owner or custodian of a canine or canine crossbreed or other animal is 686 Quilty of a: 687 688 (1) Class 2 misdemeanor if the canine or canine crossbreed previously 689 declared a danaerous dOQ pursuant to this section. when such declaration 690 arose out of a separate and distinct incident. attacks and iniures or kills a 691 cat or dog that is a companion animal belonaina to another person: or 692 (2) Class 1 misdemeanor if the canine or canine crossbreed previously 693 declared a danQerous dOQ pursuant to this section. when such declaration II 694 arose out of a separate and distinct incident. bites a human beinq or 695 attacks a human beinq causinQ bodily injury. 696 697 (c) The provisions of this subsection shall not apply to any animal that. at the 698 time of the acts complained of. was respondine to pain or injury. or was protectinq itself. 699 its kennel. its offsprinq. a person. or its owner's or custodian's property. or when the 700 animal is a police doe that is enqaQed in the performance of its duties at the time of the 701 attack. 702 703 Division 3. Prohibited Acts. 704 705 Sec. 5-530. Doas or cats runnina at larae. 706 707 (a) Any person owninq. keepinq or harborine any doa or cat within the City that 708 is found runninQ at larqe shall be Quilty of a Class 4 misdemeanor. For the purposes of 709 the section. a dOQ shall be deemed to run at laroe while roamina. runnina or self huntinq 710 off the property of its owner or custodian. 711 712 (b) It shall be the responsibility of any person ownina. keepinq or harborinq any 713 doq or cat within the City to keep such dOQ or cat confined to the premises of such 714 person. The words "confined to the premises" shall be construed to mean that such dog 715 or cat shall be kept on the owner's or custodian's premises. unless in the custody of a 716 responsible person. 717 718 (c) This section shall not apply where the owner. custodian or trainer has 719 released a dOQ for the express purpose of huntinQ qame in an area zoned aQricultural. 720 where it is lawful to hunt. or competinQ in field trials or traininq, and such dOQ becomes 721 temporarily out of control of such owner. custodian or trainer or is returninq to the place 722 of release after the hunt or chase. If such dOQ is observed violatinq any other section of 723 this Code. or committina an unlawful act under state law. it shall become subject to 724 impoundment; and the owner. custodian or trainer shall be liable for all fines as 725 prescribed by law. 726 727 Sec. 5-531. Keepina doas under restraint: leash law. 728 729 (a) It shall be unlawful for the owner of any doq to permit the doq to qO upon 730 any public street. sidewalk or rieht-of-way. excludine the public beaches of the City. 731 unless it is kept secured by a leash or lead or other means of restraint not harmful or 732 injurious to the doe and under the control of a responsible person capable of physically 733 restrainina the dOQ. 734 735 (b) Any person who does not restrain his doa, in accordance with this section. 736 whether such person be the owner or custodian of such doq. shall be quilty of a Class 4 737 misdemeanor. The animal control officer or police officer may issue a summons to any 738 person he finds in violation of this section. 739 740 (c) Exceptions. 741 742 (1) This section shall not apply to any person who uses a dog under his direct 743 supervision while lawfully hunting, while engaged in a supervised formal 744 obedience training class or show. or during formally sanctioned field trials. 745 (2) This section shall not apply to any person south of the trace line beginning 746 at the intersection of Elbow Road and the Chesapeake-Virginia Beach City 747 boundary line: thence northeastwardly along Elbow Road to Salem Road: 748 thence southeastwardly along Salem Road to North Landstown Road: 749 thence northeastwardlY along Landstown Road to Princess Anne Road: 750 thence southeastwardly along Princess Anne Road to Sandbridge Road: 751 thence eastwardlY along Sand bridge Road to its intersection with the 752 Atlantic Ocean: with the exception of the subdivisions of Bellwood Estates. 753 Foxfire and Three Oaks and the communities of Sand bridge and Lag 0 754 Mar. and any other areas zoned for residential use. 755 756 Sec. 5-532. Barkina doas. 757 758 (a) It shall be unlawful for any person to keep a dog without exercising proper 759 care and control of such doa to prevent it from disturbing the peace of others by barking 760 in a loud. continuous or untimely manner. Any person. whether as owner. tenant. 761 occupant. lessee or otherwise. in charge or control of the property where such dog is 762 kept. or the owner of such doa. shall be responsible for exercising control of such dOQ 763 under this section. 764 765 (b) It shall be the duty of any animal control officer or police officer. who may 766 find any dOQ disturbing the peace of others by barking in a loud. continuous or untimely 767 manner. to advise the owner of such dOQ. or the person in charge or control of the 768 property where such dOQ is kept. to exercise proper control and care of such dOQ to 769 prevent it from barkinQ in such manner. If such owner or person refuses to cooperate 770 with the police officer or animal control officer. or is unable to prevent such dotl from 771 barking in such manner. or if the animal control officer or police officer is unable to 772 locate any person on the property where such dog is kept. it shall be the duty of the 773 animal control officer or police officer to take such dog into possession. The 774 impoundment provisions of & 5-400 of this Chapter shall be applicable to and followed 775 by animal control officers. the Bureau of Animal Control and police officers upon taking 776 possession of any dog under this section. 777 778 (c) The animal control officer or police officer may issue a summons to any 779 person he finds in violation of this section. 780 781 Sec. 5-533. Nuisance animals aenerallv. 782 783 (a) No owner shall fail to exercise proper care and control of his animals to 784 prevent them from becomina a public nuisance. Molesting a passerby. attacking without 785 seriously iniuring any person without provocation on two (2) or more occasions. chasing 786 vehicles. habitually attacking but not seriously iniuring other domestic animals. 787 trespassing upon school arounds. or trespassing upon private property in such manner II 788 as to damaoe property shall be deemed a nuisance. Three (3) or more violations of City 789 Code ~ 5.1- 530 in any twelve-month period shall also be deemed a nuisance. 790 791 (b) Any person owning or havina in his possession or under his control any 792 animal constitutina a nuisance shall be summoned before the General District Court of 793 the City to show cause why such animal should not be confined. disposed of or 794 removed or the nuisance otherwise abated and. upon proof that the animal constitutes a 795 public nuisance. the animal in Question shall. by order of the General District Court of 796 the City. either be confined. removed from the City. or the nuisance activity otherwise 797 abated as such court shall order. It shall be unlawful and shall constitute contempt of 798 court for any person to harbor or conceal any animal which has been ordered disposed 799 of or removed by the General District Court. or to fail to confine or restrain an animal 800 when such an order has been entered by the court. 801 802 (c) Any person who owns any doo. cat or other animal that has been adiudoed 803 a nuisance pursuant to this section by the General District Court and who appeals that 804 decision to the Circuit Court shall be responsible for the fees connected with the 805 impounding of the animal by the Bureau of Animal Control. If on appeal the Circuit Court 806 determines that the doa. cat or other animal is not a nuisance. no such fees for the 807 impoundina of the animal shall be imposed. 808 809 Sec. 5-534. Allowing dogs to urinate or defecate on public or private property. 810 811 It shall be unlawful for any owner or person in control of a dOQ to: 812 813 (1) Knowingly or willfully allow his/her doo to urinate or defecate on the 814 private property of other persons without their consent or that of the 815 authorized aoent of the one havinQ control of the premises. 816 (2) Knowingly or willfully allow his/her dOQ to urinate or defecate on public 817 property. except that defecation by a dOQ on public property shall not 818 constitute a violation of this section if the owner of the doo immediately 819 removes the material defected and disposes of it in a safe and sanitary 820 manne~ 821 822 Sec. 5-535. Dogs riding in motor vehicles. 823 824 (a) It shall be unlawful and a Class 4 misdemeanor for any person who owns or 825 has control of any doo to allow such dOQ to ride in any motor vehicle in any portion 826 thereof that is open in such a manner as to permit such doa to iump out of the vehicle or 827 to be thrown therefrom by acceleration of. stoppina of. or accident involvina. such 828 vehicle. includino. but not limited to. the open bed of a truck. the interior of a convertible 829 vehicle with the top down or removed. the rear storaae portion of a station waaon with 830 the tai/aate open. and the trunk or hatchback portion of any vehicle with the trunk or 831 hatchback open. For purposes of this section. the operator of a motor vehicle shall be 832 deemed to have control of any doo ridino therein. 833 834 (b) The provisions of subsection (a) above shall not apply to: 835 836 (1 ) Anv person who owns or has control of any doa and who allows such dOQ 837 to ride in the prohibited portion of any motor vehicle if such doa is confined 838 to a caae of adeauate construction and desian to prevent its escape 839 therefrom: and 840 (2) Anv portion of a motor vehicle which is fullv enclosed except for open 841 windows. 842 843 Sec. 5-536. Leavina disable or dead animal in road, or allowina dead animal to 844 remain unburied. 845 846 (a) No person shall cast any dead animal into a road or knowinalv permit any 847 dead animal to remain unburied upon his property when offensive to the public or. 848 havina in custody any maimed. diseased. disable or infir animal. leave it to lie or be in a 849 street. road or public place. 850 851 (b) A violation of this section shall constitute a Class 3 misdemeanor. 852 853 Sec.5-537. Disposition of dead animals aenerallv. 854 855 @l The owner of any companion animal shall forthwith cremate. bury. or 856 sanitarilv dispose of the animal upon its death. If after notice. any owner fails to do so. 857 the Bureau of Animal Control shall bury or cremate the companion animal and may 858 recover costs as indicated below for this service. 859 860 {Ql When the owner of any other animal or fowl which has died knows of such 861 death. such owner shall forthwith have the body cremated or buried. If the owner fails 862 to do so. any iudQe of a Qeneral district court. after notice to the owner if he can be 863 ascertained. shall cause any such dead animal or fowl to be cremated or buried by a 864 person or entity desianated for that purpose. Such a person or entitv shall be entitled to 865 recover of the owner of every such animal or fowl that is cremated or buried the actual 866 cost of the cremation or burial and a reasonable fee to be recovered. free from all 867 exemptions in favor of such owner. 868 869 (c) The followinQ fee. free of all exemptions in favor of such owner and pavable 870 to the City treasurer are authorized when such cremation services are provided bv the 871 Bureau of Animal Control. The sum of twenty dollars ($20.00) for any small animal. 872 such as a sheep. doa. cat or Qoat. 873 874 (d) Nothina in this section shall be deemed to reQuire the burial or cremation of 875 the whole or portions of any animal or fowl which is to be used for food or in any 876 commercial manner. 877 878 Sec. 5-538. Usina animals as prize or inducement. 879 880 No person shall Qive away any live vertebrate animal as a prize for or as an 881 inducement to enter any contest. a Qame or other competition or as an inducement to II 882 enter a place of amusement or offer such vertebrate as an incentive to enter into any 883 business aqreement. whereby the offer was for the purpose of attractinq trade. 884 885 Sec. 5-539. Medical research. 886 887 No person shall use or accept for the purpose of medical research or 888 experimentation any animal bearina a taa. license. or tattooed identification. unless the 889 individual who owns such animal consents thereto in writina. 890 891 Sec. 5-540. Intentional interference with a guide or leader dog: penalty. 892 893 (a) It is unlawful for a person to. without iust cause. willfully impede or interfere 894 with the duties performed by a doa if the person knows or has reason to believe the dog 895 is a auide or leader doa. A violation of this subsection is a Class 3 misdemeanor. 896 897 (b) It is unlawful for a person to. without iust cause. willfully iniure a dog if the 898 person knows or has reason to believe the doa is a auide or leader doa. A violation of 899 this subsection is a Class 1 misdemeanor. 900 901 (c) As used in this section a "guide or leader doa" means a doo that: 902 903 (1) serves as a doa auide for a blind person as defined in Code of Virainia & 904 51.5-60 or for a person with a visual disability; 905 (2) serves as a listener for a deaf or hard-of-hearina person as defined in 906 Code of Virainia & 51.5-111 ; or 907 (3) provides support or assistance for a physically disabled or handicapped 908 person. 909 910 Sec. 5-541. Disease prevention. 911 912 It shall be unlawful for any owner of any doa or cat with a contaoious or infectious 913 disease to permit such doa or cat to stray from the owner's premises if such disease is 914 known to the owner. 915 916 Sec. 5-542. Sellina aarments containina dog or cat fur prohibited: penalty. 917 918 It is unlawful for any person to sell a aarment containino the hide, fur. or pelt that 919 he knows to be that of a domestic dog or cat. A violation of this section is punishable by 920 a fine of not more than $10.000. 921 922 Sec. 5-543. General restriction on keeping of livestock and other animals. 923 924 No person shall keep horses. cows, aoats. sheep. swine or other livestock or 925 other animals within the City except in areas desianated for aaricultural purposes or 926 parcels specially desianated by the council for the keepina of such animals. This section 927 shall not be construed to apply to: 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 973 (1) Companion animals as defined in the Code of VirQinia ~ 3.2-6500 when such animals are kept as household pets on the premises of the owner; (2) The operation of kennels. when authorized by appropriate provisions of this Code: or (3) The keepinQ of household pets for sale at retail. where such keeping is authorized pursuant to law. Sec. 5-544. Livestock running at large. It shall be unlawful for any person to allow horses. cows. Qoats. sheep. swine or other livestock to run at larQe in the City. Sec. 5-545. Fowl running at larae. Fowl may be kept only in those areas zoned for aQricultural use. It shall be unlawful for any person to allow any fowl to run at large on any street or any unenclosed lot or Qround within the City. Sec. 5-546. Homing or racing pigeons. NotwithstandinQ the provisions of sections 5-545. it shall be unlawful for any member of a recoanized national piaeon association. which supplies pigeons to the armed forces of the United States in times of emergency. to house or keep in any district. and allow to fly for exercise within the corporate limits. homing or racing pigeons which are suitable and the type used as messenQers in time of war and civil defense and which are banded with numbered leQ bands showinQ the same to be registered with such associations. provided. such piQeons are not kept so as to constitute a nuisance or create a hazard to public health. Sec. 5-547. Feedina wildlife on publicly-owned property. (a) It shall be unlawful for any person to feed any wildlife on publicly-owned property within the City: provided. however. that no violation shall be deemed to occur unless signs (living notice of the prohibition set forth in this section are posted in a conspicuous location upon the property and a law enforcement officer has provided a prior warning that continued feeding of wildlife will result in a violation of this section. (b) For purpose of this section: (1 ) "Wildlife" shall include all species of wild animals. wild birds. freshwater fish and all domestic. non-native. native or miQratory waterfowl. (2) "Feed" shall mean to aive. place. expose. deposit. distribute or scatter any edible material with the intention that such material be consumed by wildlife. II 974 (c) A violation of this section shall constitute a civil infraction punishable by a 975 fine in an amount not to exceed twenty-five dollars ($25.00) for a first violation and fifty 976 dollars ($50.00) for each successive violation. 977 978 ARTICLE VI. BIRD SANCTUARIES 979 980 Sec. 5-600. Established: purpose. 981 982 There is hereby established as a sanctuary for the protection of all birds all of 983 that area north and west of the trace of the line beainnina at the intersection of North 984 Landina Road and the Chesapeake-Virainia Beach City boundary line: thence 985 northward alona North Landina Road to Indian River Road: thence eastward alona 986 Indian River Road to New Bridae Road: thence northeastward alona New Bridae road to 987 Sandbridae Road. thence eastward alona Sandbridae Road to its intersection with the 988 Atlantic Ocean: and all land north of False Cape State Park and east of Shipps Bay and 989 Hells Point Creek. 990 991 Sec. 5-601. Sians. 992 993 Sians statina that the area desianated by section 5-600 is a bird sanctuary may 994 be erected in such area; provided. that the type of sians and location thereof are first 995 approved by the city manaaer. 996 997 Sec. 5-602. Killina or iniurina birds. etc. 998 999 It shall be unlawful for any person to kill or iniure any bird or to destroy the nests 1000 or eaas of any bird. except starlinas. in the bird sanctuary established by section 5-600: 1001 provided that such restrictions shall not prevent the lawful huntina of aame birds under 1002 authority of a permit issued pursuant to the provisions of section 38-3 of this Code. 1003 1004 ARTICLE VII. WilD HORSES 1005 1006 Sec. 5-700. Definitions. 1007 1008 The following words. terms. and phrases. when used in this article. shall have the 1009 meaninas respectively ascribed to them in this section. except where the context clearly 1010 indicates a different meanina: 1011 1012 Feral horse means a horse that is either not domesticated or has escaped 1013 domestication and become wild. 1014 Lure means to intentionally entice or tempt by feedina. pettina. or any other means 1015 intended to attract. 1016 Veterinarv hospital means any establishment maintained and operated by a licensed 1017 veterinarian for the diaanosis and treatment of diseases and iniuries of animals. 1018 Wild horse means (i) a feral horse. or (ii) a horse that is the proaeny of the Spanish 1019 mustana. a breed that was introduced to the Outer Banks of North Carolina as a 1020 domesticated animal by 16th century explorers but that. over time. has taken on the 1021 characteristics of a feral horse. 1022 1023 Sec. 5-701. Declaration of public purpose. 1024 1025 The provisions of this article are hereby found and declared to be in furtherance 1026 of the public health. safety and welfare. 1027 1028 Sec. 5-702. Penaltv for violation of article. 1029 1030 Unless otherwise provided. a violation of any provision of this article shall 1031 constitute a Class 4 misdemeanor. 1032 1033 Sec. 5-703. Lurina. removina. feedina. etc. 1034 1035 Except as otherwise provided in Section 5-707 of this article. it shall be unlawful 1036 for any person to (i) lure a wild horse into the City limits. (in remove a wild horse from 1037 the City limits. (iii) lure a wild horse to within fiftv (50) feet of himself/herself or any other 1038 person. or (iv) feed. ride or pet. or approach with the intent to feed. ride. or pet. a wild 1039 horse. 1040 1041 Sec. 5-704. Possessina or harborina. 1042 1043 It shall be unlawful for any person to possess. harbor. or confine a wild horse: 1044 provided. however. that the provisions of this section shall not be applicable to the 1045 confinement of a wild horse in a veterinary hospital for treatment by. or under the care 1046 and supervision of. a licensed veterinarian. 1047 1048 Sec. 5-705. Crueltv. 1049 1050 (a) It shall be unlawful for any person to molest. torture. torment. beat. mutilate. 1051 kill. wound. iniure. poison. or otherwise harm a wild horse. to subiect a wild horse to 1052 conditions which are detrimental to its health. safety or welfare. or to cause or procure 1053 another person to engage in any of the foreooing acts. 1054 1055 (b) The prohibitions set forth in subsection (a) of this section shall be deemed to 1056 include any act which causes uniustifiable pain. suffering. iniury or death to a wild horse. 1057 1058 (c) Nothing herein shall be construed to prohibit a law enforcement officer. an 1059 Animal Control officer or a licensed veterinarian from destroying a badly iniured or 1060 diseased wild horse in a humane manner. 1061 1062 (d) A violation of subsection (a) of this section shall constitute a Class 1 1063 misdemeanor. II 1064 Sec. 5-706. Notification to authorities of iniury to wild horse. 1065 1066 It shall be unlawful for any person who iniures a wild horse to fail to immediately 1067 notify the police department of such iniury. 1068 1069 Sec. 5-707. Assistance bv licensed veterinarians and other authorized persons. 1070 1071 Animal Control officers. law enforcement officers. licensed veterinarians. and 1072 duly authorized members of the Corolla Wild Horse Fund Committee of O.B.C.. Inc.. the 1073 Virainia Wild Horse Rescue. and the Sandbridae Civic Leaaue. are hereby authorized to 1074 assist in protectina the health. safety and welfare of wild horses and ensurina their safe 1075 return to the Outer Banks of Currituck County. and. when actina pursuant to the 1076 authority aranted herein. shall be exempt from the provisions of sections 5-703 and 5- 1077 704 of this article. 1078 1079 Sec. 5-708. Interference with enforcement of article. 1080 1081 It shall be unlawful for any person to interfere with the efforts of any Animal 1082 Control officer or law enforcement officer to enforce the provisions of this article. .or to 1083 interfere with the efforts of any person duly authorized. pursuant to section 5-707. to 1084 assist in protectina the health. safety and welfare of wild horses and ensuring their safe 1085 return to the Outer Banks of Currituck County. North Carolina. 1086 Adopted by the City Council of the City of Virginia Beach, Virginia, on this _ day of , 2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~ -~ CA 10864 R-10 February 5, 2009 fI.l == = ~ Cj ~ rn ~ ~ = U C . .... U ~ ...... o g fI.l == = ~ Cj ~ rJ'1 ~ ~ o U C . .... 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",-<.a..E o ~ -.o~r-.:t<;$ooQ) O"doto'U t- ~ t- ~ t- .€ ~~~o~~ II ~_.~ Q ,~,: "'1'\' 'Z: ~~. . , .~: \~ ., W ~ ~ ".~~fr ~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Repeal Section 33-131 of the City Code Pertaining to Newsracks MEETING DATE: March 24, 2009 . Background: On April 24, 2007, City Council adopted an ordinance that enacted City Code sections 33-120 through 33-131 ("Newsrack Ordinance"). The purpose of the Newsrack Ordinance was to establish standards for the placement, installation, maintenance and removal of newsracks in the public rights-of-way in the City's Resort Area. The Newsrack Ordinance was adopted to address public safety and aesthetic problems created by the uncontrolled proliferation of newsracks in the Resort Area. The Newsrack Ordinance was adopted on a trial basis and contains a sunset provision found in section 33-131 of the City Code. The sunset provision provides that the Newsrack Ordinance expires on May 1, 2009. . Considerations: The adoption of the Newsrack Ordinance has significantly improved safety and aesthetics in the Resort Area, namely by establishing fifty key distribution locations where newsracks may be installed. Throughout the past two years, City staff has worked closely with the publishers to ensure access to the locations and to address public safety concerns. The Newsrack Ordinance has been highly successful, and the Convention and Visitors Bureau believes that it will be beneficial to the City for the Newsrack Ordinance to remain in effect. For this reason, the Convention and Visitors Bureau is requesting that the sunset provision be deleted from the Newsrack Ordinance. . Public Information: Information will be disseminated to the public through the normal orocess involving the advertisement of the City Council agenda. . Resort Advisory Commission Recommendation: Adoption . Staff Recommendation: Approval . Attachments: Ordinance Submitting Department/Agency: Convention & Visitors Bureau fl.,-n /l-- City Manage~ '?- . ~IW'"L, rJll?' 1 AN ORDINANCE TO REPEAL SECTION 33- 2 131 OF THE CITY CODE PERTAINING TO 3 NEWSRACKS 4 5 SECTION REPEALED: 9 33-131 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section 33-131 of the Code of the City of Virginia Beach, Virginia, is hereby 11 repealed as follows: 12 13 Sec. 33 131. Sunset provision. 14 15 This seotion shall expire on May 1, 2000. 16 17 COMMENT: 18 19 This amendment deletes the sunset provision for the City's newsrack ordinance (City Code ~33-120 20 to ~33-130). 21 Adopted by the City Council of the City of Virginia Beach, Virginia, on this _ day of , 2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL. SUFFICIENCY: ~~~ City Attorney's Office CA11050 R-3 March 12,2009 'I 4~~ ~..""- ..~.~;~ ~~~'~?fJ ;,:.f~ "',.'~.''t.' ~5f : . h~ (\\~ ill ~~~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Approving and Adopting a Revised Policy Pertaining to Time Limits for Speakers at City Council Meetings MEETING DATE: March 24, 2009 . Background: On March 11, 2003, City Council adopted a policy entitled, "Time Limits for Speakers at City Council Meetings." The policy permitted public comment only on items included in Council's agenda. On September 14, 2004, City Council amended the policy to allow public comment on items that are not on Council's agenda. Public comment on non-agenda items is allowed at the end of the first formal session of each month. The current policy provides that an unlimited number of speakers may speak on any non-agenda topic. The current policy also places time limits on speakers. Currently, speakers on non-agenda items are allowed more time to speak than speakers on agenda items. . Considerations: The attached revised policy provides that speakers on both agenda and non-agenda items shall be subject to the same, three minute, time limits. (The revision retains, however, the provision whereby an applicant on a Planning Agenda item or a professional who represents persons opposed to the application are granted a longer period of time.) The attached revised policy also provides that no more than three speakers may speak on the same non-agenda item at the same meeting. The first three persons who register with the Clerk regarding a specific topic will be called to speak. The revision provides that the City Clerk shall inform any additional person who wants to speak on the same topic that he or she may submit written materials for distribution to City Council and also that the person is welcome to contact the Clerk's Office to register in advance to speak at the following month's meeting. Finally, the policy retains the provision whereby the presiding officer, with the consent of the other members of City Council, may extend the time limits set forth in the policy. . Public Information: This item will be advertised in the same manner as other agenda items. . Attachments: Ordinance, Revised Policy Requested by City Council 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 AN ORDINANCE APPROVING AND ADOPTING A REVISED POLICY PERTAINING TO TIME LIMITS FOR SPEAKERS AT CITY COUNCIL MEETINGS BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Council hereby approves and adopts the revised policy entitled ''Time limits for Speakers at City Council Meetings," dated March 24, 2009, which policy has been exhibited to the City Council, and a true copy of which is on file in the City Clerk's Office. Adopted by the City Council of Virginia Beach, Virginia on this March,2009. day of APPROVED AS TO LEGAL SUFFICIENCY: ~~ City Attorney's Office J;- CA11074 R-1 March 18, 2009 II City Council Policy Title: Time Limits for Speakers at City Council Meetings Date of Adoption: March n, 2003 Dates of Revisions: September 14, 2004 Page 1 of 3 March 27, 2007 February 12, 2008 March 24, 2009 1.0 Purpose and Need The purpose of this policy is to provide reasonable, workable time limits for speakers at City Council meetings. The need for such a policy was determined by the City Council at its retreat on February 18, 2003. The policy is intended to recognize and accommodate the mutual interests of persons desiring to speak at City Council meetings, the value to the City Council of pUblic comment, and the need for the City Council to conduct business in an orderly, expeditious manner. This policy shall not apply to the discussion of agenda items by members of the City Council during City Council meetings or to City Staff members acting in such capacity. 2.0 Time Limits 2.1 Planning Agenda Items (a) Planning Agenda items include rezonings, conditional zonings, conditional use permits, land use plan approvals, code and Comprehensive Plan amendments, nonconforming use resolutions, street closures and any other items for which a public hearing is required pursuant to Chapter 22 of Title 15 of the Virginia Code. (b) The applicant, or representative of the applicant (generally, an attorney, professional engineer or other profeSSional retained by the applicant) shall be allowed ten minutes for his or her initial presentation and an additional three minutes for rebuttal if any opponents of the application have spoken. (1) If there is more than one applicant (as, for example, when both the property owner and proposed developer are applicants) or if the applicant and representative both desire to speak, only one of them shall be allowed to speak for ten minutes. Upon request, however, the presiding officer may allow them to divide their time equally, so long as the total time of their initial presentation does not exceed ten minutes. (2) Speakers addressing the City Council in a representative capacity shall not be allowed additional time in which to speak on his or her own behalf. (c) All other persons speaking in support of the application shall be allowed three minutes, and shall not be entitled to speak in rebuttal of any opposition comments. (d) Opponents of an application shall be allowed three minutes each. In the event the opponents are represented by an attorney, engineer or other professional whose profession includes, as a customary part thereof, appearing before governmental bodies in a representative capacity, such representative Title: Time Limits for Speakers at City Council Meetings Date of Adoption: March n, 2003 Dates of Revisions: September 14,2004 Page 2 of 3 March 27, 2007 February 12, 2008 March 24, 2009 shall be allowed ten minutes. In such cases, persons represented shall be encouraged not to provide additional comments. (1) Only one speaker in opposition to the application shall be allowed ten minutes to speak. If there is more than one representative described in subsection (d), only one of them shall be allowed to speak for ten minutes. Upon request, however, the presiding officer may allow them to divide their time equally, so long as the total time of their presentation does not exceed ten minutes. (e) Opponents of an application shall not be entitled to address the City Council in rebuttal of any statements or other material provided to the City Council during the applicant's rebuttal. 2.2 Regular Agenda Items (a) Regular agenda items include all other agenda items at which public comment is allowed. (b) Each speaker, whether or not in a representative capacity, shall be allowed three minutes. 2.3 Comment on Non-Agenda Items (a) Time shall be allotted after the conclusion of the first formal session of each month for non- televised public comments on non-agenda items. (b) Each speaker, whether or not in a representative capacity, shall be allowed five (5) three (3) minutes. (c) No more than three (3) soeakers may soeak on the same non-aaenda tooic at the same meetina. The first three (3) soeakers who reaister with the City Clerk will be called to soeak. (d) If more than three (3) soeakers reauest an oooortunitv to soeak on the same non-aaenda tooic. the City Clerk shall deny the reauest and advise those oersons of the limits contained in this oolicv. The City Clerk shall also advise such oersons that comments may be submitted at writing at any time for distribution to City Council and that citizens are welcome to contact the City Clerk's to reaister in advance to soeak at the followina month's meetina. 3.0 Timekeeping; Written Material (a) The City Clerk shall keep time for each speaker in accordance with the provisions of Section 2, and shall verbally notify the speaker and presiding officer at the expiration of the time allowed for each speaker. (b) Written comments or other material may be tendered to the City Clerk by any person desiring to do so. 4.0 Modification of Time Limits (a) The presiding officer, with the consent of the City Council, may extend or reduce any of the time limits set forth in Section 2. II Title: Time Limits for Speakers at City Council Meetings Date of Adoption: March Il, 2003 Dates of Revisions: September 14,2004 Page 2 of 3 March 27, 2007 February 12, 2008 March 24, 2009 (b) The time limits for speakers set forth in Section 2 shall be exclusive of the time taken in responding to questions of members of the City Council. 5.0 Registration of Speakers Any person desiring to address the Council shall register with the City Clerk prior to the opening of the meeting. The inadvertent failure to do so shall not, however, disqualify any person from speaking. 6.0 Public Notice of Policy In accordance with City Code Section 2-41, this policy shall be included on the City's internet web site, posted outside of the City Council Chambers, and published in the City Council agenda for each regular meeting. CD !' . . ~ .0 ~ ;:~i~ gt! .~~ .~ f! ~~ .~ o.G e ~ ~ = i :-.~ g ~I=,! ~ ~t ~ ~ l;i]f f.: ~.e~ g~: llJ~ !=~~.!" .!,Q CIoU <> ~i~:si u.lII5 >0- :!i ~ ~ :::f!ei .:l!!~ ;!~;~ LB~. .ilt;~j i-~.'" ~i ~;~} OJ OJ :g ~ fa' Cl '5 OJ :a '" D OJ OJ :a Iii '" " ;; E " '" :a '" l!! ., e .;:) 0: <:: E 0 ~ '" (,) " ~ l:k: ~ '" c ~ '" ::{ ~ 1~ "' 0; e " Q) 1':1 0; :g D D 'E .( E c: OJ OJ 'E 10 ~ 1:: 5 2l Q) Q) ::J g ~ '" "' c: 0 c c. " '" c 0 '" <l r:: r:: '" 0 C5 0 e Ii ~ C5 c '" OJ ., '" '5' .. U N l!! E E u '" I :c l:k: l:k: l:k: (:l 0; Q. ~ " <( ,~ N ~ m l;; E E ~ u; Q. 0. Q. Q. Q. Q. <:: !it ~ 0- !l 0 "' ., ., "- "- "- "- U- n; W ~ ~ ~ "- u 1Il lQ u u u:: ~ Q. l:k: l:k: (( l:k: l:k: l:k: rn rn ~~IOS~~IID~'D~~~~~e;~. .~ E3 @ to 8 ..... o i'\ 1- :::, ~ '" "- ~ 1;5 w ~ c ~ u u :::> ~ rn fi' "- ffi ~ ] iJ 0) o o N c- '" 2 .c Q) IL (0 ~ c o "0 Q) C '1:: Q.. cri 5 .:2 ~ j'l a .,,; c: 21 ~ ~ o > OJ t= >- .c '0 e! '" l I I II I' $~&, ,{.;~,~ ~., ....;jq" r/l"'~J ':.....\'€, ~st .. i~~ ('\"""":" -," ,\\- W'P l{~~~~..:.~ ~~ -q.,r DlR ,,~1I ................... CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance declaring the property located at 2245 Reuben Street to be in excess of the City's needs and authorizing the City Manager to sell the property to Tammy McClenney. MEETING DATE: March 24, 2009 . Background: The City acquired 2245 Reuben Street (GPIN 2407-02-1616) as part of the APZ- 1/Clear Zone Use and Acquisition Plan. At the time of acquisition, the parcel was developed with a single-family home on a duplex lot. The APZ-1 Disposition Committee has evaluated the property and determined that the existing residence is in good condition and can be renovated rather than demolished. The property is in the interior of a stable residential neighborhood (Gatewood Park). A Request for Proposal (the "RFP") including this site was advertised for two consecutive Sundays in The Virginian-Pilot as well as on the City of Virginia Beach website. Tammy McClenney ("McClenney") was the only interested party and was selected to purchase the property for $85,000. . Considerations: The property will be occupied quickly, which will prevent vagrants and vandalism. McClenney will be required to renovate the existing structure with enhanced noise attenuation and also comply with City codes and City regulations. The proposed sale of the home to McClenney was recommended by the Oceana Land Use Conformity Committee. . Public Information: Advertisement of City Council Agenda . Recommendations: Approve the request and authorize the City Manager to execute all necessary documents to convey the property subject to the terms and conditions in the attached Summary of Terms. . Revenue restriction: The City funded the acquisition of the property through a partnership with the Commonwealth of Virginia, with each party contributing fifty percent (50%) of the funds. The proceeds from the sale will be deposited into the Oceana and ITA Conformity and Acquisition Project (CIP 9-060) and fifty percent (50%) of the proceeds will be paid to the Commonwealth. . Attachments: Ordinance, Location Map, Summary of Terms Recommended Action: Approval of the ordinance Submitting Department/Agency: Public Works/Real Estate ~ 3/'1 /~MM f t2Jt t?q City Manager: ~~ I I II II 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 47 48 AN ORDINANCE DECLARING THE PROPERTY LOCATED AT 2245 REUBEN STREET TO BE IN EXCESS OF THE CITY'S NEEDS AND AUTHORIZING THE CITY MANAGER TO SELL THE PROPERTY TO TAMMY McCLENNEY WHEREAS, the City of Virginia Beach (the "City") is the owner of that certain parcel of land located at 2245 Reuben Street (GPIN 2407-02-1616) (the "Property"), more particularly described on Exhibit "A" attached hereto and made a part hereof; WHEREAS, the City acquired the Property pursuant to the APZ-1 Acquisition Program; WHEREAS, the City funded the acquisition of the Property through a partnership with the Commonwealth of Virginia (the "Commonwealth"), with each party contributing fifty percent (50%) of the funds; WHEREAS, the Property is in the midst of other residences and at the time of acquisition was improved with a residential dwelling; WHEREAS, City Council has elected to allow the renovation of the single- family home in order to maintain the integrity of the neighborhood; and WHEREAS, the renovation is a grandfathered nonconforming use allowed under current zoning law; WHEREAS, a Request for Proposal ("RFP") was advertised for the potential sale of the Property; WHEREAS, Tammy McClenney ("McClenney") responded to the RFP with an offer to purchase the Property; WHEREAS, the APZ-1 Disposition Committee has recommended that City Council declare the Property to be in excess of the City's needs and sell the Property to McClenney; WHEREAS, McClenney will renovate the single-family home on the Property to prescribed standards acceptable to the City, including elevated noise attenuation standards, and will thereafter occupy the Property; WHEREAS, McClenney will purchase the Property in accordance with the Summary of Terms attached hereto as Exhibit "B" and made a part hereof; WHEREAS, the City Council is of the opinion that the property is in excess of the needs of the City of Virginia Beach. 49 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 50 OF VIRGINIA BEACH, VIRGINIA: 51 52 That the Property located at 2245 Reuben Street (GPIN 2407-02-1616) is 53 hereby declared to be in excess of the needs of the City of Virginia Beach and that the 54 City Manager is hereby authorized to execute any documents necessary to convey the 55 Property to Tammy McClenney, in substantial conformity with the Summary of Terms 56 attached hereto as Exhibit B and such other terms, conditions or modifications as are 57 deemed necessary and sufficient by the City Manager and in a form deemed 58 satisfactory by the City Attorney. 59 60 Further, that the revenue from the sale of the Property in the amount of 61 $85,000 shall be received and appropriated to the Oceana and ITA Conformity and 62 Acquisition Project (CIP 9-060) and the City Manager shall thereafter refund the 63 Commonwealth's portion of such revenue and allocate the remainder for on-going 64 expenses of the City's BRAC program, but such appropriation shall not increase the 65 City's $7.5 million annual acquisition commitment. 66 67 This ordinance shall be effective from the date of its adoption. 68 69 Adopted by the Council of the City of Virginia Beach, Virginia, on the 70 day of , 2009. R-1 3/12/2009 CA 10986 V:\applications\Citylawprod\cycom32\Wpdocs\D012\P005\00006022.DOC APPROVED AS TO CONTENT ~ C, ~-S~ A.J) blic Works /CrFt1 t.srA~ APPROVED AS TO LEGAL SUFFICIENCY ~~~;~ City rney's Offic Department of Law I I II II EXHIBIT A GPIN: 2407-02-1616 (2245 Reuben Street) ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, numbered 2245 Reuben Street, formerly Lynnhaven Street, situated in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot 24, as shown on the Revised Plat of Gatewood Park, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 34, at Page 16; reference to which plat is hereby made for a more particular description of said property. IT BEING the same property acquired by deed from Melvin W. Blankenship, dated April 30, 2008, and recorded in the aforesaid Clerk's Office as Instrument No. 20080506000523780. EXHIBIT B SUMMARY OF TERMS SALE OF EXCESS PROPERTY AT: 2245 Reuben Street (GPIN 2407-02-1616) SELLER: City of Virginia Beach PURCHASER: Tammy McClenney PROPERTY: 2245 Reuben Street (GPIN 2407-02-1616) LEGAL DESCRIPTION: ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, numbered 2245 Reuben Street, formerly Lynnhaven Street, situated in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot 24, as shown on the Revised Plat of Gatewood Park, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 34, at Page 16; reference to which plat is hereby made for a more particular description of said property. IT BEING the same property acquired by deed from Melvin W. Blankenship, dated April 30, 2008, and recorded in the aforesaid Clerk's Office as Instrument No. 20080506000523780. SALE PRICE: $85,000 CONDITIONS OF SALE . Property is purchased "As Is, Where Iso" . Purchaser, or any future owner, will be subject to a deed restriction preventing participation in the APZ-1 Acquisition Program. . Owners are to acknowledge receipt of lead pamphlet, "Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools". The Purchaser shall provide to the City a lead-based paint clearance prior to occupying the property. . Renovation and noise attenuation shall be started within 90 days of settlement. I I II II . Specific requirements of renovation and noise attenuation include: . Replacement of the roof (thicker, denser roof shingles with a 40 year warranty). . Replacement of the gutters and downspouts, including concrete splash blocks. · Chimney will be properly flashed and tuck-pointed. · Exterior wood trim and woodwork will be replaced where rotted. · Siding and deluxe material (coil stock) to be replaced where damaged and all shall be properly caulked and sealed with color to match adjacent material. · Windows will be replaced (triple glazed vinyl or vinyl clad windows with a listed STC 28 rating, properly sealed and caulked). · Doors will be replaced with solid insulated metal doors with a listed STC 28 rating, along with storm doors if approved by each door manufacturer. · Porches & Steps will need all missing/damaged/rotten wood replaced and all shall be properly secured. · Foundation will be properly tuck-pointed and replacement of foundation vents where needed. · ALL storage sheds shall be removed. · Exterior woodwork, wood trim and doors of the house will need to be painted. · Insulation will be added - (R-40, sound attenuation rated insulation (in the attic areas) at ceiling joist or bottom cord of truss and also in the crawlspace a min. of R-19 sound attenuation rated insulation). · Seal all penetrations and openings through walls, ceilings and floors Le. electrical, plumbing, HV AC, etc. · Secure and seal all plumbing fixtures. · Correct all electrical code violations. · Electrical lighting to be properly secured. · Correct all plumbing code violations. · HV AC system will need to be replaced with a min. 14 SEER and 8.2 HSPF system. · Installation of smoke detectors as per code. · Repair all interior ceilings and walls to match existing. · Secure all wood trim, caulk and paint all ceilings, walls and wood trim. X:\Projects\CIP\Oceana & ITA Conformity & Acquisition (BRAC) CIP 9-060\BRAC\DISPOSITION OF BRAC\RFP\RFP _8_1_08\Council\McClenney Terms.DOC II II ,,,,,,,aij" ;t-~'" ....r;k, ~~t' ,"~) i:l ." \'" ~':\~ ;~} ~:;::.~ . - .Iii l\...~~.,J ...;,:,;., ~1I' ~1o".....,JJ -~......,..,." CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Commending the Virginia Beach Restaurant Association, Matt Falvey, and Laura & Kal Habr for Their Successful Efforts in Supporting State Legislation to Prohibit Smoking in Restaurants MEETING DATE: March 24,2009 . Background: For the past several years, City Council has sought state legislation that prohibits smoking in restaurants in the interest of public health for citizens who wish to go to a smoke-free establishment and for hospitality workers who are exposed on a daily basis to dangerous second-hand smoke. After many failed attempts over the past decade, the General Assembly earlier this year enacted legislation to prohibit smoking in restaurants and support from the restaurant community was essential to this legislative'victory. . The Virginia Beach Restaurant Association ("VBRA") led the way by strongly supporting this legislation and purchasing a full-page advertisement in the Virginian-Pilot to request enactment of it, despite opposition from the statewide restaurant association. Past VBRA president and Virginia Beach restaurateur Matt Falvey helped spearhead the Association's initial efforts and obtained the backing of the VBRA membership. VBRA members Laura and Kal Habr also strongly supported the legislation, and Governor Tim Kaine signed the legislation into law at their Virginia Beach restaurant. . Considerations: The Virginia Beach Restaurant Association, Matt Falvey, and Laura and Kal Habr, should be commended for the vital leadership they showed in their successful efforts supporting the recently enacted smoking legislation, which will benefit our citizens as well as our City's hospitality workers, who will no longer be forced to choose between earning a living and protecting their health. . Public Information: This item will be advertised in the same manner as other agenda items. . Attachments: Resolution Requested by Councilmembers Uhrin, Villanueva, and Wilson Requested by Councilmembers Uhrin, Villanueva, and Wilson 1 A RESOLUTION COMMENDING THE VIRGINIA 2 BEACH RESTAURANT ASSOCIATION, MATT 3 FALVEY, AND LAURA & KAL HABR FOR THEIR 4 SUCCESSFUL EFFORTS IN SUPPORTING STATE 5 LEGISLATION TO PROHIBIT SMOKING IN 6 RESTAURANTS 7 8 9 WHEREAS, for the past several years, the City Council has sought state 10 legislation that prohibits smoking in restaurants; and 11 12 WHEREAS, City Council supported such legislation in the interest of public 13 health, both for citizens who wish to go to smoke-free establishments and for the 14 hospitality workers who are exposed on a daily basis to dangerous second-hand smoke; 15 and 16 17 WHEREAS, after many failed attempts over the past decade, the General 18 Assembly earlier this year enacted legislation to prohibit smoking in restaurants; and 19 20 WHEREAS, support from the restaurant community was essential to this 21 legislative victory; and 22 23 WHEREAS, despite opposition from the statewide restaurant association, the 24 Virginia Beach Restaurant Association led the way by strongly supporting this legislation 25 in several important ways, including purchase of a full-page advertisement in the 26 Virginian-Pilot in which the association requested that the legislation be enacted; and 27 28 WHEREAS, Virginia Beach restaurateur Matt Falvey is a past president of the 29 VBRA who helped spearhead the association's initial efforts in support of the legislation, 30 and his leadership was vital to obtaining the backing of the VBRA membership; and 31 32 WHEREAS, VBRA members Laura and Kal Habr also were strong supporters of 33 the legislation, as evidenced by Governor Tim Kaine's decision to sign the legislation 34 into law at their Virginia Beach restaurant. 35 36 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 37 VIRGINIA BEACH, VIRGINIA: 38 39 That the City Council hereby commends the Virginia Beach Restaurant 40 Association, Matt Falvey, and Laura and Kal Habr for the vital leadership they showed 41 in their successful efforts supporting the recently enacted smoking legislation, which will 42 benefit our citizens as well as our City's hospitality workers, who will no longer be forced 43 to choose between earning a living and protecting their health. 44 II II 45 Adopted by the City Council of the City of Virginia Beach, Virginia, this 46 day of ,2009. APPROVED AS TO LEGAL SUFFICIENCY: ~~r City Attorney's Office CA11067 R-3 March 17, 2009 II II ."',8...... ~" . ...."..Y.:L ,,'.S' .... s.:-f-b :l;~~~,'." \\! ~J.. i t E>~ ('i_. ..) ..\~ ' h/j' l.;'+';. ....:c...'cI' '" -,:~,;-"'W'"",'j' -...~..J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Approving an Application of the Virginia Beach School Board to the Literary Fund of Virginia for a School Construction Loan in the Amount of $7,500,000 MEETING DATE: March 24, 2009 . Background: On March 3, 2009, the Virginia Beach School Board approved a resolution to submit an application to the Virginia Board of Education for a Literary Fund Loan of $7,500,000 to apply towards the construction of Great Neck Middle School. As part of the application process and as debt of the City of Virginia Beach, the Virginia Beach City Council must also approve the application. . Considerations: The Literary Fund Loan is an excellent financing tool as the interest rate on the loan is 3%, a rate lower than the City's current rate on general obligation bonds. While this loan is general obligation debt, it is not additional debt of the City as it will serve in lieu of the City's issuance of $7,500,000 of City Charter Bonds for schools purposes. It is repaid annually over twenty years with principal payments of $375,000. At present, the City has eight Literary Fund loans with an outstanding principal balance of $7.6 million. There is a cap of $20 million per locality. . Public Information: Public notice is provided through the normal Council agenda process. The item was also a part of the School Board agenda on March 3, 2009. . Alternatives: The alternative is to issue the City's General Obligation bonds at higher interest rates. . Recommendations: The Resolution approving the School Board's application for a Literary Fund Loan is recommended for approval. . Attachments: Resolution; School Board Resolution of March 3rd Recommended Action: Approval of Resolution Submitting Department/Agency: Finance City Manager~ t. ~ ltO"t- 1 A RESOLUTION APPROVING AN APPLICATION OF THE 2 VIRGINIA BEACH SCHOOL BOARD TO THE LITERARY 3 FUND OF VIRIGNIA FOR A SCHOOL CONSTRUCTION 4 LOAN IN THE AMOUNT OF $7,500,000 5 6 WHEREAS, in the FY2001-02 Capital Improvement Program, City Council 7 established Project, C.I.P. 1.019, Great Neck Middle School Replacement; 8 9 WHEREAS, additional funding for this replacement was appropriated in the 10 FY2008-09 Capital Budget; 11 12 WHEREAS, Section 22.1-146 of the Code of Virginia, 1950, as amended, 13 authorizes the Virginia Board of Education to make loans from the Literary Fund to local 14 school boards for the purpose of erecting, altering, or enlarging school buildings; 15 16 WHEREAS, any indebtedness owed by the Virginia Beach School Board to the 17 Literary Fund is a valid and legally binding indebtedness of the City of Virginia Beach, 18 Virginia, pursuant to Section 22.1-161 of the Code of Virginia, 1950, as amended; 19 20 WHEREAS, Section 22.1-158 of the Code of Virginia, 1950, as amended, 21 requires that the City shall include in its tax levies and appropriate to the school board 22 funds sufficient to meet the school board's debt service on any such loans; 23 24 WHEREAS, officials of the Virginia Beach School Board have prepared an 25 application addressed to the Virginia Board of Education for the purposes of borrowing 26 from the Literary Fund $7,500,000 to assist with the costs of replacing Great Neck 27 Middle School, to be paid in twenty (20) annual installments with interest thereon at 28 three (3) percent paid annually, which loan will be in lieu of an equivalent amount of 29 general obligation bonds previously authorized for the project; and 30 31 WHEREAS, City Council desires to support this request and believes it to be 32 appropriate. 33 34 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 35 VIRGINIA BEACH, VIRGINIA: 36 37 1. That the application to the Virginia Board of Education for a loan of 38 $7,500,000 from the Literary Fund to the Virginia Beach School Board is hereby 39 approved. 40 41 2. That the City Council include in its levies and appropriate to the Virginia 42 Beach School Board funds sufficient to meet the School Board's debt service on this 43 loan. 44 45 This resolution shall be in effect from the date of its adoption. 46 II 47 Adopted by the Council of the City of Virginia Beach, Virginia on the _ day of 48 March, 2009. 49 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~ ~--- ty ~Y'S Office CA11069 R-2 March 13, 2009 SCHOOL BOARD Danl.1 D. Edwerds Ch.lnnen District 1 - CentelVille 1513 Beachview Drive VA Beach, VA 23464 495-3551 (h) . 717-0259 (c) RIta Sweet Belllt10 Vice Chairman At-la'ge P.O. Box 6448 VA Beach, VA 23456 418-0960 (c) William J. "Bill" Brunke. IV District 7 - Princess Anne 4099 Foxwood Drive. Suile 201 Vilginia Beach. VA 23462 222-0134 (w) . 286.2772 (c) Todd C. Davldlon At.la'ge 2424 SavannaJ Trail VA Beach, VA 23456 427.3330 (w) . 285-9409 Ie) Emma L "Em" Davll District 5 . Lynnhaven 1125 Michaelwood Drive VA Beach, VA 23452 340-8911 (h) Pltricla G. Edmonson District 6 - Beach 20534th Street #1515 VA Beach, VA 23451 675.0137 (h) Dan R. Low. Distticl4 . Bayside 4617 Red Coat Road VA Beach, VA 23455 490-3681 (h) Brent N. Mck.nzl. District 3 - Rose Hall 1400 Brookwood Place VA Beach, VA 23453 81 &-2736 (e) Pltriek S. Salyer At-Large 1741 Seaton Drive VA Beach, VA 23464 620.2141 (e) Sandra Smlth..Jones District 2 .. Kerr.psviile 705 Rock Creek Court VA Beach, VA 234€2 490-8167 (h) Carolyn D. Weems At-Large 1420 Claudia Dnve VA Beach. VA 23455 464-6674 (h) SUPERINTENDENT James G. Merrill. Ed.D. 2512 George Mason Drive VA Beach, VA 23456 263-1007 ViRGINIA BEACH CITY PUBLIC SCHOOLS AHEAD OF THE CURVE RESOLUTION APPROVING APPLICATION FOR A LITERARY LOAN FOR GREAT NECK MIDDLE SCHOOL WHEREAS, the School Board of the City of Virginia Beach, Virginia and the City Council of the City of Virginia Beach, Virginia have determined that the School Board has an immediate need to implement certain school capital projects including the acquisition, renovation and construction and equipping of improvements to and new facilities for Great Neck Middle School for school purposes (collectively the "Projecr) and the School Board will make application to the Literary Fund of the Commonwealth of Virginia for a Literary Loan (the "Literary Loan") relating to the Project in the total aggregated amount of $7,500,000.00 or otherwise cooperate with the City to obtain long- term financing of the Project; and WHEREAS, the School Board has embarked upon the construction of a new Great Neck Middle School and the renovation or replacement of related facilities to replace the aging existing building and facilities located at 1848 North Great Neck Road, Virginia Beach, Virginia, 23454; and WHEREAS, the Project requires $62,549,253.00 in monies to pay for the needed construction Project that the City must borrow long term; and WHEREAS, the Commonwealth's Literary Loan Fund is a source needed to assist the City in funding the $62,549,253.00 construction Project. Now, therefore, be it RESOLVED: that the School Board hereby approves the submission of a $7,500,000.00 application for Literary Loan Funds as part of the necessary funding for the Great Neck Middle School construction Project and authorizes the Superintendent or his designee to take other actions as necessary to obtain the Literary Loan; and be it FURTHER RESOLVED: that a copy of this Resolution be spread across the official minutes of this Board, and the Clerk of the Board is directed to deliver a copy of this Resolution to the Mayor, each member of the City Council, the City Manager and the City Clerk, Adopted by the School Board of the City of Virginia Beach, Virginia this 3rd day of March 2009 SEAL o 1/ C' ) ~ . .I- r L.r"'Jf;,IIJ}.Llt ,( . ---- Daniel D. Edwards, Chairman . Attest: ~ -p a.ew.~&~ Dianne p, Alexander, Clerk of the Board School Administration Building' 2512 George Mason Drive' P.O. Box 6038 . Virginia Beach, VA 23456-0038 wW.vbschools.com II II '5~I'~~ .''''''','.~~~ .~' ',~~ ~" - 11 ~~ ...j ~Or......~". CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Extend a Pilot Program to Allow Riding Horses on the Beach from April 15, 2009 through May 25, 2009, and to Authorize the City Manager to Execute an Amended Franchise Agreement for That Purpose MEETING DATE: March 24, 2009 . Background: On February 28, 2006, City Council approved a pilot program to allow the Convention and Visitors Bureau ("CVB") to evaluate horseback riding on the beach during non-summer months, namely from November 1 to April 15 ("Original Pilot Program"). Pursuant to Council's authorization in February 2006, the City entered into a franchise agreement on December 18, 2006 for guided horse riding tours on the beach in the Resort Area ("Agreement") with Old Virginia Carriage Co., LLC ("OVCC"). The tenn of the Agreement was from December 15,2006 through April 15, 2007. Paragraph 2 (b) of the Agreement provides that the Agreement may be renewed by mutual agreement of the parties for up to four (4) additional terms, not to extend beyond April 15, 2011. On October 26, 2007, the parties renewed the original Agreement for guided horse riding tours on the beach in the Resort Area for the period of November 1, 2007 through April 15, 2008 ("First Renewal Agreement"). On June 10, 2008, City Council approved an ordinance to amend the Virginia Beach City Code pertaining to riding horses on the beach. That City Code section allows horseback riding in the Resort Area, but only if such activity is explicitly authorized by a special events permit or by a franchise awarded by City Council. The code section also had provided that such authorized riding only could occur between November 1 and April 15, but the June 10, 2008 amendment deleted that date restriction. Concurrent with the amendment on June 10, 2008, Council approved a new pilot program to allow horse riding on the beach during months outside of the November 1 to April 15 timeframe ("Current Pilot Program"). Pursuant to Council's authorization in June 2008, the parties entered into two agreements on September 16, 2008. First, the parties renewed the original Agreement for guided horse riding tours on the beach in tho'} Resort Area ("Second Renewal Agreement"). The term of the Second Renewal Agreement is from April 16, 2008 through April 15, 2009, but horse riding is only permitted on the beach during the non-summer months, namely from November 1, 2008 through April 15, 2009. The second September 16, 2008 agreement was an amended franchise agreement ("Amended Agreement"). The Amended Agreement authorized OVCC to offer horse riding on the beach for the term of September 2, 2008 through November 1, 2008. The Second Renewal Agreement is set to expire on April 15, 2009. CVB has requested more time to test the Current Pilot Program, and is seeking to extend the Second Renewal Agreement from April 15, 2009 through May 25, 2009. . Considerations: At the conclusion of the proposed extension of the Second Renewal Franchise, if CVB wishes to continue to permit horseback riding on the beach on a year-round basis, CVB will issue a new request for proposals, and Council would be asked to adopt an ordinance that authorizes a new franchise that extends beyond the trial period. . Public Information: Information will be provided through the nomlal agenda process. . Alternatives: Continue with existing franchise and only allow horse riding between November 1 and April 15. . Recommendations: Approval of ordinance . Attachments: Ordinance Submitting Department: Convention and Visitor's Bureau 9'1//L-- City Manager~ k .CtJ~ II II 1 AN ORDINANCE TO EXTEND A PILOT PROGRAM TO 2 ALLOW RIDING HORSES ON THE BEACH FROM APRIL 3 15, 2009 THROUGH MAY 25, 2009, AND TO AUTHORIZE 4 THE CITY MANAGER TO EXECUTE AN AMENDED 5 FRANCHISE AGREEMENT FOR THAT PURPOSE 6 7 WHEREAS, on February 28, 2006, City Council approved a pilot program to 8 allow the Convention and Visitors Bureau ("CVB") to evaluate horseback riding on the 9 beach during non-summer months, namely from November 1 to April 15 ("Original Pilot 10 Program"); 11 12 WHEREAS, pursuant to Council's authorization in February 2006, the City 13 entered into a franchise agreement on December 18, 2006 for guided horse riding tours 14 on the beach in the Resort Area ("Agreement") with Old Virginia Carriage Co., LLC 15 ("OVCC"); 16 17 WHEREAS, the term of the Agreement was from December 15, 2006 through 18 April 15, 2007; 19 20 WHEREAS, paragraph 2 (b) of the Agreement provides that the Agreement may 21 be renewed by mutual agreement of the parties for up to four (4) additional terms, not to 22 extend beyond April 15, 2011 ; 23 24 WHEREAS, on October 26,2007, the parties renewed the original Agreement for 25 guided horse riding tours on the beach in the Resort Area for the period of November 1, 26 2007 through April 15, 2008 ("First Renewal Agreement"); 27 28 WHEREAS, on June 10, 2008, City Council approved an ordinance to amend the 29 Virginia Beach City Code pertaining to riding horses on the beach; 30 31 WHEREAS, that City Code section allows horseback riding in the Resort Area, 32 but only if such activity is explicitly authorized by a special events permit or by a 33 franchise awarded by City Council; 34 35 WHEREAS, the code section also had provided that such authorized riding only 36 could occur between November 1 and April 15, but the June 10, 2008 amendment 37 deleted that date restriction; 38 39 WHEREAS, concurrent with the amendment on June 10, 2008, Council approved 40 a new pilot program to allow horse riding on the beach during months outside of the 41 November 1 to April 15 timeframe ("Current Pilot Program"); 42 43 WHEREAS, pursuant to Council's authorization in June 2008, the parties entered 44 into two agreements on September 16, 2008; 45 46 WHEREAS, first, the parties renewed the original Agreement for guided horse 47 riding tours on the beach in the Resort Area ("Second Renewal Agreement"); 48 49 WHEREAS, the term of the Second Renewal Agreement is from April 16, 2008 50 through April 15, 2009, but horse riding is only permitted on the beach during the non- 51 summer months, namely from November 1, 2008 through April 15, 2009; 52 53 WHEREAS, the second September 16, 2008 agreement was an amended 54 franchise agreement ("Amended Agreement"); 55 56 WHEREAS, the Amended Agreement authorized OVCC to offer horse riding on 57 the beach for the term of September 2, 2008 through November 1, 2008; 58 59 WHEREAS, the Second Renewal Agreement is set to expire on April 15, 2009; 60 and 61 62 WHEREAS, CVB has requested more time to test the Current Pilot Program, and 63 is seeking to extend the Second Renewal Agreement from April 15, 2009 through May 64 25, 2009. 65 66 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 67 VIRGINIA BEACH, VIRGINIA: 68 -69 That City Council hereby consents to the extension of the current pilot program to 70 permit OVCC to offer guided horse riding tours on the beach in the Resort Area for the 71 period of April 15, 2009 through May 25, 2009, and authorizes the City Manager or his 72 designee to execute an amended franchise agreement with OVCC for said purpose. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~f- City Attorney's Office CA11054 R-4 March 12, 2009 II II ITEM: An Ordinance to Amend the City's Open Air Cafe Regulations to Authorize Open Air Cafes Along Resort Gateway Corridors and in Areas West of Pacific Avenue MEETING DATE: March 24,2009 . Background: In 1985, the City Council authorized the City Manager to promulgate Open Air Cafe Regulations ("Regulations") to implement an open-air cafe program in the public right-of-ways in an effort to enhance the overall dining environment at the oceanfront. Under the Regulations, open air cafes were not permitted west of Pacific Avenue because of noise concerns and the lack of restaurants in this area. Recently, the Resort Advisory Committee ("RAC") and the resort business community have requested that the Regulations be revised to permit open air cafes in areas west of Pacific Avenue. The RAC and the resort business community have endorsed the proposed amendments to the Regulations. . Considerations: The future redevelopment of the 17th, 19th and 31st Street corridors and other areas in the Resort Area will attract upscale shops and restaurants. The proposed amendments to the Regulations will allow open air cafes in gateways west of Pacific Avenue, while minimizing the impact to the residential neighborhoods. The proposed amendments to the Regulations also reformat the Regulations to better organize them and to make them more user friendly. . Public Information: Information will be provided through the normal agenda process. . Alternatives: Continue operating under the current cafe guidelines and not permit open air cafes west of Pacific Avenue. . Recommendations: Approval of ordinance. . Attachments: Ordinance, Summary of proposed changes to the Regulations, and Revised Regulations Recommended Action: Approval of Ordinance If Submitting Department/Agency: Department of Convention and Visitor's Bureau. /~ City Manag~ ~ ~l.lIT1. 1 AN ORDINANCE TO AMEND THE CITY'S OPEN AIR CAFE 2 REGULATIONS TO AUTHORIZE OPEN AIR CAFES 3 ALONG RESORT GATEWAY CORRIDORS AND IN AREAS 4 WEST OF PACIFIC AVENUE 5 6 WHEREAS, by resolution adopted November 15, 1985, City Council authorized 7 the City Manager to promulgate Open Air Cafe Regulations ("Regulations"), which have 8 been amended from time to time to address concerns and issues that have arisen 9 during the operation of these cafes; and 10 11 WHEREAS, these Regulations have, to date, prohibited open air cafes west of 12 Pacific Avenue; and 13 14 WHEREAS, the redevelopment of areas west of Pacific Avenue, including the 15 17th, 19th and 31 st Street corridors, and other areas in the Resort, will attract upscale 16 shops and restaurants; and 17 18 WHEREAS, members of the Resort Advisory Committee ("RAC") and the resort 19 business community requested that the Regulations be revised to allow open air cafes 20 in areas west of Pacific Avenue and in other resort growth corridors, and have endorsed 21 the proposed amendments to the Regulations; and 22 23 WHEREAS, the proposed amendments to the Regulations will permit cafes in 24 gateways west of Pacific Avenue, while minimizing the impact on residential 25 neighborhoods; and 26 27 WHEREAS, the proposed amendments to the Regulations will result in a 28 reformatting of the existing Regulations so that the Regulations are better organized 29 and more user friendly; and 30 31 WHEREAS, approval of the amended Regulations will enhance the Resort Area 32 by providing additional open air cafes and eateries. 33 34 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 35 VIRGINIA BEACH, VIRGINIA: 36 37 That the City Manager is hereby authorized to amend the Open Air Cafe 38 Regulations to permit open air cafes along resort gateway corridors and in areas west of 39 Pacific Avenue, and to reformat the Regulations, as detailed in the proposed revisions 40 presented to the City Council. Adopted by the Council of the City of Virginia Beach, Virginia on the day of ,2009. II II APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: epartment of Convention and Visitors Bureau '1--- CA11049 R-5 March 9, 2009 Summary of Revisions to Resort ODen Air Cafe Franchise Ref!Ulations The changes to the Resort Open Air Cafe Franchise Regulations ("'Regulations") are designed (1) to permit cafes west of Pacific Avenue; and (2) to allow applicants to easily locate information on particular cafe types. The proposed revisions to the Regulation extend the existing cafe boundaries to permit cafes west of Pacific Avenue. The redevelopment of the 17th., 19th. and 31 st corridors, and other areas in the Resort Area, support the need to add a Gateway Cafe to the Regulations. The design and operating requirements of the Gateway Cafe are intended to enhance the pedestrian experience, and to improve the general aesthetics of the area while having a minimum impact on the surrounding residential neighborhoods. Additionally, the revisions reformat the existing Regulations. Each cafe type in the existing Regulations has a specific section with all design and operating requirements. Many of the design and operating requirements are identical in each section. To make the Regulations more user friendly, the Resort Advisory Commission has requested that the format of the Regulations be changed to group all general cafe requirements into one section, and to include the specific requirements for the different cafe types in a separate section. The requirements of each existing cafe type remain the same, and minor word changes help to clarify the regulations. RESORT OPEN A\R CAFE FRANCI-\lSE REGULA "{IONS February 04, 2009 cITY OF VIRGINIA BEACH RESORT OPEN AIR CAFE FRANCmSE REGULATIONS SECTION 1. GENERAL PURPOSE Rev. 02/04/2009 1. 1 The Resort Open Air Cafe regulations are for the RT-l, RT-2, and RT-3 zoning districts located in the resort area specifically identified as adjacent to the Boardwalk, Connector Parks, Atlantic A venue, Atlantic A venue side streets, and in selected Gateway locations west of Pacific Avenue. The Cafe Franchise Program is designed to allow and encourage outdoor cafes on the public right-of- way fronting pedestrian-oriented ways where they are appropriate, and will promote an ambiance conducive to public health, safety, general welfare, and serve as a public amenity. The goals of the program are as follows: 1.1.a To promote cafes as visual amenities which improve the appearance and pedestrian ambience of the Boardwalk, Connector Parks, and pedestrian- oriented street frontages. 1.1. b To preserve and enhance the character of the resort area and to promote the most desirable use of public property. 1.I.c To ensure that adequate clearance is maintained for pedestrians and bicyclists adjacent to cafes. 1.I.d To establish administrative and enforcement procedures for Open Air Cafes that are effective, efficient, and enforceable. 1.I.e To ensure the construction of attractive, lightweight, removable structures. SECTION 2. DEFINITIONS 2.1 Resort Open Air Cafe: an outdoor dining facility directly adjoining an existing restaurant in the RT-l, RT-2 or RT-3 Zoning District, franchised to operate on public property. All facilities to be considered for this program are required to provide waiter/waitress service, from a full service menu served on non- disposable dishware, in a specific semi-enclosed cafe space as described herein. A franchise for these cafes will only be granted to those restaurants located on private property with 80% or more of interior space dedicated to table and chairs for sit down service by a waiter or waitress. No portion of an Open Air Cafe shall be used for any purpose other than dining or related circulation. Cafes must have direct access to the host restaurant. All cafes and the required adjacent/operating business shall meet all ADA requirements (including rest room facilities within restaurant). Cafe Categories, each with requirements specific to their locations, are described below: II II Category A - Boardwalk Cafe. A resort open air cafe located on public property facing the boardwalk in the R T -1 zoning district. Category B - Connector Park Cafe. A resort open air cafe located on public property in a Connector Park in the R T -1 zoning districts. The Cafe shall not extend East of the building's property line. Category C - Atlantic Avenue Sidewalk Cafe. A resort open air cafe located on the public sidewalk along Atlantic Avenue in the RT-2 Zoning Districts, not including those located between 15th and 24th Streets (See Category E). Category D - Atlantic Avenue Side Street Cafe. A resort open air cafe in the RT-2 or RT-3 zoning district located on the public sidewalk on numbered side streets between Atlantic and Pacific Avenues. Category E - Atlantic Avenue Sidewalk Cafe-15th to 24th Streets. A resort open air cafe located on the public sidewalk along Atlantic Avenue in the RT-2 Zoning Districts between 15th and 24th Streets on Atlantic Avenue. Category F - Gateway Cafe. A resort open air cafe located on public property from Pacific Avenue, westward, in the RT-3 Zoning District fronting on city designated Gateway streets. 2.2 Obstruction: Public infrastructure improvements such as traffic signal poles, sign poles, light poles, planting areas, tree grates, trees, trash receptacles, benches, bike racks, parking meters, etc., that may impede the flow of pedestrian traffic. SECTION 3. FACILITIES NOT CONSIDERED FOR THE CAFE PROGRAM 3.1 Fast Food Establishments. An establishment, franchised or otherwise, that offers quick food service of items already prepared and held for service; or prepared, fried, griddled quickly or heated in a device such as a microwave oven; and/or orders are not taken at the customer's table; and food is generally served from a counter in disposable wrapping or containers, will not be considered for outdoor cafes. SECTION 4. OPERATIONAL REQUIREMENTS- ALL CAFES 4.1 In order to be considered for approval under the Resort Open Air Cafe Program, the Applicant must agree to meet the following Operational requirements: 4.1.a Cafes must provide full waiter/waitress table service, from a full service menu served on non-disposable dishware, as defined in par. 2.1. 4.1.b All patrons of cafes shall be seated while in the cafe area. 3 4.1.d Patrons may consume alcoholic beverages in these cafes that have been prepared within the host restaurant, in compliance with state ABC regulations. Cafe employees shall not prepare or pour alcoholic beverages within any cafe. 4.1.d Solicitation of any type, as described in Section 26..3 of the City code, from any cafe will result in immediate termination of franchise agreement. SECTION 5. ENTERTAINMENT/AMPLIFIED MUSIC 5.1 Live or recorded entertainment is allowed under the following conditions in all outdoor cafes, unless noted otherwise in specific Cafe Categories herein. 5.1.a Between the hours 12:00 p.m. and 11 :00 p.m. only. 5.1.b Solo or duo live entertainment only. Connecting cafes do not constitute more than one entertainment venue. 5.1.c The cafe franchise agreement administrator/city officials shall have the sole discretion in determining if the music sound level emanating from the cafe is considered loud or disturbing. Amplification of music shall be directed within cafe area. 5.1.d Cafe operators shall receive one written warning that the music does not comply with the cafe regulations. Upon notice of a second violation, the cafe will forfeit their entertainment within the cafe for the remainder of the season. Subsequent violations will be grounds to terminate the cafe franchise agreement. SECTION 6. GENERAL CAFE REQUIREMENTS Requirements apply to all outdoor cafes, unless noted otherwise in specific Cafe Categories herein. 6.1 Size: Improvements on public property may not cover more than the front face of the operating business building or exceed a total of 800 sq ft. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of the Resort Area Facade Program and the Resort Streetscape Improvements. The size of the cafe must maintain clearances as outlined in each section from public infrastructure improvements such as traffic signal poles, sign poles, light poles, planting areas, tree grates, trees, trash receptacles, benches, bike racks, parking meters, etc., that may impede the flow of pedestrian traffic. 4 II II 6.2 Access: Only one well-defined entrance opening is permitted to the cafe area; the cafe area must be connected to the corresponding business entrance. Orientation of that opening will be reviewed by the City staff according to pedestrian safety and the aesthetic requirements of each location. Access will meet all ADA Standard Disability Access requirements. 6.3 Perimeter Fence: A perimeter fence is required, and shall be a minimum of thirty (30) inches in height and maximum 42" height. It shall be constructed of finished painted wood, factory-finished metal, or a manufactured fiberglass railing system. All cafe perimeter fence systems shall be reviewed by the city prior to approval for their use. Planter systems are encouraged to complement the fencing system. 6.4 Canopy: Canopies, where permitted or required, shall be a soft top, demountable canopy constructed as specified herein. The canopy shall only cover the top of the Cafe, except that transparent vinyl or plastic curtains may be used on the sides as windbreaker during inclement weather only. At no point shall the height of the canopy be lower than eight (8) feet above the floor of the Cafe. The valence of the awning shall not exceed twelve (12) inches in height. Ifumbrellas are used the name of the cafe may appear on the valence of each umbrella. All canopies shall be constructed of fire resistant vinyl fabric or canvas as approved by the City of Virginia Beach Planning DepartmentJPermits and Inspection Division, and shall meet all applicable Building, Structural, and Fire Codes. Supporting Structure shall be metal pipe or tube system not to exceed 2" in Diameter. Requests for Deviations shall be individually reviewed by the City. The structure must be dismantled easily and not permanently attached to adjacent building. 6.5 Fixtures & Furnishings: The furnishings of the interior of a resort open air cafe shall consist solely of moveable tables and chairs and decorative accessories. Tables and chairs shall be constructed of stainless steel, fiberglass, powder coated aluminum or other metal, painted wood, high density polyethylene (HDPE) or an approved site furnishing system. All cafe furnishings shall be reviewed by the city prior to approval for their use. . In no event shall such objects penetrate the exterior perimeter boundary or the canopy. Planter boxes on cafe railing are encouraged. All movable objects required for operation of a resort cafe shall be removed from the cafe area and stored out of view during adverse weather conditions acclaimed by the City, or when the cafe is not in operation for more than a five (5) day period. These objects include tables, chairs, furnishings, and decorative fixtures. Plantings in boxes or planters shall be properly maintained year round, or shall be removed when the cafe is not in operation. 5 6.6 Lighting: Only incandescent lighting, candles, Christmas lights, and ceiling fans are permitted on the interior of the Boardwalk Cafe. 6.7 Signs: One (1) menu board is permitted within the perimeter of the resort open air cafes. The menu board shall not be larger than five (5) square feet. The name of the establishment may be painted or sewn in a single location on the valence of the canopy with a maximum of eight (8)-inch lettering. 6.8 Storage: Storage of any kind is not permitted on public property; including trash or refuse. 6.9 Maintenance: Cleanup and necessary maintenance of the area of a Resort Open Air/Boardwalk Cafe including landscaped areas, planter boxes and City property adjacent to cafe is the sole responsibility ofthe designated franchisee. SECTION 7. SPECIAL CAFE REQUIREMENTS, BY CATEGORY 7.1 Category A - Boardwalk Cafes. 7.1.a Setbacks: Category A cafes shall have a minimum setback often (10) feet from the western edge of the bicycle path. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. 7.1.b Canopy: Category A Cafes are required to have a Canopy complying with Section 6.4. 7.1.c Plantings: Planting beds shall be provided and properly maintained by the owner/applicant around the perimeter of the Boardwalk Cafe. The Planting bed(s) adjacent to the cafe shall extend a minimum of five (5) feet and a maximum often (10) feet into the right of way. Site specific issues that warrant a deviation from the minimum and maximum requirement will be considered. The City Landscape Services Department shall review and approve the applicant's landscape plan prior to operating the cafe. 7.1.d Access: Only one well-defined entrance opening connected to an existing or new walkway system which connects to the boardwalk shall be permitted. Access will meet all ADA Standard Disability Access requirements. Only one five (5) foot walkway is permitted. 7.t.e Bicycle Parking Area: Bicycle parking areas are recommended to be integrated with the cafe improvements. The bicycle parking area will be approximately eight (8) feet by eleven (11) feet concrete, brick pavers, or similar paved area with a single load bicycle rack. This area will not be included in franchise cafe area allowance; however, it should be made available for general public use. 6 II II 7.1.f Floor: Floor shall be a smooth clean permanent surface as required by the City of Virginia Beach Health Department. 7.1.g Perimeter Fence: In addition to materials listed in Sec 6.3, glass block, pre-finished decorative masonry block or brick are also permitted materials in this cafe category. 7.2 Category B - Connector Park Cafes. 7.2.a Setbacks: Category B Cafes are required to have minimum setback often (10) feet from the Atlantic Avenue curb line. The Cafe is not to extend east of the building's property line. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. 7.2.b Floor: Floor shall be a smooth clean permanent surface as required by the City of Virginia Beach Health Department. 7.2.c Canopy: Canopies are permitted but not required unless hotel rooms and balconies are directly above cafe area. Umbrellas are permitted. 7.2.d Perimeter Fence: In addition to materials listed in Sec 6.3, glass block, pre-finished decorative masonry block or brick are also permitted materials in this cafe category. 7.2.e Planting: Planting beds shall be provided and properly maintained by the owner/applicant around the perimeter of the Boardwalk Cafe. The Planting bed(s) adjacent to the cafe shall extend a minimum of five (5) feet and a maximum often (10) feet into the right of way. Site specific issues that warrant a deviation from the minimum and maximum requirement will be considered. Additional planting may be required by City Staff for Category B Cafes (Connector Park Cafes) to tie in with existing connector park configurations. The City Landscape Services Department shall review and approve the applicant's landscape plan. 7.2.f Access: One well-defined opening is required. Orientation of that opening will be reviewed by the City staff according to pedestrian safety and the aesthetic requirements of each location. Access will meet all ADA Standard Disability Access requirements. 7.2.g Bicycle Parking Area: Bicycle parking areas are not allowed in the Connector Parks. Category B Cafes (Connector Park Cafes) must use existing parking racks. 7.2.h Service Bar Openings: Service bar openings for waiter/waitress use are allowed into a Connector Park Cafe only. Service bar opening will be maximum of 5 feet wide. Operation of bar must meet all ABC regulations. 7 7.3 Category C - Atlantic Avenue Sidewalk Cafe, not including those located between 15th and 24th Streets (See Category E) 7.3.a Setback: Category C Cafes are required to be setback a minimum of eight (8) feet from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured from the portion of the cafe frontage which is nearest the obstruction. 7.3.b Floor: Only the existing paving or sidewalk is to be used for the cafe. Should the building be setback from the curb line, the development of new surfaces for seating may be permitted. 7.3.c Canopy: Canopies are not allowed for Category C Cafes, but awnings, as allowed through the Resort Area Facade Program are permitted. Awnings extending beyond the dimension permitted in the Resort Area Facade Program (3 ') may be permitted based on review by City staff and the Resort Advisory Commission (RAC). Umbrellas are permitted. If umbrellas are used, the name of the cafe may appear on the valence of each umbrella. 7.3.d Planting: Perimeter planter boxes are required; selection of plantings will be reviewed and approved by City staff. All such planters or plantings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.3.e Size: Category C Cafes may not cover more than the front face of the operating business building. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of the Resort Area Facade Program and the Resort Streetscape Improvement Program 7.3.f Bicycle Parking Area: Bicycle parking areas are not allowed. Category C Cafes must use existing bike racks. 7.4 Category D - Atlantic Avenue Side Street Cafe. 7.4.a Setback: Category D Cafes (Atlantic Avenue Side Street Cafes) are recommended to be set back eight (8) feet from the curb line, but a minimum distance of (6) feet clear sidewalk width, from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured 8 II from the portion of the cafe frontage which is nearest the obstruction. 7.4.b Floor: Only the existing paving or sidewalk is to be used for the cafe. Should the building be setback from the property line, the development of new surfaces for seating may be permitted on private property only. 7.4.c Canopy: Canopies are permitted but not required. Umbrellas are permitted 7.4.d Planting: Perimeter planter boxes are required; selection of plantings will be reviewed and approved by City staff. All such planters or plantings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.4.e Size: A Category D Cafe may not cover more than the front face of the operating business building. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of Resort Area development guidelines in affect at the time of application. 7.4.f Bicycle Parking Area: Bicycle parking areas are not allowed. Category D Cafes must use existing bike racks. 7.5 Category E - Atlantic Avenue Sidewalk Cafe--15th to 24th Streets. 7.5.a Setback: Category E Cafes are required to be setback a minimum of eight (8) feet from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured from the portion of the cafe frontage, which is nearest the obstruction. 7.5.b Floor: The existing paving or sidewalk is to be used for the cafe. Should the building be setback from the curb line, the development of new surfaces for seating may be permitted on private property only. 7.5.c Awnings: Canopies are not allowed for Category E Cafes, but awnings as allowed through the Resort Area Facade Program are permitted. Awnings extending beyond the dimension permitted in the Resort Area Facade Program (3 ') may be permitted based on review by City staff and the Resort Advisory Commission (RAC) Planning Design Review Subcommittee (PDRC). Umbrellas are permitted. Ifumbrellas are used the name of the cafe may appear on the valence of each umbrella. 9 7.5.d Planting: Perimeter planter boxes are required; selection of plantings will be reviewed and approved by City staff. All such planters or plantings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.5.e Access: Cafes shall be accessed from the interior of the restaurant and not from the Atlantic Ave. sidewalk area. Special consideration should be given to refurbishment of the restaurant fayade to allow access to the cafe from the interior of the restaurant at another location than the main restaurant entrance. French doors or similar door systems should be used to open the existing restaurant directly on to the outdoor cafe so as to not conflict with the main restaurant entrance area. Orientation of that opening will be reviewed by the City staff according to pedestrian safety and the aesthetic requirements of each location. Access will meet all ADA Standard Disability Access requirements. 7.5.f Size: A Category E Cafe may not cover more than the front face of the operating business building. In addition, the scale, proportion, and overall design of the cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of the Resort Area Facade Program and the Resort Streetscape Improvement Program. 7.5.g Bicycle Parking Area: Bicycle parking areas are not allowed. Category E Cafes must use existing bike racks. 7.5.h Special Franchise Requirements: Every Category E Cafe (Atlantic Avenue Sidewalk Cafe--15th to 24th Streets) franchise agreement shall contain the following special requirements, which shall control in the event of a conflict with any other provisions of the Resort Open Air Cafe Regulations: 1. Alcoholic beverages shall only be served with meals, and only in unbreakable drink ware; 2. The operator shall not permit persons other than patrons or employees of the establishment to enter the premises or to congregate therein, other than those patrons seated at tables provided by the establishment; 3. In the event a public safety official determines that the open air cafe should be closed earlier than the normal closing time for reasons of crowd control, unruly behavior either within the establishment or in nearby areas, or for other reasons related to preservation of public safety or public order~, the operator shall 10 II II close the open air cafe immediately or at such later time as directed by the public safety official, and the willful failure or refusal of any person to comply with such order shall be punishable as a misdemeanor, as provided by City ordinance; 4. The establishment must offer a full service menu (a copy of which shall be provided to the City Manager as part of the franchise application), and the open-air cafe may remain open only so long as all regular menu items served by the establishment are available to patrons; All tables and chairs shall be removed from the premises upon the close of business each day and stored inside the establishment, and the operator shall not permit the franchised area to be used for storage of furniture or equipment or for any purpose other than as an open-air cafe; 6. The operator shall not allow persons awaiting entry into the establishment or open-air cafe to form lines on the sidewalk, but shall admit patrons only from the inside of the establishment; and 7. The operator shall strictly comply with all fire, building, zoning, alcoholic beverage control, or health regulations in the operation of the open air cafe and the remainder of the establishment. 7.5.i Fa~ade Review and Improvements: Prior to the consideration of any application for a Category E (Atlantic Avenue Sidewalk Cafe--15th to 24th Streets) franchise, the applicant must submit a preliminary concept of the proposed cafe, including photographs of the existing fayade of the associated restaurant building and adjacent building fayades, and architectural renderings demonstrating how the cafe will be integrated with the associated restaurant building's fayade. 7.5.j The fayade must be structurally sound and in good repair, and the proposed cafe and fayade must be consistent with the Resort Area Fayade Program Design Guidelines. 7.5.k The Resort Advisory Commission Design Committee will review the proposed cafe and the condition of the existing building fayade and either (1) approve the preliminary concept or (2) provide the applicant with recommended changes for the proposed cafe, the fayade or both. Only after the preliminary concept is approved will an application for a Category E franchise be considered under section 6.1. 7.5.1 The effective date of this subsection shall be January 1,2006. No Category E franchise shall be granted or renewed for a term that extends beyond April 30, 2006, unless the franchisee has complied with the 11 requirements of this subsection. 7.6 Category F - Gateway Cafe. 7.6.a The scale, proportion, material selection, and overall design of each Gateway Cafe shall be reviewed by City staff to ensure the cafe is compatible with the adjacent building, the street block face, and the overall goals of Resort Area development guidelines in affect at the time of application. 7.6.b Setback: Category F Cafes are required to be setback a minimum of eight (8) feet from the curb line and all obstructions in the public right-of-way. Pending review of specific cafe site plans, additional setbacks and clear path space may be required. The minimum distance shall be measured from the portion of the cafe frontage which is nearest the curb or obstruction. 7.6.c Floor: The existing paving or sidewalk, if existing, shall be used for the cafe floor. New floor shall be a smooth clean permanent surface as required by the City of Virginia Beach Health Department. Material shall be appropriate for each given location, and shall be reviewed and approved on a site-specific basis. 7.6.d Awnings: Requests for Canopies will be reviewed on a case by case basis, depending on location. 7.6.e Planting: Perimeter planter boxes are required; selection of plantings will be reviewed and approved by City staff. All such planters or plantings shall be on or within the allowable cafe area, and shall be properly maintained by the applicant at all times. 7.6.f Size: A Category D Cafe may not cover more than the front face of the operating business building. 7.6.g Given the close proximity of Category F cafes to residential neighborhoods, cafe shall remain open no later than midnight. Live Music shall not be permitted after 10:00 pm Sunday through Thursday nights. SECTION 8. ADMINISTRATION AND ENFORCEMENT 8.1 Franchise Requirements 12 II II In order to create a Resort Open Air Cafe on public property, the granting of a franchise agreement is required. Franchise Agreements shall be granted only after project data has been properly submitted by the Applicant, reviewed by City Staff and the Resort Advisory Commission, and approved by the City Council of Virginia Beach. The regulations herein are intended to establish the necessary criteria with which the Resort Open Air Cafes shall first comply in order to be eligible for consideration for such a franchise agreement. A Non-refundable fee of one-hundred dollars ($100.00) shall be paid to the City for the processing of an application for a franchise. The City Manager or his designated representative shall not accept any application unless such fee be paid at the time application is filed. City Council may deny or grant a franchise subject to such terms and conditions as City Council may, in its discretion deem proper. Notwithstanding any other provision oflaw, City Council shall deny any franchise request it determines, in its discretion, to be detrimental to the public health, safety, and welfare or interest. Upon approval of the Franchise Agreement, the Applicant shall satisfy Insurance requirements and Franchise Fees, as listed below, prior to beginning construction of the Cafe. 8.2 Submittal and Review Procedures Construction activity is prohibited on Resort Open Air Cafes between May 1 and October 1. Review and approval procedures require a minimum of 3 months; longer if changes to original plans are required. It is strongly suggested the Applicant begin the Cafe Franchise review process in November to allow sufficient time for approval procedures and construction completion before the May 1 st deadline. 8.2.a Preliminary Review (Approximate review time - 1 week) 8.2.b Prior to submitting a Franchise Application, the Applicant shall review the RESORT OPEN AIR CAFE FRANCHISE REGULATIONS, herein, and submit Preliminary project information to the designated Convention and Visitors Bureau Resort Management Office (CVB) representative (757-385-4800) to determine the feasibility of the project. The following are required for the preliminary review: 1. A Survey (if available) of the existing property. 13 2. A rough drawing showing the existing building outline, property lines, and proposed cafe location. 3. Photographs of the proposed cafe site, existing building fa9ade(s), and adjacent property on each side. Data may be submitted in person, or by mail or email. If the project is deemed feasible, the Applicant will be instructed to complete a Cafe Franchise Application. 8.2.c Cafe Franchise Application (Approximate review time - 4 to 8 weeks, plus time for revisions and resubmittal, if required) Applicant shall submit completed Cafe Franchise Application, along with the $100.00 Application Fee, to the designated CVB/ Resort Management representative. Applications for cafe franchises will not be accepted after March 1, preceding the summer season of anticipated operation. No application shall be processed for the year in question that fails to meet the application deadline. The following are required to be submitted, in triplicate (3 copies) along with the application, for review: 8.2.d Physical Survey: Sealed by land surveyor, no older than 90 days. Survey shall show all existing property lines, easements, buildings and other structures, to the curb line and/or edge of boardwalk/connector park, and including public sidewalk showing all obstructions such as light poles, trash receptacles, etc, for the length of the property across it's street (or boardwalk/connector park) frontage. 8.2.e Photographs of the proposed cafe site, existing building fa9ade(s), and adjacent property on each side. 8.2.f Proposed Site Development Plan, including Landscape Plan, where landscape is required. The site plan shall be prepared using a minimum scale of 1" = 1 0'-0" and shall show by name and dimension, proposed and existing walkway systems, and proposed Open Air Cafe, setbacks, minimum clear path on sidewalk between face of cafe and obstructions, access into cafe, and from cafe into attached restaurant, perimeter fence, and table/chair layout. 8.2.g Front & Side Exterior Elevations: Elevations shall be prepared using a minimum scale of 1/4" = 1 '-0" and shall show proposed 14 II II cafe' and fa9ade of existing structure directly adjoining the proposed cafe. A minimum of two elevations are required: one front elevation and one side elevation, dimensioned to show height of vertical elements. All materials shall be identified on drawings. 8.2.h Finish Schedule: Shall include all finish materials proposed for the Open Air Cafe construction including flooring, railing system, canopy and canopy supports, and proposed plant materials. 8.2.i Proposed Fixtures and Furnishings: Images of all proposed furnishings, including tables, chairs, umbrellas, planters, etc. 8.2.j A letter of support from the property owner (if the Applicant is not the property owner) for the cafe addition. 8.2.k Upon receipt of the complete Application package, the CVB/Resort Management Office will forward a copy to the Planning &Design Review subcommittee (PDRC) of the Resort Advisory Commission (RAC) for review and comment at the next scheduled meeting. The CVB representative will assist the Applicant in establishing a review date and time. The Applicant (or representative designated by the Applicant) is encouraged to attend the review session and to bring other supporting drawings, images, etc., if desired. 8.2.1 Upon successful completion of the review, the PDRC will recommend approval and/or provide written review comments indicating required revisions. The recommendations will be forwarded to the next scheduled meeting of the Resort Advisory Commission for a vote to support the Application. If supported, The RAC will convey this recommendation to the City Council. The CVB/Resort Management Office Representative will request that the City Attorney's Office draft an agenda request and ordinance for City Council's approval or denial ofthe Cafe Franchise Agreement. 8.3 Permits and Inspections Review (Approximate approval time - 2 to 4 weeks) 8.3.a If the Cafe project is supported by the RAC, the Applicant is encouraged to submit drawings to the Virginia Beach Department of Permits and Inspections to determine review and permitting procedure. 15 8.3.b Applicant will be required to submit drawings and payment of required review fees. Permits and Inspections will review the plans to determine compliance with applicable Building Codes, and will notify applicant the level of review required. Once approved, the building permit will be held pending approval or denial of the cafe Franchise agreement by City Council. If approved by City Council, applicant may obtain required building permit and any required right of way permit. 8.3.c Approval of the City of Virginia Beach Health Department and (when applicable) the State of Virginia Alcoholic Beverage Control Board is required for operation Note: Cafes connected to a hotel/motel may be required to install a fire suppression sprinkler system if side curtains are installed. Confirm requirements with Permits and Inspections. 8.4 Insurance and Fees 8.4.a Applicant will provide liability insurance coverage not less than one million dollars ($1,000,000) for personal injury and property damage as required. 8.4.b The franchise fee is to be determined on a gross square foot basis/per year, payable to the City of Virginia Beach no later than May of the year in effect. The fees are as follows: Category A: Category B: Category C: Category D: Category E: Category F: Boardwalk Cafe Connector Park Cafe Atlantic Avenue Sidewalk Cafe Atlantic Avenue Side Street Cafe Atlantic Avenue Sidewalk Cafe--15th to 24th Streets Gateway Cafe 2008 2009 2010 2011 2012 Category A 7.65 7.88 8.12 8.37 8.63 3%** Category B 6.56 6.76 6.97 7.18 7.40 3% ** Category C 5.46 5.63 5.80 5.98 6.16 3%** Category D 4.37 4.51 4.65 4.79 4.94 3%** Category E 5.46 5.63 5.80 5.98 6.16 3%** Category F 4.37 4.51 4.65 4.79 4.94 3% ** ** 3% increase each year thereafter 16 II II 8.4.c Prior to commencement of operations the Grantee must execute a bond or letter of credit in favor of the City of Virginia Beach in the amount of ten thousand dollars ($10,000) as determined by the Public Works Department and the Resort Management Office. 8.5 Enforcement 8.5.a The franchise period shall be for one (1) year for the first year of operation. Based upon compliance with these regulations and the Council's desire to continue to allow Open Air Cafes, an extension of the franchise may be authorized by the City Council for up to an additional five (5) year period. 8.5.b During the period in which the franchise is in effect, the Office of the City Manager or his designated representative is to enforce the provisions of the franchise agreement, and is authorized to suspend the agreement if there is a violation of the agreement. 8.5.c In the event the City determines that the Grantee has failed to properly comply with any of the terms or conditions of this Agreement, Grantee shall be given a minimum of twenty-four (24) hours and a maximum of ten (10) calendar days to remedy its non- conformance. The amount of time that Grantee shall be permitted to gain compliance shall be determined in the sole discretion of the City, by its authorized officer, agent, or employee. However, such time shall be reasonable and shall be based upon the level of severity of the noncompliance. If Grantee fails to effect compliance within the time allowed, the City shall have the right to suspend Grantee's operation, in whole or in part, until such time as Grantee shall remedy its non-compliance. 8.5.d No portion of the open air/boardwalk cafes shall open or project beyond the designated perimeters of the cafe area. 8.6 Revocation of Franchise: The franchise agreement shall provide that a Cafe franchise may be revoked by the City Manager whenever the City Manager determines that one of the following conditions has occurred 1. The owner or operator of the establishment has been found guilty of a criminal offense arising from the operation of the establishment; 2. The owner or operator of the establishment has been assessed a civil penalty for violation of any fire, building, zoning, alcoholic beverage control, or health regulation arising from the operation of the establishment; 17 3. The presence of the open-air cafe is causing or contributing to a deterioration of the quality of the pedestrian experience or general environment in the area; 4. The open-air cafe is in violation of any material term of its franchise agreement or the Resort Open Air Cafe Regulations; or 5. The operator has failed to comply with an order of a public safety official of the City directing that the open-air cafe be closed, as provided by Section 5.5.N (3) of the Resort Open Air Cafe Regulations. 8.6.a The franchise agreement shall also provide that the City Manager may suspend the owner or operator's privilege to operate the open air cafe under the franchise pending a final disposition of any criminal charge, alcoholic beverage control violation, or civil infraction arising from the operation of the establishment. 8.7 Effect of Revocation of Franchise: The franchise agreement shall provide that, upon revocation or suspension of a franchise by the City Manager, the owner or operator shall immediately cease operation of the open air cafe and shall remove all tables, chairs and other items located on City property within twenty-four (24) hours of the revocation or suspension. As provided by City ordinance, the failure of the owner or operator to comply with the order of the City Manager revoking or suspending a franchise shall punishable as a misdemeanor. The franchise agreement shall authorize the City Manager to remove or contract for the removal of any tables, chairs, barriers and other items encroaching upon City property and charge the costs thereof to the owner or operator, which costs may be collected as real estate taxes are collected. SECTION 9. DEMOLITION 9.1 If applicant is required to demolish or remove cafe or any portion thereof, the applicant must submit approval plans to the Department of Planning for review. 18 II II ~ ~ ~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing the City Manager to Execute a 3-Year Lease with Andrew Skipper (tla Homegrown Country Market) for Space #11 in the Virginia Beach Farmers Market. MEETING DATE: March 24, 2009 . Background: Andrew Skipper (tla Homegrown Country Market) ("Homegrown Country Market") is a new tenant at the Virginia Beach Farmers Market and would like to lease Space #11 from the City of Virginia Beach (the "City"). Andrew Skipper is affiliated with Skipper Farms, another tenant at the Virginia Beach Farmers Market. . Considerations: The term of the lease is three (3) years and has a sixty (60) day termination clause in the event the City needs the property prior to the termination of the lease for any public purpose. Homegrown Country Market will pay rent in the amount of $517 per month ($6,204 per year). The other lease terms are set forth in the attached Summary of Terms. . Public Information: Advertisement of Public Hearing Advertisement of City Council Agenda . Alternatives: Approve Lease as presented, change conditions of the Lease or deny leasing of the space. . Recommendation: Approval . Attachments: Ordinance Summary of Terms Location Map Recommended Action: Approval Submitting Department/Agency: Department of Agriculture jtT City Manage . \L . ~ lJ'<"'L 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A 3- YEAR LEASE WITH ANDREW SKIPPER (TIA HOMEGROWN COUNTRY MARKET) FOR SPACE #11 IN THE VIRGINIA BEACH FARMERS MARKET WHEREAS, the City of Virginia Beach (the "City") is the owner of The City of Virginia Beach Farmers Market located at the corner of Princess Anne Road and Dam Neck Road in Virginia Beach, Virginia (the "Farmers Market"); WHEREAS, Andrew Skipper (t/a Homegrown Country Market) ("Homegrown Country Market") would like to enter into a new formal lease arrangement with the City for Space #11 in the Farmers Market (the "Premises"); WHEREAS, the Premises will be utilized as a retail establishment selling fresh produce, flowers, wooden crafts, handcrafted and made items, home baked items, cheese products, iron and leather items and seasonal decorative items, and for no other purpose; WHEREAS, Homegrown Country Market has agreed to pay the City $517 per month ($6,204 per year) for the use of the Premises for a three-year term; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Manager is hereby authorized to execute a lease for a term of three (3) years between Andrew Skipper (t/a Homegrown Country Market) and the City, for the Premises in accordance with the Summary of Terms attached hereto and made a part hereof, and such other terms, conditions or modifications as may be acceptable to the City Manager and in a form deemed satisfactory by the City Attorney. Adopted by the Council of the City of Virginia Beach, Virginia on the ,2009. day of APPROVED AS TO LEGAL SUFFICIENCY AND FORM -~~ City Atto ey - APPROVED AS TO CONTENT CA 10994 v :\appliCalionslcitylawprod\cycom32\ WpdocslDO 11IPOOS\OOOO3214.DOC R-1 March 12,2009 II II SUMMARY OF TERMS LEASE FOR SPACE #11 AT THE VIRGINIA BEACH FARMERS MARKET LESSOR: City of Virginia Beach LESSEE: Andrew Skipper (t1a Homegrown Country Market) PREMISES: Space #11 RENT: 36 months: April 1 , 2009 - March 30, 2012 $517 per month ($6,204 per year) TERM: RIGHTS AND RESPONSIBILITIES OF LESSEE: . Use leased space for the retail sale of fresh produce, flowers, wooden crafts, handcrafted and made items, home baked items, cheese products, iron and leather items and seasonal decorative items and for no other purpose. . Maintain leased space, including heating and air conditioning units and/or heat pump units. . Payment of all assessed fees. . Purchase commercial general liability insurance for the Premises with policy limits of not less than $1,000,000 combined single limits per occurrence. . Keep Premises open from 10:00 a.m. to 5:00 p.m. Monday through Saturday, and 12:00 p.m. to 5:00 p.m. on Sunday. However, Lessee will not be open on Wednesdays. RIGHTS AND RESPONSIBILITIES OF CITY: . Maintain common areas of the Property and structural elements of the Premises. . Provide water and sewer. . Provide electrical service unless Lessee has its own account with Dominion Virginia Power. TERMINATION: . After 18 months, either party may terminate by providing the other party sixty (60) days' notice. . City also has special right to terminate if necessary for any public purpose by giving sixty (60) days' written notice. V:lapplicationslcitytawprod\cycom32\Wpdocs\DOO7\P004\OOO71802.DOC II \ L \j ../ \ I. t- ? I! J'r.J ~ 14 ~ ! - ~ ..I " '" 1-1 ~ s Ii :s 'C:o ~ /} .r .r ~ lJ // . t r~ . , / .. 1, ..: ..- ~ ~ ; ! .- :r-- "- ~t"- "~. -" :: . ;';1 ,,-J ~1 r :~ .:-. ;~/- W ;; 1 J ! LJ e: ." ..................,."""""'- ~- . I I ,/ - . 6 _ '~."l1. 'bU;(\'O: II II ,. ~~~D:li ~. " "'<<olI~'" CITY OF VIRGINIA BEACH AGENDA ITEM ""'Ill "'- ~ ITEM: An Ordinance Authorizing the City Manager to Execute a 3-Year Lease with Paul and MaryJean Reid (t/a MaryJean's Bakery) for Space #10 in the Virginia Beach Farmers Market. MEETING DATE: March 24, 2009 . Background: Paul and MaryJean Reid (tla MaryJean's Bakery) ("MaryJean's Bakery") would like to lease Space #10 in the Virginia Beach Farmers Market from the City of Virginia Beach (the "City"). MaryJean's Bakery would be a new tenant at the Virginia Beach Farmers Market. . Considerations: The term of the lease is three (3) years, and the lease has a sixty (60) day termination clause in the event the City needs the property prior to the termination of the lease for any public purpose. MaryJean's Bakery will pay rent in the amount of $593 per month ($7,116 per year). The other lease terms are set forth in the attached Summary of Terms. . Public Information: Advertisement of Public Hearing Advertisement of City Council Agenda . Alternatives: Approve Lease as presented, change conditions of the Lease or deny leasing of the space. . Recommendation: Approval . Attachments: Ordinance Summary of Terms Location Map Recommended Action: Approval Submitting Department/Agency: Department of Agriculture jc.D City Manage. l, ~Il<<-'L 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 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A 3- YEAR LEASE WITH PAUL AND MARY JEAN REID (T/A MARY JEAN'S BAKERY) FOR SPACE #10 IN THE VIRGINIA BEACH FARMERS MARKET WHEREAS, the City of Virginia Beach (the "City") is the owner of The City of Virginia Beach Farmers Market located at the comer of Princess Anne Road and Dam Neck Road in Virginia Beach, Virginia (the "Farmers Market"); WHEREAS, Paul and MaryJean Reid (t1a MaryJean's Bakery) ("MaryJean's Bakery") would like to enter into a new formal lease arrangement with the City for Space #10 in the Farmers Market (the "Premises"); WHEREAS, the Premises will be utilized as a retail establishment selling homemade baked items, breads and specialty cakes to order and for no other purpose; WHEREAS, MaryJean's Bakery has agreed to pay the City $593 per month ($7,116 per year) for the use of the Premises for a three-year term; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Manager is hereby authorized to execute a lease for a term of three (3) years between Paul and MaryJean Reid (t1a MaryJean's Bakery) and the City, for the Premises in accordance with the Summary of Terms attached hereto and made a part hereof, and such other terms, conditions or modifications as may be acceptable to the City Manager and in a form deemed satisfactory by the City Attorney. Adopted by the Council of the City of Virginia Beach, Virginia on the ,2009. day of APPROVED AS TO LEGAL SUFFICIENCY AND FORM ctty~~ APPROVED AS TO CONTENT CA 10993 V:\applications\citylawprod\cycom32\ WpdocslDO II \P005\OOOO32I 3.DOC R-1 March 12,2009 II II SUMMARY OF TERMS LEASE FOR SPACE #10 AT THE VIRGINIA BEACH FARMERS MARKET LESSOR: City of Virginia Beach LESSEE: PREMISES: Paul and MaryJean Reid (Va MaryJean's Bakery) TERM: Space #10 36 months: April 1 ,2009 - March 30, 2012 RENT: $593 per month ($7,116 per year) RIGHTS AND RESPONSIBILITIES OF LESSEE: . Use leased space for the retail sale of homemade baked items, bread, and specialty cakes to order and for no other purpose. . Maintain leased space, including heating and air conditioning units and/or heat pump units. . Payment of all assessed fees. . Purchase commercial general liability insurance for the Premises with policy limits of not less than $1,000,000 combined single limits per occurrence. . Keep Premises open from 10:00 a.m. to 5:00 p.m. Tuesday through Saturday, and from 12:00 p.m. to 5:00 p.m. on Sunday. However, Lessee will not be open on Tuesdays during the months of January, February and March. Lessee will be closed on Mondays. RIGHTS AND RESPONSIBILITIES OF CITY: . Maintain common areas of the Property and structural elements of the Premises. . Provide water and sewer. . Provide electrical service unless Lessee has its own account with Dominion Virginia Power. TERMINATION: . After 18 months, either party may terminate by providing the other party sixty (60) days' notice. . City also has special right to terminate if necessary for any public purpose by giving sixty (60) days' written notice. V :lapplicationslcitylawprod\cycom32\ WpdocslDO lI1POO5\OOOO3215.DOC H q ~ . -J ~J /:1 JJ ,..i .~ 1, ..: .~. ~ : ; .-' W. .~. -. h' ~... .'j ,- f- 1:1 t~il ~ .~ 1 r \ ,I n L t....' ~ r :J .' /} f f- -r-- :::::. \ ,,- ,,- . / "' CJ .-..,.., ~-. 1 # " ... -e-. _ '_."" ,(;U;(\\ u. ... D t=J [~- :J ~J = . L ( < ( D1 I (JII Z o - <) ~ i:L: () 0::: o ~ Cl ..... ...,. ~ II .0 - .... T- ~ X UJ -l <{ (,,) ~ (f.) ...~U (I)...j WZ... ~ ILg~ffis : _o:ol~ ~ z.......Occ N o i5 ~ ....,.:. ~ S:EQ~~ ffi ....x W~ ~ 8~~Q2: i ....o~~t; ~ OO:ocC R OW c. Z U $ Wo:O gi f2 ~ s::: ~ $: a.: :>. .Q ~ (Il C. a, II II i{C:) CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An ordinance to authorize a temporary encroachment into a portion of City property known as Canal No.2 MEETING DATE: March 24, 2009 . Background: Oceana Development, L.P., a Virginia limited partnership and Oceana Development, LLC, a Virginia limited liability company, collectively "Oceana Development", have requested permission to construct and maintain 94' of 18" RCP pipe with related rip rap upon a portion of the City's property known as Canal No.2. . Considerations: City staff has reviewed the requested encroachment and has recommended approval of same, subject to certain conditions outlined in the Agreement. There are similar encroachments that have been authorized into Canal NO.2. As directed by City Council, encroachments adjacent to waterways require the applicant to install a vegetated riparian buffer to help address water quality protection into those waterways. In areas where this is not practical applicants can make cash in-lieu of payments. Oceana Development has agreed to a cash in-lieu payment of $594, to be used to restore buffer areas on other City owned property. . Public Information: Advertisement of City Council Agenda. . Alternatives: Approve the encroachment as presented, deny the encroachment, or add conditions as desired by Council. . Recommendations: Approve the request subject to the terms and conditions of the Agreement. . Attachments: Ordinance, Agreement, Plat, and Location Map Recommended Action: Approval of the ordinance. Submitting Department/Agency: Public Works/Real E~ ~ 4/11: City Manager:~ V-. ~~ 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 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE A. TEMPORARY ENCROACHMENT INTO A PORTION OF CITY PROPERTY KNOWN AS CANAL NO.2 WHEREAS, Oceana Development, L.P., a Virginia limited partnership, and Oceana Development, LLC, a Virginia limited liability company, collectively "Oceana Development", desire to construct and maintain 94' of 18" RCP pipe with related rip rap for drainage purposes upon a portion of City's property known as Canal No.2, located in the City of Virginia Beach, Virginia. WHEREAS, City Council is authorized pursuant to 99 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the City's property subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in 99 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Oceana Development, its assigns and successors in title are authorized to construct and maintain a temporary encroachment for 94' of 18" RCP pipe with related rip rap in a portion of the City's property as shown on the map marked Exhibit "A" and entitled: "EXHIBIT A FOR PARCEL 1-A AND 2, LONDON BRIDGE INDUSTRIAL PARK, PHASE V FOR DRAINAGE ENCROACHMENT VIRGINIA BEACH - VIRGINIA" a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachment is expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and Oceana Development (the "Agreement"), which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED, that the City Manager or his authorized designee is hereby authorized to execute the Agreement; and BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as Oceana Development, L.P., a Virginia limited partnership, Oceana Development, LLC, a Virginia limited liability company, and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the ,2009. day of CA-10996 v :\applicationslcitylawprodlcycom32IWpdocsIO011 IP005100005952.DOC R-1 PREPARED: 03/11/2009 APPROVED AS TO CONTENTS ~c.~~ BLlC WORKS, REAL ESTATE II II APPROVED AS TO LEGAL SUFFICIENCY AND FORM jJJ ~-P- REBECCA D. KUBI , DEPUTY CITY ATTORNEY PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT, made this 9th day of March, 2009, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a mun icipal corporation of the Commonwealth of Virginia, Grantor, "City", and OCEANA DEVELOPMENT, loP., a Virginia limited partnership and OCEANA DEVELOPMENT, LLC, a Virginia limited liability company, collectively Grantee, THEIR ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: WHEREAS, the Grantee is the owner of those certain lots, tracts, or parcels of land designated and described as "PARCEL 1-A and PARCEL 2", as shown on that certain plat entitled: "RESUBDIVISION OF PARCEL 1 LONDON BRIDGE INDRUSTRIAL PARK (RESIDUAL AREA) PHASE V (IN 20060626000966050) AND PROPERTY OF OCEANA DEVELOPMENT, LLC (IN 200409240152551) VIRGINIA BEACH, VIRGINIA" and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 20090204000110560, and being further designated, known, and described as GPIN 1497-60-7030 and GPIN 1496-69-7765; WHEREAS, it is proposed by the Grantee to construct and maintain 94' of 18" RCP pipe with related rip rap for drainage purposes, the "Temporary Encroachment", in the City of Virginia Beach; GPIN'S: 1497-60-7030-0000, 1496-69-7765-0000 and 1496-69-3224-0000 II II WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City property known as Canal NO.2 and being further designated, known, and described as GPIN 1496-69-3224, the "Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), cash in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat entitled: "EXHIBIT A FOR PARCEL 1-A AND 2, LONDON BRIDGE INDUSTRIAL PARK PHASE V FOR DRAINAGE ENCROACHMENT, VIRGINIA BEACH -- VIRGINIA," Said exhibit plat consists of six (6) sheets, copies of which are attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 2 It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall defend, indemnify, and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction with the Encroachment Area (the "Permit"). The Grantee shall, in addition, make a FIVE HUNDRED NINETY-FOUR DOLLARS ($594.00) payment, payable to the City Treasurer, to the Department of Planning as compensation in lieu of establishing and maintaining a riparian buffer on the property of the Grantee. Said payment is equal to the cost of plant material that would have been 3 II II required on the Grantee's property in order to establish the full fifteen (15) feet of riparian buffer restoration required for shoreline encroachments as a standard condition of the City. Said payment will be used to restore buffer areas on other City owned property. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Gra ntee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary 4 Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, the said OCEANA DEVELOPMENT, L.P., a Virginia limited partnership, has caused this Agreement to be executed in its name on its behalf by its general partner, MLJ, INC. a Virginia Corporation, by Jerrold L. Miller, President, with due authority to bind said partnership; and the said OCEANA DEVELOPMENT, LLC has caused this Agreement to be executed by Jerrold L. Miller, Manager of Oceana Development, LLC, a Virginia limited liability company, with due authority to bind said limited liability company. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. (THE REMAINDER OF THIS PAGE WA.S INTENTIONALLY LEFT BLANK) 5 II II CITY OF VIRGINIA BEACH By (SEAL) City Manager/Authorized Designee of the City Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowl edged before me this day of , 2009, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. (SEAL) Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerkl Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2009, by , CITY CLERK/AUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. (SEAL) Notary Public Notary Registration Number: My Commission Expires: 6 OCEANA DEVELOPMENT, L.P., a Virginia limited partnership By: MLJ, INC., a Virginia corporation, its general partner ~A, J N'-- Jerro@t. Miller, President 8T ATE OF €'\) CITY/COUNTY OF \O?\.Sl'YD\ 1 ~, to-wit: The foregoing instrument was acknowledged before me this -9.- day of illMc..\r\ ,2009, by OCEANA DEVELOPMENT, L.P., a Virginia limited ,'\'jiH1i:i;:;/ partnership, by its general partner, MLJ, Inc., a Virginia corporation, by Jerrold L. ~i~rt.?~.:~.~~lil-::,~, . . i~.~'~~....~.~.t~~;~~~{~::~.~; ~ ~~'-, President, on ItS behalf.f .,,~ l ~~':"");"':~'A". 1:, " ~ :J:'$l~:..' ~;-/":-~ ~: =i> .. J- ..,',. 0 ,_.. I)... - ~': "05' .. ~. >-. . '". ~.' Q..-: ~ ~... '0 ~... ~V $ ..... -~... .. ~"....... .~'" 9~.."".~~.~'~ :\.~..:~ '.'\rJ:' />"'5 '^ .' '\! ,..'\ "I ~"" ~ \\\ ~11'trI jllln,\\\\ Notary Registration Number:-.dS~\ +~ My Commission Expires: ~ 61 \ LD\ ~ 51 'ZWTHAMOS ~NIID ClJ III J._"~ IIf'J L . rHl_, ..... _" ....-... . (REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK) 7 II II OCEANA DEVELOPMENT, LLC, a Virginia limited liability company It' J M- Jerro . Miller, Manager STATE OF r\) _ \ " CITY/COUNTY OF ~~~, to-wit: The foregoing instrument was acknowledged before me this q day of \'C'o....rcY) ,2009, by Jerrold L. Miller as Manager of Oceana Development, LLC, Notary Registration Number: dS~ \ ~ My Commission Expires: 3 \~ \ \ 2-D l L- '\ \' i.\ i i i.~ I. , i' 1II11 . ,\\ 0" Q . (III !\" "l W ~,;,:.:~.~ ,': /".. ~ ~\' ....iii;.:-.:di'....~ ....-:,... " ',t"": .- fa" '.~v/,.".. ~~';l~~"j.... .~~....~" .;~ ~.~ -::~: ::;;, lo. ~." Cl'- ..' ~ .l";:-.' ~:;)\~ .... .~;,:::' . 0..: :: = '-'S i~:~"lj;~":: :1 ~,., ,;_. ~ =i -;:; 1.JI'.~'. ~: a:~ ~ ..i\,.., , .: ~.::o ~ Y-.~.' ('J. " .. " ~. 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INV 8.5 - PARCEL i-A AND 2, J.O. 8019 VIRGINIA BEACH - VIRGINIA SCALE: 1 N = 40' FEBRUARY 12, 2009 40 I o I 40 I 80 Feet I GRf!JPHIC SCf!JLE: NDI, L. L. C. BASGIER AND ASSOCIA TES DIVISION ENGINEERS - SURVEYORS -PLANNERS 572 CENTRAL DRIVE, SUITE 103, VIRGINIA BEACH. VIRGINIA 23454 PHONE: (757) 431-2177 FAX: (757) 431-2175 SHEET 4 OF 6 II II ~^' I w Z ....J I o ~ <( :2 ~1 MATCHLlNE SEE SHEET 6 -~~-'~\' \\\\ -- IIII 0""(B-7) I I, III ~~ IIII ~~ ~.~'f ~~~f~" III1 /;;6) C~':~!l~r.tM~U~ ~\~it ~J))I 4 ~~ -- ~ - -::;.,/ ~ \ ~== ESMT. W\ ~ ['y~ ~ SDMH(B-B)- - - I <;j- It) \ I RIM 11.8 ~ f-~' II? \ ' \ "INV 5.75 ~ I (I) vlH(B-5) ~Il) . wi 12.2 ~'" \.\ I . ~O ~ b{ 6.06 ~ ~~~--~~~=-1 w ~ '" ~.,::;--- z~. ~..' -J ./ "'V . ::::J.;r ~. PARCEL 1 -A " - 25 I.N. 2009004000110560 f- 0 ZONED 1-1 -; ~ ~'tt. ~. GPIN: 1497-60-7030 _ ~ 1 ~ ~I ~I ~II? II I-FUTURE7' I I g I o 13 I ~ I I g I ~'tt. ~"I:Y"r - ~ EXHIBIT A FOR PARCEL i-A AND 2, LONDON BRIDGE INDUSTRIAL PARK, PHASE V FOR DRAINAGE ENCROACHMENT VIRGINIA BEACH - VIRGINIA SCALE: I' = 40' FEBRUARY 12, 2009 40 I o I 40 I GRAPHIC SCALE: NDI, L. L. C. BASGIER AND ASSOCIA TES DIVISION ENGINEERS - SURVEYORS - PLANNERS 572 CENTRAL DRIVE, SUITE 103, VIRGINIA BEACH, VIRGINIA 23454 PHONE: (757) 431-2177 FAX: (757) 431-2175 J.O. 8019 80 Feet I SHEET 5 OF 6 II II ----- y ~ / Y ~ v-<- <1)'\ ~<v~ t;Q<J" >:-. o~ ~ bl,C?! l' / ~r:}~~ ~'\. ~ 0<<- ~<(? 0'0 roC?!" ..,.0 O~t;Q. \C?!~ / -S)~ G~~'~ "- / cJ.'1 ,0 \P 18" ES-1 INV 5.10 EC-1, RIP RAP, 11 S.Y. /" / /1 / ) , .,.l? ':'1 S~ V ~' <?-<-'?- V~~ ~<? ' 4!'?- O~ 'V~S <<~ <?..J" ~, / <1)'\ .. '" ------- .. - IIII WL I '- u .J~ .00 ...J<Oo ~ .If'lo o::l-or-- Wr;J::1 ::::0:::;0- 0::11.0<0 0001 u.....J-q-r-- o::WOOl oGjg:: 3=00 o<(~3: Zz 11. L5~l.' U....,. o .. .. ~ pARcEL ~EJtS .. ..~~~~ P.~S~OO96~ {~ '20060~ 69-6f>lP 'i;'Pill: \ 496- .. ~\P 1S'PRIVATE DRAINAGfl fiMT. SDMH(B-10) RIM 12.0 INV ~S9 ~. .. .. .. ... ... II _~":l MATCHLlNE SEE SHEET 5 EXHIBIT A FOR PARCEL i-A AND 2, LONDON BRIDGE INDUSTRIAL PARK, FOR DRAINAGE ENCROACHMENT PHASE V VIRGINIA BEACH - VIRGINIA SCALE: 1* = 40' FEBRUARY 12, 2009 40 I o 40 I I GRAPHIC SCAL[ NDL L.L.C. BASGIER AND ASSOCIATES DIVISION ENGINEERS - SURVEYORS - PLANNERS 572 CENTRAL DRIVE, SUITE 103, VIRGINIA BEACH, VIRGINIA 23454 PHONE: (757) 431-2177 FAX: (757) 431-2175 ao Feet I SHEET 6 OF 6 J.O. 8019 II II CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Establish Capital Project # 3-143, UASI Interoperable Communications Technology Grant - Phase II and to Accept and Appropriate Funds from the U.S. Department of Homeland Security to Capital Project #3- 143 MEETING DATE: March 24, 2009 . Background: In FY 2006-07, Hampton Roads was designated an Urban Area Security Initiative (UASI) region. This allowed Hampton Roads to become eligible for Homeland Security funding. This $7,300,000 grant, coordinated through the Commonwealth of Virginia and Hampton Roads Planning District Commission (HRPDC), allocates $4,000,000 for interoperable communication enhancements. The enhancements consist of the following components and services: . Two (2) additional Hampton Roads radio communication antenna sites . P25 ORION oriented 700/800MHz subscriber radios . Training and exercises . Considerations: To facilitate the implementation of the ORION interoperable communication enhancements, the ComlT/Emergency Communication and Citizen Services Division in conjunction with the ORION Steering Committee, the Hampton Roads Interoperable Communications Advisory Committee (HRICAC) and an existing professional engineering firm, will provide the required support, analysis and project management. The Homeland Security Grant Program (HSGP) award of $4,000,000 requires no local match. . Public Information: Since this grant meets the Capital Improvement Project 1 % threshold, a public hearing will be held on March 10, 2009. . Alternatives: An alternative would be to maintain the present communication system. By continuing with the status quo, optimal regional emergency interoperability would not be achieved; moreover future available funding is uncertain. . Recommendations: The recommendation is for City Council to authorize CIP 3- 143 and appropriate $4,000,000. . Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/Agency: Communications and Information Technology City Manager: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 AN ORDINANCE TO ESTABLISH CAPITAL PROJECT # 3-143, UASIINTEROPERABLE COMMUNICATIONS TECHNOLOGY GRANT - PHASE II AND TO ACCEPT AND APPROPRIATE FUNDS FROM THE U.S. DEPARTMENT OF HOMELAND SECURITY TO CAPITAL PROJECT #3-143 WHEREAS, the U.S. Department of Homeland Security has allocated an Interoperable Communications Technology Grant to the Hampton Roads Planning District Commission; and WHEREAS, the City of Virginia Beach with the Commonwealth of Virginia and the Hampton Roads Planning District Commission (HRPDC) coordinates regional efforts will provide equipment and training for the regional communication network. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL. OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That Capital Project # 3-143, UASI Interoperable Communications Technology Grant - Phase II, is hereby established in the Capital Improvement Program for the purpose of funding regional communication equipment. 2. That $4,000,000 is hereby accepted from the U.S. Department of Homeland Security, with federal revenue increased accordingly, and appropriated to Capital Project # 3-143, UASI Interoperable Communications Technology Grant - Phase II, in the FY 2008-09 Capital Budget. Requires an affinnative vote by a majority of all of the members of City Council. Adopted by the Council of the City of Virginia Beach, Virginia, on the ,2008. day of APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: D~Q~ Management Services ~L~ Ci tt r s Office CA11044 R-2 March 5, 2009 'I K. PLANNING 1. Application of SCOTT and DALE BANNING for a Nonconforminl! Use re alterations and additions to a garage apartment at 114 54th Street. DISTRICT 6 - BEACH RECOMMENDATION: APPROVAL 2. Application of BRUCE and ELIZABETH HEDLUND for a Variance to the Subdivision Ordinance re subdividing the property at 5711 Lancelot Drive into two (2) single-family home sites. DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROVAL 3. Application of ROBERT H. JOHNSON for a Variance to the Subdivision Ordinance re subdividing the property at 1601 Virginia Beach Boulevard into two (2) single-family home sites DISTRCT 6 - BEACH RECOMMENDA TION APPROVAL 4. Application of M CRJERS, LLC for the closure of a portion of Windsor Crescent at 3868 Jefferson Boulevard. DISTRICT 4 - BA YSIDE RECOMMENDATION APPROVAL 5. Application of TOWN CENTER ASSOCIATES, L.L.C. for the closure of a portion of Market Street at the intersection of Market and Columbus Streets DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROVAL 6. Application of TOWN CENTER BLOCK 10 APARTMENTS, L.P., for a Conditional Use Permit re allow a public or private college or university on the first floor of The Cosmopolitan Apartments at 4544 Columbus Street. DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 7. Application of REGENT UNIVERSITY for a Conditional Use Permit re development of two (2) student dormitory buildings and a dining hall at 1352 and 1354 Regent University Drive. DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL 8. Application of STUDIO BAMBOO INSTITUTE OF YOGA for a Conditional Use Permit re yoga at 2865 Lynnhaven Drive. DISTRICT 5 - L YNNHA VEN 9. Application of JULIE COLEMAN - ZEN HOT YOGA for a Conditional Use Permit re yoga at 3352 Princess Anne Road, Suite 901. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL 10. Applications of DANIEL J. BLEVINS at 920 Military Highway: a. Modifications of Condition No. 1 re increase the number of units per acre from 18.5 units to 19 (approved by City Council on October 9, 2007) b. Change of Zoning District from A-24 Apartment District to B-2 Community Business re elimination of split zoning that currently exists DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL 11. Application ofFLORIDAYS, L.L.C., for a Change of Zoning from R-7.5 Residential to Conditional A-24 Apartment District re constructing a sixteen (16) unit townhome-style community at 4303 Bonney Road DISTRICT 5 - L YNNAHVEN RECOMMENDATION APPROVAL 12. Application of HARMONY INVESTMENTS, INC. FOR a Change of Zoning from 1-1 Light Industrial District to Conditional A-36 Apartment District re developing Two Hundred Twenty-Four (224) multi-family dwellings, parking, landscaping, leasing office, clubhouse and pool at 5321 Greenwich Road. DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROVAL II NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the Chamber at City Hall, Municipal Center. 2401 Courthouse Drive, Tuesday, March 24, 2009, at 6:00 p.m. The following applications will be heard: LYNNHAVEN DISTRICT Scott and DaJe Banning Application: Exoansion of a NonconforminJ! Use at 114 54th Street. Town Center Associates. l.l.C. Application: Street Closure. portion of Marl<et Street at the northeast corner of the intersection of Marl<et Street and Columbus Street. Town Center Block 10 Apartments, l.P. Application: Conditional Use Permit for a public or private college or university at 4544 Columbus Street (GPIN 14775445380181) F1oridays. L.L.C. Application: Change of Zoning District Classification from R-7.S Residential to Conditional A-24 Apartment at 4303 Bonney Road. Comprehensive Plan: Primary Residential Area. Purpose: multi-family dweJlings. AICUZ is less than 65. Studio Bamboo Institute of Yoga Application: Conditional Use Permit for a yoga. studio at 2865 Lynnhaven Drive. ' CENTERVILLE DISTRICT Daniel J. Blevins Application: Modification of Conditions (approved by City Council or October 9. 2007j at 920 South Military Highway. AICUZ is less than 65. Daniel J. E31evins Application: Chane:e of Zonine: District Classification from A-24 Apartment to B-2 Community Business at 920 South Military Highway. Comprehensive Plan: Primary Residential Area. Purpose of rezoning: reconfiguration of approved site plan. AICUZ is less than 65. Regent University Application: Conditional Use Permit for student dormitories ano dining facility at 1352/1354 Regent University Drive. AICUZ is less than 65. PRINCESS ANNE DISTRICT Julie Coleman - Zen Hot Yoga Application: Conditional Use Permit for a yoga studio a 3352 Princess Anne Road. Suite 901. AICUZ is 70-75. .. KEMPSVIUE DISTRICT Bruce and ~lizabeth Hedlund Application: Subdivision Variance at 5711 Lancelot Drive. AICUZ is less than 65. Harmony Investments, Inc. Application: Chang:e of Zoning District ClaSSification from\ 1-1 light Industrial to Conditional A-36 Apartmet'lt at 5321 Greenwich Road. Comprehensive Plan: Strategic Growth Area 3 - Newtown. Purpose of rezoning: mUlti-family dwellings. AICUZ is less than 65. BAYSIDE DISTRICT MCRJERS. LLC Application: Street Closure. portion of Jefferson Boulevard at the northwest corner of Jefferson Boulevard and Windsor Crescent and a portion of Windsor Crescent to the north of Jefferson Boulevard. AICUZ is less than 65. SEACH DISTRICT Robert H. Johnson Application: Subdivision Variance at 1601 Virginia Beach Boulevard. AICUZ is greater than 75. All interested citizens are invited to attend. Ruth Hodges Fraser. MMC City Cieri< Copies of the proposed ordinances. resolutions and amendments are on file and may' be examined in the Department of Planning or online at http://www.vlNfOV.com/DO For information call 385-4621- If you are physically dlHbled or visually Impelred and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 381-4303. R"AMn MArr.h 8 &. 15. 2009 19915154 SCOTT AND DALE BANNING .~rntt tc-' Dale Ba~'lninl! 1 ofl ~U \;~ ..~m~ h.- ~ lo~ ~ ~iI~ ~~ \. ~~:~ .. \' \~:ra~lt~U~A~~ re,' 1~ % =--= ~ ~ \;\ ~ ~ ~'t}; ~,~ ~~ ~\R~ ::::: ~ ,~~ ~~ R- 1\\ ~~ ~~ ~ ~ r~ _~ \ (~'~b-5~;j --;~ ~ \, ~ · ~ ~i~ ,~ ,~~ ~I~- l\d~~"~ ~,{~. ~~[\\~~ ~~ ~~ ~rn ~\\I,q "I~ ~ ~:r":: .,;' ,.,.., ~ ~ \. \ )= ~ ~~. ~I:.\ W\UI~~'.\lk' .\,W'-" :::Y~ fr:i:A ~~~~D~ ~~ ~~ ~ ~( ~.z; ,2. ~ 1--/ ~ ~ ~u ~C~a -~l't ~ ~ ~~(\ \~ ~\~ ~!-f \~\A' l\\"'-~~ ~ ~l.& \ \ \ ~j~ l.i ~hr~\ I ~ :--~ """~~, \~~p '\ Map L-4 Mo Not to Scole 1),\ \\C1'(Qt. \Z>l \ -0 \. \ I\\l".... ... \ ~ \\'" J.~ \all \ Non-Conforming Use -------- ""~ " Relevant Information: · Lynnhaven District · The applicant requests alteration and expansion to a nonconforming use. There is a single-family dwelling and a garage apartment on the site, which makes the garage apartment non-conforming since two dwellings may not be located on one zoning lot. · Changes include re-introduction of a garage to the garage apartment, constructed in 1940, and a slight expansion of the second floor of the garage apartment to match the first floor. · AICUZ is 65 - 70 (Sub-Area 1). Recommendation: · Approval , i!J~.t:j~I.~~' .- .;:l~ l;. --. ~ ;J \ ........,.//.. ~~~ ~/ CITY OF VIRGINIA BEACH AGENDA ITEM '" "'- ~ ITEM: A Resolution Authorizing the Expansion of a Nonconforming Use on Property Located at 114 54th Street. MEETING DATE: March 24, 2009 . Background: There is an existing single-family dwelling and a detached garage apartment on the site, both constructed in 1948. The applicant requests approval to make alterations to the detached garage apartment. Garage apartments were allowed by right in this zoning district until August 1985, when the use was removed from the Zoning Ordinance. Since garage apartments are no longer allowed as a permitted or conditional use, the garage apartment is a nonconforming use. Thus, any alteration to the garage apartment requires approval by the City Council. Section 105(d) of the City Zoning Ordinance states that no nonconforming use or structure shall be enlarged, extended, reconstructed, or structurally altered unless the City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity". (. Considerations: The applicant proposes to open a portion of the south (alley- side) wall of the garage apartment to re-establish the garage. At some point in the past, the garage opening was blocked off and the garage was transformed into living space. This modification will provide on-site parking within the building. To minimize or eliminate an existing problem with stormwater intrusion into the garage apartment, the applicant also proposes to elevate the first floor of the garage apartment. Due to this elevation change at ground level, the second floor will need to be raised to maintain adequate ceiling height. The overall height of the structure is approximately 27 feet. The proposed modifications will also consist of an overall renovation of the building, including a small expansion to the second floor to match the first floor area. The modifications will maintain and enhance the building's existing Beach Cottage style. The applicant's design is in keeping with the goals of the North Virginia Beach Civic League, which is to encourage beach-style cottages versus large 'boxy' duplexes. . Recommendations: Staff finds that the proposed alterations are reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non-conforming use. The request, therefore, is acceptable with the following conditions. SCOTT AND DALE BANNING Page 2 of 2 1. The modifications to the garage apartment shall substantially adhere to the submitted site plan. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 2. The modifications to the garage apartment shall substantially adhere to the submitted building plans. Said building plans have been exhibited to the City of Virginia Beach City Council and are on file in the Planning Department. . Attachments: Resolution, Staff Review and Disclosure Statement Recommended Action: Approval. Submitting Department/Agency: Planning Department City Manage~ '{.. . ~tM, 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 "I A RESOLUTION AUTHORIZING THE ENLARGEMENT OF A NONCONFORMING USE ON PROPERTY LOCATED AT 114 54th STREET WHEREAS, Scott and Dale Banning (hereinafter the "Applicants") have made application to the City Council for authorization to enlarge a nonconforming use by making additions to and alterations of their garage apartment on a lot or parcel of land having the address of 114 54th Street, in the R-5R Residential Zoning District; WHEREAS, the said use is nonconforming, as the parcel contains a single-family dwelling and a garage apartment which were constructed prior to the adoption of zoning regulations prohibiting garage apartments in the R-5R Residential Zoning District; and WHEREAS, pursuant to Section 105 of the city Zoning Ordinance, the enlargement of a nonconforming use is unlawful in the absence of a resolution of the City Council authorizing such action upon a finding that the proposed use, as enlarged, will be equally appropriate or more appropriate to the zoning district than is the existing use; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Council hereby finds that the proposed use, as enlarged, will be equally appropriate to the district as is the existing use. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the enlargement of the nonconforming use is hereby authorized, upon the following conditions: 1. The modifications to the garage apartment shall substantially adhere to the submitted site plan. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 2. The modifications to the garage apartment shall substantially adhere to the submitted building plans. Said building plans have been exhibited to the City of Virginia Beach City Council and are on file in the Planning Department. of Adopted by the Council of the City of Virginia Beach, Virginia, on the ,2009. day APP~OVED AS TO LEGAL ~UFFI'NCY: JJ) JJ~jI{l/~ ' City Attorney's Office March 24, 2009 Public Hearing PROPERTY OWNER I APPLICANT: SCOTT & DALE BANNING STAFF PLANNER: Leslie Bonilla REQUEST: Alteration and Exoansion of a Nonconforming Use (garage apartment) ADDRESS I DESCRIPTION: 114 54th Street GPIN: 2418894910 ELECTION DISTRICT: L YNNHAVEN SITE SIZE: 6,625 square feet AICUZ: 65-70 dB DNL Sub-Area 1 SUMMARY OF REQUEST There is an existing single-family dwelling and a detached garage apartment on the site, both constructed in 1948. The applicant requests approval to make alterations to the detached garage apartment. Garage apartments were allowed by right in this zoning district until August 1985, when the use was removed from the Zoning Ordinance. Since garage apartments are no longer allowed as a permitted or conditional use, the garage apartment is a nonconforming use. Thus, any alteration to the garage apartment requires approval by the City Council. Additionally, since the structures were constructed in 1948, they do not conform to the R-5R Residential Resort District regulations currently in effect. The structures exceed the permitted lot coverage by 79 square feet and the permitted impervious coverage by approximately 169 square feet. The garage apartment encroaches into the eastern side setback and the rear setback. The applicant proposes to open a portion of the south (alley-side) wall of the garage apartment to re- establish the garage. At some point in the past, the garage opening was blocked off and the garage was SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 1 transformed into living space. This modification will provide on-site parking within the building. To minimize or eliminate an existing problem with stormwater intrusion into the garage apartment, the applicant also proposes to elevate the first floor of the garage apartment. Due to this elevation change at ground level, the second floor will need to be raised to maintain adequate ceiling height. The overall height of the structure is approximately 27 feet. The proposed modifications will also consist of an overall renovation of the building, including a small expansion to the second floor to match the first floor area. The modifications will maintain and enhance the building's existing Beach Cottage style. LAND USE AND ZONING INFORMATION EXISTING LAND USE: A single-family dwelling and garage apartment currently exist on the site. The structures were constructed in 1948. SURROUNDING lAND USE AND ZONING: North: South: East: West: NATURAL RESOURCE AND CULTURAL FEATURES: . 54th Street . Across 54th Street are single-family, duplex, and garage apartment dwellings I R-5R Residential Resort . An alley . Across the alley are single-family, duplex, and garage apartment dwellings I R-5R Residential Resort . Single-family and garage apartment dwellings I R-5R Residential Resort . Single-family dwellings I R-5R Residential Resort The site is developed with a single-family dwelling, a garage apartment, and landscaping. The dwelling and garage apartment were built in 1948, and are typical the uBeach Cottage" style popular at the time. Garage apartments were allowed by right in this area until August 1985 when the use was removed from the Zoning Ordinance. There are no known significant natural resources or cultural features associated with the site. IMPACT ON CITY SERVICES There is no impact to City Services. The Traffic Engineering Division of Public Works notes that in accordance with the driveway policy tor the resort and beach areas, the driveway apron for the garage apartment cannot exceed twenty (20) feet in width at the public right-ot-way. SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 2 "I EVALUATION AND RECOMMENDATION Staff recommends approval of this request. Section 105(d) of the City Zoning Ordinance states that no nonconforming use or structure shall be enlarged, extended, reconstructed, or structurally altered unless the City Council finds that the proposed use will be "equally appropriate or more appropriate to the district than is the existing nonconformity" . The City Zoning Ordinance defines 'garage apartment' as "a structure above a private garage in which provision is made for one (1) dwelling unit, requiring an interior stairway to the second floor, provided that the living area does not exceed eight hundred (800) square feet of floor area and the height does not exceed twenty-eight (28) feet." The proposed alteration of re-opening the garage reduces the square footage of living area within the existing nonconforming use. The applicant's design of the structure maintains a beach cottage style and is in keeping with the goals of the North Virginia Beach Civic League, which is to encourage beach-style cottages versus large 'boxy' duplexes. Staff finds that the proposed alterations are reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non-conforming use. The request, therefore, is acceptable with the following conditions. CONDITIONS 1. The modifications to the garage apartment shall substantially adhere to the submitted site plan. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 2. The modifications to the garage apartment shall substantially adhere to the submitted building plans. Said building plans have been exhibited to the City of Virginia Beach City Council and are on file in the Planning Department. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 3 AERIAL OF SITE LoeA TION SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 4 \f,'. . .. -: ,.--- '~\ -r-' :~. '.'{ .' . ... " ' . . . ; ..~ .. I'- ..\ \ .i . \ . . . \ i' .,' . i . \\ . . ..: i I . .;, \ \ . . . ! \ . . . l 1\.. ' \ \. : -. . \ . ~ . 1 ., ,,' . . .' " \ . . '" :', " II:' .:. .: - -:"'\'.1' \ - ~.;\,\ .....--..... . \ . \ . \ .. \ . \ . \ . ~ \ .' ;'::.., :'> ',:. ". :,>~'. '. \J7 jL." ---' <' . . !: '.1 .j ..~ ., --- ' .....--- *. \ - .; .,. " .,......, ~:'., .~\ r ~ .....f-.......;...-:.--_-\. , \ \ '-'.J'V_ \ i. ~ \ \ L--~~ .)..~- \ . \ .. \ . \ \ . \ PROPOSED S\TE pLAN - SCOTT & DALE BANNiNG March 24, 2009 C\ty counc\\ Meeting page 5 o ::y ~.l , ~. .~ACtloH .~ .- ",,'t . ~ . '(. ..' " .j" . ! ,: 0 . 0_' . . .:~ HOIe:\\-\ ~y,tCfIot4 '~ .. - ..:.,' /.-~-- .:..... yo ,-._ -.... . '!,' I . r'''. "." l..'~ " "7" . . . " ., I . I .' ..1. ' ,~ . -1 . '.-'" . ; ,I / . ." fBl ,""', .' '''.t'l'F.. .' - p' ~ '-'''' . r.. I'. ".....;. \~ > 'm"""- ,'., ',' ----~- -',..'... . ... ... PROPOSED GARAGE APARTMENT BUILDING ELEVATIONS , . . ' ::; , '. .. .. ~..." ,.l ....:,: SCOTT & DALE BANNING March 24, 2009 City Council Me~ting P~e6 L.-~ EJ1 \~,..sae.""'1tON V+ . I ::-D . ., ~ t:-"'=' :t1~, , It', " ;b'l~~,ll'li i'DL,f I J . , [" " .11 r J ',\ ,"f r ,'f , ., ~" 1 .~..t J 1.. I' ~', (.L 1:J:' )~;,1;::'""" _ ""I _._,,,.~J " .. > :), .:' ,~-," . PROPOSED GARAGE APARTMENT BUILDING ELEVATIONS :.' .. " '" ~~oN f.t SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 7 "'...........~-".._~""...--- , J!,;/l j.4,t:> ,~ ---.---- lby- ,4'wM;tT fl1a;,r fLt:aDP- y~ - 1:),!1.'1. ... -.... ... ,~- L !;:.I+q-W+) ~n\.l:l. J "'" .. 'jpo"f(.. .,. 9i' UV(,MW ~,,~ !It PROPOSED GARAGE APARTMENT FLOOR PLANS SCOTT & DALE BANNING March 24, 2009 City Council Me~ing Page 8 Map L-4 /I1op Not to Scole ~\\G~'ii' \ 0 '" \.....\ ~~\~'~ ~~f' ~~ ~.~ \\~ ~~ ~~ 1 ~\,~O ":i ,.T:: ~ ~JC ~- ~'~'~ oJte 'I~~~ ,\_ <D ~ .'8, \{ .~ ~ ~ ~~f~~~ ~~~ ~ i5'~ D:.AI ~ \.f:~~'" ,'" ~lll \. I ('1\;.~ It\, ,\ ~ Scott 4~ Dale Banninl! :~ ~ IL"'~ ~ .6P~ \ \ ~ ~ r i _, ~ A \. \ 1\' i p <? u -Are, ~ I ~ , 0 ~ ~ -: ~l. ~ l~~ -_\: ~~) ~ll" ~ l I H '-'"'" t::-:: r~ ~ l ._,..,~~::"" " 0 ~~.I.t -J1 ~\ 0.... ~ .,. \ .....p . ,'I \ (\ , ~ -- ~ \~~ ~ \~ \ ~ ~.' ~~~...\ ~ ,( '.)u - CJ ~\~~ .: )q ~C'~ t;J~~~r / ~~~ ~ ~~\~ ~~.~ E M~).- ~:::: ~ ~~' t' Il\\~ ~ ;;.-~~P1, ~'\&. \ "'. l\ \,...: a:~"\ 'I' ~\'" ~ ~~ 11 J.o '\ \ NOll-Conforming Use # DATE DESCRIPTION ACTION 1 2-12-02 Alterations to a Nonconformina Use Granted 2 4-23-02 Alterations to a Nonconformina Use Granted 3 1-26-93 Alterations to a Nonconformina Use Withdrawn 4 8-14-01 Alterations to a Nonconformina Use Granted 5 9-24-91 Alterations to a Nonconformina Use Denied 6 10-29-02 Alterations to a Nonconformina Use Granted 7 1 0-28-08 Alterations to a Nonconformina Use Granted 8 8-12-08 Alterations to a Nonconformina Use Granted 9 1 0-11-05 Alterations to a Nonconforming Use Granted 8-14-01 Alterations to a Nonconformina Use Granted 10 7 -1 0-01 Street Closure Granted ZONING HISTORY SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 9 z o I I ~ U I I ~ ~ ~ ~ ~ ;:::J t.::) z ~ o J:Z.4 Z o u . Z o Z II DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated )3f..9anization, complete the following: l2J List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach /ist if necessary) 2. List all businesses that have a parent-subsidiary' or affiliated business entitl relationship with the applicant: (Attach list if necessary) r:::( Check here if the applicant is NOT a corporation, partnership. firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other 011ncorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2. List all businesses that have a parent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) e:( Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. , & 2 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes _ No If yes, what is the name of the official or employee and the nature of their interest? Non-Conforming Use ApplIcatIon Page 8 of 9 Re.,sed 713107 DISCLOSURE STATEMENT SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 10 II DISCLOSURE STATEMENT II ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Q \ C I,{J r d ftJ.--'\ ~ p.. , 1\ l V fJ L ~V \~ v e y (' r-.:2 I \.\; I \ \ \ (1 \'"Y"'l J~ \ \ n \0 .'lel &x-z...t(;,Y"> \/\k::::CL';) I \f\.c~~ u......'"'\ S+V~1 C.\-1 C'JI-\ 1 "Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act. Va. Code S 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be con sidered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets: the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis: or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code S 2,2-3101 CERTIFICATION: I certify that the information contained herein is true and accurate I understand that. upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled publiC hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. <r'" ,., ~-=-- - ~~.'-_/ ~~~ ~..- ,. Applicant's Signature .,q. !()(l\ ( C: _ c, R:o. ~ "'-'- -I....(J Property Owner's Signature (if different than applidant) \~Q \ c. ~O n,'\ I 1Y1 Print Name ., l~ n ~.-.J(C"" ~-.:x? (,,', I Jl( t' Print Name {I Non-Conforming Use ApplICatiOn Page 9 019 Revised 7/3/07 z o I I !< u I I ~ ~ ~ ~ c:I:} ;:::J t.::) Z ~ o ~ Z o u . Z o Z DISCLOSURE STATEMENT SCOTT & DALE BANNING March 24, 2009 City Council Meeting Page 11 NORm VIRGINIA BEACH CIVIC LEAGUE ZONING REVIEW COMMIITEE MEMO Members of the Planning Commission Members of City Council City of Virginia Beach Sanuday,~h14,2009 Re: Application by the Banning Residence for a modifiaation of a Non-Conforming Use at 114B - 54th Street. The North Virginia Beach Civic League's (NVBCL) Zoning Review Committee has reviewed the merits of this request and "take no exception" to the modification of a non-confonning as presented. We feel that due to the filet that the dwelling was constructed prior to the to the current zoning ordnance, the additions to the existing structure are in keeping with the surrounding properties, and that the expansion does not pose any detennent to adjacent properties, the request has merit. We would prefer this type of development vs. potentially a larger duplex. Should there be any questions please contact me at 431- 1041 x 16. Sincerely, Billy William D. Almond, ASLA Chair, NVBCL Zoning Review Committee II' 'I - 45 - .Item V-L.I. ITEM 57947 PLANNING Upon motion by Vice Mayor Jones, seconded by Councilman Dyer. City Council ALLOWED WITHDRAWAL of THE Petition of BRUCE AND ELIZABETH HEDLUND for a Variance to the Subdivision Ordinance re subdividing their property for an additional family home: Petition of BRUCE & ELIZABETH HEDLUND. Subdivision Variance. 571 J Lance/ot Drive, District 2 - Kempsville V oring: J 0-0 (By Consent) Council Members Voting Aye: 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 Wi/son and James L. Wood Council Members Voting Nay: None Council Members Absent: William R. "Bill" DeSleph Augusl26,2008 111,1 - 44- Item V-L ITEM 57946 PLANNING Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE MOTION. Items 1 (WITHDRA WAL). 2. 5 and 6a of the PLANNING BY CONSENT AGENDA. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorj. John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: William R. "Bill" DeSteph August 26. 2008 V.L. PLANNING 1. BRUCE AND ELIZABETH HEDLUND 2. DANNY COLLIER J. CYPRESS CREEK, L.L.e. 4. BUDDHIST EDUCATION CENTER OF AMERICA, INe. 5. LEONILO O. GLORIA 6. CITY OF VIRGINIA BEACH a. City Zoning Ordinance b. City Zoning Ordinance c. City Zoning Ordinance - 43 - ITEM 57945 'I 111'1 VARIANCE CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT MODIFICATION OF CONDITIONS to extend compliance re a religious facility (Approved August 28, 2007) MODIFICATION OF CONDITION No.5. re a sign for senior and disabled housing AMEND Section 108 of the City Zoning Ordinance (CZO) re posting of signs giving notice of certain zoning applications. AMEND regulations pertaining to communication towers and building- mounted antennas AMEND Appendix F - Chesapeake Bay Preservation Area Ordinance. re \ inclusion of water surface area of a swimming pool in the calculation of / mpervious cover. August 26. 2008 III II - 26- AGE N DA REV IE W S E S S ION ITEM # 5793/ BY CONSENSUS, the following items shall compose the CONSENT AGENDA: L PLANNING J. Petition of BRUCE and ELIZABETH HEDLUND for a Variance to the Subdivision Ordinance re subdividing their property for an additional family home at 5711 Lance/at Drive. DISTRICT 2 - KEMPSVILLE 2. Application of DANNY COLLIER for a Conditional Use Permit re automotive sales, service and storage al1605 Pleasure House Road. DISTRICT 4 - BA YSIDE 5. Application of LEONILO O. GLORIA for a Modification of Condition No.5 re a sign for the senior and disabled housing (approved by City Council on February 22. 2005) at J 236 Kempsville Road. DISTRICT 2 - KEMPSVILLE 6. Application of the City of Virginia Beach: a. Ordinance /0 AMEND See/ion 108 of/he City Zoning Ordinance (CZO) re posting of signs giving nolice of certain zoning applications. Item L. J. (BRUCE and ELIZABETH HEDLUND) shall be WITHDRA WN, BY CONSENT. August 26. 2008 BRUCE AND ELIZABETH HEDLUND o Subdivision Vclriance Relevant Information: o Kempsville District o Applicant requests a Subdivision Variance to allow division of the existing 1.8-acre site into two lots. o Site can be subdivided by-right into five lots on a cul-de-sac; however, the applicant desires only the two lots, which will share a driveway. o AICUZ is Less than 65. Evaluation and Recommendation: o Planning Staff recommended approval o Planning Commission recommends approval (10-0) o There was opposition. ~~~ :S-~~~"',''''''~ a- '.. ~~t.' /;;.1. '" \'it (6: ' \s, \'.\~ :') ..\~-- III ~"'Y'~Y' ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: BRUCE & ELIZABETH HEDLUND, Subdivision Variance. 5711 Lancelot Drive. AICUZ is less than 65. KEMPSVILLE DISTRICT. MEETING DATE: March 24, 2009 . Background: The applicants own an existing lot consisting of 1.8417 acres. The lot is zoned R- 10 Residential District. Based on the zoning regulations of the R-10 District, the site could be subdivided into five (5) lots on a cul-de-sac. It is the intent of the applicant, however, to subdivide the property into two (2) parcels for the development of two (2) single-family home sites. . Considerations: The property currently has an existing single-family home located on the easternmost side. This house will remain. One additional home will be built on the proposed western parce. The proposed home will access the site using the drive for the existing home. The two lots far exceed the minimum lot size of 10,000 square feet for the R-10 Residential District. Due to the unusual shape of the lot and the fact that the existing lot frontage is 114.04 feet, an even division of the property does not meet the required lot frontage of 80 feet for each lot. Instead, each proposed lot is 57.02 feet in width along Lancelot Drive. Staff concludes that the authorization of this variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. While the property does have sufficient land area for more than two parcels, the lot frontage requirement is deficient for two parcels with only 57.02 feet for each parcel. As the parcel is large and irregularly shaped with an unusual depth, Staff is supportive of the variance and the creation of one (1 ) additional lot beyond the existing for a total of two (2) lots. There was opposition to the request. . Recommendations: The Planning Commission passed a motion by a recorded vote of 10-0 to approve this request with the following conditions: 1. The final plat shall show no more than two (2) parcels, as depicted on the plan entitled, "PRELIMINARY SUBDIVISION OF LOT 8C" dated 03/05/08 Bruce & Elizabeth Hedlund Page 2 of 2 prepared by Rood Land Surveying, P.C. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 2. A single shared drive shall serve both lots. 3. Trees on the site shall be preserved to the greatest extent possible. 4. The exterior faCfade of the home to be constructed on proposed Lot 8C-1 shall be substantially consistent with one of the three rendered residential building elevations submitted with the application. 5. The existing house to be remodeled on proposed Lot 8C-2 shall be reoriented so the front of the house faces the lot line between proposed lot 8C-1 and Lot BC-2. The house on proposed Lot BC-2, when renovated, shall be compatible with the design of the house built on Lot BC-1 . 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~ k . ~1Wt.. #21 February 11, 2009 Public Hearing APPLICANT I PROPERTY OWNER: BRUCE & ELIZABETH HEDLUND STAFF PLANNER: Karen Prochilo REQUEST: Subdivision Variance to Section 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance. ADDRESS I DESCRIPTION: 5711 Lancelot Drive GPIN: 1456972108 ELECTION DISTRICT: KEMPSVILLE SUMMARY OF REQUEST Existing Lot: The existing lot is 1.8417 acres. SITE SIZE: 1.8417 acres AICUZ: Less than 65 dB DNL Proposed Lots: It is the intent of the applicant to subdivide the property into two (2) parcels for the development of two (2) single-family home sites. The property currently has an existing single-family home located on the easternmost side. This home will remain. One additional home will be built on the westernmost parcel once subdivided. The proposed home will access the site using the drive for the existing home. The two lots far exceed the minimum lot size of 10,000 square feet for the R-10 Residential District. Due to the unusual shape of the lot and the fact that the existing lot frontage is 114.04 feet, an even division of the property does not meet the required lot frontage of 80 feet for each lot. Instead, each proposed lot is 57.02 feet in width along Lancelot Drive. Item Lot 8C-1 Lot 8C-2 Lot Width in feet 80 57.02* 57.02* Lot Area in sauare feet 10,000 40,114 40,114 *Variance required BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Single-family dwelling. SURROUNDING LAND USE AND ZONING: North: · Across Lancelot Drive, single-family dwellings I R-10 Residential District · Single-family dwellings I R-10 Residential District · Single-family dwellings I R-10 Residential District · Single-family dwellings / R-10 Residential District South: East: West: NATURAL RESOURCE AND CULTURAL FEATURES: A portion of the property is located within the Chesapeake Bay Watershed. There are no special restrictions. The lot is wooded with several mature trees. There are no cultural features associated with this site. AICUZ: The site is in an AICUZ of less than 65 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Lancelot Drive in the vicinity of this application is considered a two-lane undivided local street. There is a Capital Improvement Program (CIP) project slated in the vicinity of this area. Avalon Avenue - Avalon Woods (CIP 2-035) is for the construction of safety improvements along Avalon Avenue from Providence Road to Normandy Avenue. These improvements include a sidewalk, roadway widening, and necessary incidental infrastructure improvements. The project is not expected to impact the subject property. TRAFFIC: Street Name Present I Present Capacity Generated Traffic Volume Lancelot Drive No existing counts are available for this Existing Land Use ~ - 10 roadway. ADT Proposed Land Use 3 - 20 ADT Average Dally Tnps 2 as defined by one single-family residence 3 as defined by two Single-family residences The subdivision variance does not create any adverse impacts to the existing roadway network. WATER: There is an existing 8-inch City water main along Lancelot Drive. Lot 8C-1 must connect to City water. Lot 8C-2 is already connected. BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 2 SEWER: There is an existing 8-inch City gravity main along Lancelot Drive. Lot 8C-1 must connect to City sanitary sewer. The lots cross between two pump station areas. Analysis of Pump Stations #414, #419 and the sanitary sewer collection system is required to ensure future flows can be accommodated. Lot 8C-2 is already connected. FIRE DEPARTMENT: Fire Department has no comments at this time. VIRGINIA NATURAL GAS: VNG has no existing facilities or easements within the property to be subdivided at this location. EVALUATION AND RECOMMENDATION Evaluation: Section 9.3 of the Subdivision Ordinance states: No variance shall be authorized by the Council unless it finds that: A. Strict application of the ordinance would produce undue hardship. B. The authorization of the variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. C. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. D. The hardship is created by the physical character of the property, including dimensions and topography, or by other extraordinary situation or condition of such property, or by the use or development of property immediately adjacent thereto. Personal or self- inflicted hardship shall not be considered as grounds for the issuance of a variance. E. The hardship is created by the requirements of the zoning district in which the property is located at the time the variance is authorized whenever such variance pertains to provisions of the Zoning Ordinance incorporated by reference in this ordinance. Comprehensive Plan: The Comprehensive Plan recognizes this site to be within a Primary Residential Area. The land use planning policies and principles for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. The established type, size and relationship of land use in and around this neighborhood should serve as a guide when considering future development. Recommendation: Staff recommends approval of this request for two (2) single-family parcels on the 1.8417 acre property. The authorization of this variance will not be of substantial detriment to adjacent property, and the character of the neighborhood will not be adversely affected. While the property does have sufficient land area for more than two parcels, the lot frontage requirement is deficient for two parcels with only 57.02 feet for each parcel. As the parcel is large and irregularly shaped with an unusual depth, Staff is BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 3 supportive of the variance and the creation of one (1) additional lot beyond the existing for a total of two (2) lots. CONDITIONS 1. The final plat shall show no more than two (2) parcels, as depicted on the plan entitled, "PRELIMINARY SUBDIVISION OF LOT 8C" dated 03/05/08 prepared by Rood Land Surveying, P.C. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 2. A sinole shared drive shall serve both lots. 3. Trees on the site shall be oreserved to the oreatest extent oossible. 4. The aooearance of the home to be constructed on orooosed Lot 8C-1 shall be substantiallv consistent with one of the three rendered residential buildino elevations submitted with the aoolication. 5. The existino house to be remodeled on orooosed Lot 8C-2 shall be reoriented so the front of the house faces the lot line between orooosed lot 8C-1 and Lot 8C-2. This existino house on orooosed Lot 8C-2 when renovated shall be comoatible with the desion of the home built on Lot 8C-1 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. BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 4 MCWUMENT ltGENO; PIN (F) / OJ~. (f') -0- PIN FOUNO/OAA.l HOlE: FOUND PIN (5) I I),H. (5) ~ f>IN SET IORtt..l HOLE SET 1.100. (f) -0- CONCRE.TE MONl.'NfNT fOONO MON. (5) -a- CONCRETE MONUMENT SET (REFER TO N01t 1) .~~~~ SV6Ol\tSON Of SEC1KlN 1. WOOOS ot iNALOH (1i.B. 70. PC. 50) r:.,f, ~Oj..." I ~ ~/ I fr)OJ ~ i 60 " /0 I -.1f' I ~ I..... I GPlN:1+56-81-S377 cI':'~ : I;; LOT "S" (tole. 9~ PC. 53) GPlH: 1+58-&7-8095 PARCEl. ;. (M.S. 174, PG, m CPlN: 1456-97-1319 LOT 8C-1 rrP" (F) !!/ ~ ll.r Q 0' " t. it) ItS!t "'H;.JRlt '" (JCfIJ <' ~ ~""(fl LOT Be (INS!. I 200103111000368990 GPIN: 145&-91-2:08-??oo / PlH (F)..J o d : t I t...! SOt~ 3j "Oll'-44- VI 188.13' PROPOSED LOT UNE S 01'26'.,. W 187.28' ~~~ ~. 200'011 e<~" . '''5t-S~''~l .. wJo.. ~ 8"!-'--.- crJA / g/~ . ... ell . Iii l 11 ...; i ~.~ : !. LOC SCJ LOT eC-2 ra J '" 1'HE UNOERSICHED l%ATlF"t THAT TH IT APPEARS ON nus Pl..AT CONFOOI RE<AA.ATlClHS RElAllNG TO THE SUE IS ACCOROlNGl't APPROW. 8'1' sue UHOERS!CMEl) DO HOT COliN AS . 1HE 8OtRfOAAY. STREET Oft OTHER AmOVED; OlRECTcA ~ PUBUC wo QTY OF 'MGlNlA BEACH, APPROVED: OIRECTOR OF Pl.4JHNG. QTY OF WlQNI;. BEACH, 200.00- MQN, (,.)~ 20 · l!J~ I ~l I ~~ I ~!!!T ...~~ 9gtb N~ .... :) 1:1 i8 III I~ ~~6' P I Ii Ii Ii II I la~ in~ ~to.ml ..~ -'8!2 - r'l,+ a ~: ;:)a t- z: cq ~& .. '" ..: 1Il ~ AVALON AVENUE (VARlASU: RM (M.a. 18. Po. 52) AREA DATA PARCEl. $WAR! FEET ACREAG€ LOT 8C-1 114 0.9109 1 lOT 80-2 114 0..9208 1 toTAl. SITE 228 1.8417 ~g .... li:i a: ..... PROPOSED SUBDIVSION PLAT BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 5 BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 6 o $lJbdivisioll Vclriance No zoning history to report. ZONING HISTORY BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 7 z o I I ~ U I I ~ t::L-t ~ ~ u > z o I I CI':) E Cl ~ ~ CI':) ~ DISCLOSURE STATEMENT ij APPLICANT DISCLOSURE If the applicant is a corporation, partnership. firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers. members, trustees, partners. etc. below: (Attach list if necessary) Bruce and Elizabeth Hedlund 2. List all businesses that have a parent-subsidiary 1 or affiliated business entitl relationship with the applicant: (Attach list if necessary) Erl Check here if the applicant is NOT a corporation, partnership, firm. business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership. firm, business, or other unincorporated organization. complete the following: 1. List the property owner name followed by the names of all officers, members, trustees. partr'!ers. etc. below: (Attach list if necessary) 2. List all businesses that have a parent-subsidiaryl or affiliated business entity2 relationship with the applicant: (Attach list if necessary) 9' Check here if the property owner is NOT a corporation. partnership, firm, business, or other unincorporated organization. 1 & 2 See next page for footnotes Subdivision Variance Application Page lOaf 11 Revised: 7/11/06 BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 8 !"''' ~"'l'f II DISCLOSURE STATEMENT I ADDITIONAL DISCLOSURES list all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) "I'" . .... ',Y -1..,- .J .. -~ l I ) /' .~'~l 0 ~), ~:_":';-{i\V~.! \.:. 1 "Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code 9 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent- subSidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and local Government Conflict of Interests Act. Va. Code 9 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (POStcard) that the application has been scheduled for public hearing. I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled pUblic hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of p& ~tograPj ~n~iew ~Site for purposes of processing and evaluating this application. f; .L5/~{7<:'_ :BrUCe. B.lled/v. ncL S(I. l;/~'1JL j/~~~...,L ;:'Itzalu'fh Hed(r, 11 L pli nt's Signature Print Name Property Owner's Signature (if different than applicant) Print Name Subdivision Variance Application Page 11 of 11 Revised 7/11/06 z o I I ~ U I I ....:1 =-- ~ ~ U > Z o I I ~ fE ~ c:Q ;:::J ~ BRUCE & ELIZABETH HEDLUND Agenda Item 21 Page 9 ( ( Item #21 Bruce and Elizabeth Hedlund Subdivision Ordinance 5711 Lancelot Drive District 2 Kempsville February 11,2009 REGULAR Donald Horsley: The next item is item 21, Bruce and Elizabeth Hedlund. An application of Bruce and Elizabeth Hedlund for an appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision of Bruce and Elizabeth Hedlund. The property is located at 5711 Lancelot Drive, District 2, Kempsville. Eddie Bourdon: Thank you Mr. Horsley. Madame Chair. For the record, my name is Eddie Bourdon and I'm a Virginia Beach attorney. It is my privilege to come before the Commission this afternoon representing Bruce and Elizabeth Hedlund, who are here with me this afternoon. The Hedlunds resides at 5717 Lance10t Drive in the Avalon Terrace neighborhood. Their home is right here (pointing to PowerPoint) on this lot that you see. They also own this adjacent 1.84 acre parcel of land that has frontage on Lancelot Drive of 114 feet. That property is zoned R -10 Residential District, which permits subdivision of the property as 10,000 square foot lots as a matter of right. They Hedlunds have lived in this Avalon Terrace community for almost a quarter century, since 1984. Also with the Hedlunds this afternoon are their daughter.in-law Andrea, who is married to their son Bradley, and the Hedlund's daughter, Jessica Jackson. Jessica and her husband Chris, who is a Police Office with the City of Norfolk. Jessica and Chris would be building the one new house this application would facilitate. Jessica and Chris have an existing three year old son Cody and a child on the way. They are currently residing with the Hedlunds in their home. And the new home that Jessica and Chris would like to construct would be back in this area behind the Hedlund's existing residence. Their son Bradley and his wife would live in the existing home located here on this parcel. The property would be divided as you see here. Each parcel would be over 40,000 square feet lot size, four times what is the permitted lot size in the R-l 0 zoning district. This way the whole family would be residing in close proximity to each other, all on lots that are larger than 10,000 square feet in size. In the case of the two new parcels, they are far larger than 10,000 square feet in size with one new house. I've passed around a plan and I'll comment on it. While those are going around, we provided a couple of renderings of what the one potential new home would look like to be constructed on the one directly behind the Hedlund's house. There would be one driveway coming off the 114 feet of frontage on Lancelot Drive. Could you put the zoning map back up? Thank you. You will notice to the west the pattern of development with two cul-de-sacs and lots that are surrounding those cul-de-sacs. What I passed out to you is a depiction of what can be done with this piece of property, this heavily wooded very attractive piece of property, could be subdivided with a similar cul-de-sac utilizing the rear part of the Hedlund's existing property, which is greater than 10,000 square feet in size, so that you could actually build with a new road, taking down all the trees, five lots. A total of five new houses could be built on this Item #21 Bruce and Elizabeth Hedlund Page 2 property as a matter of right with a new cul-de-sac. This is not what the Hedlunds desire to do. Their desire is to have their family live on the property, a total of two lots and a shared driveway. From a standpoint of preserving the trees and preserving the character of the area, they believe this is a very appropriate way to develop the property, and will certainly not be detrimental to the character of the community. In that regard again, if you could put the zoning map back up? Over on Avalon Avenue, to the east you see flag lots here. This is zoned R-30, which these lots would be larger than the flag lots of these two R-30 lots. There are other similar flag lot configurations in the area especially in the R-30 section. Again, these proposed lots would be larger than those. I just passed that out to illustrate for you what they are actually doing with this application is developin~ the property to a far lesser extent then would be permitted so they could retain the trees surrounding their property, and could have a high quality oflife. Not to say that the other houses on the other cul-de-sacs aren't nice but certainly this will be a little more private then the folks who adjoin their property. We're not aware of any of the adjoiners who are opposed to the application. We have provided you with a petition as signed by 59 of the neighboring residents in support of this application. Eleven of those signatures are from folks who had previously signed a petition in opposition before they knew truly and factually what the facts of this application were. We wanted to make sure you were aware of it. This body has previously heard this application and recommended it for approval as staff has. When the opposition persisted, the Hedlund's looked into doing exactly what I have passed out to you. But at the end of the day rather than spending the money to build a road and selling lots off, which is what you have to do to pay for the road, and then winding up with their children living in two houses among five new houses, they just had to go back and say look, this is just a nicer way of developing our property instead of having a cul-de-sac and five houses. That is why we are here with this application. Again, we'll go forward to City Council since the application did not because they took a step back and considered developing it in that fashion. At the end of the day they felt and lot of their neighbors encouraged them that what they're proposing new is far, far nicer to develop than the way it could be developed. Thank you all very much. Janice Anderson: Thank you. Are there any questions of Mr. Bourdon? Henry Livas: Are you saying that they withdrew the application at City Council? Eddie Bourdon: We withdrew before going to City Council because they were pursuing that plan, which I actually encouraged them. Henry Livas: Suggested that they do. Eddie Bourdon: I'm guilty. That is absolutely right. When they came to see me, and after this body recommended approval and they had the opposition persist, I said why don't you just do this (pointing to cul.de-sac plan)? Financially it might have been preferable but aesthetically it wasn't. They were encouraged by a lot of their neighbors once they understood what the facts were and what they (the Hedlunds) were trying to do. They (the neighbors) much preferred them to build one new house on this property as opposed to tearing the trees down and building five. \ Item #21 Bruce and Elizabeth Hedlund Page 3 Henry Livas: Okay. Janice Anderson: Are there any other questions? Thank you. Donald Horsley: Our first speaker in opposition is Tom Luckman. Janice Anderson: Welcome. Tom Luckman: Thank you. Madame Chairman and members of the Planning Commission, my name is Tom Luckman. I reside at 508 Gwain Court. Janice Anderson: Will you use that little pointer? Tom Luckman: That is my home right there. Janice Anderson: Right there. Thank you. Tom Luckman: I represent the families that live in sight line or that touched the property being recommended. We've lived there for longer than 1 Y2 years. Most of the members that live in that community have lived there and have been there a long time. Mr. Hedlund . indicated that he has been in the neighborhood for approximately 25 years. I'm 38 (years living in the neighborhood) and most of the people in the area are between 25 and 38. We love the neighborhood. These people here have all signed our petition. Our problem is and a majority of the people along here, our problem is that this lot had recently been one lot. The house was demolished and three homes have been put there. This was originally, prior to the Hedlund's buying the property, this was a property with one house. They purchased this home (the one the Hedlunds live in now), I think about two years ago with an adjacent lot. They fairly quickly sold off the two lots, two minimal lots. (Pointing with the pointer, he shows several lots) This lot is now completely built. This one has the foundation. This one is now occupied and has been sold. This one is completed and for sale. This one has been sold. What we have is where we had two homes one here and one here (pointing to PowerPoint), we now have, as you can see six homes. Our community and the reason why we live in this area is because it has large lots. Those lots are treed. We are pretty well vacant trees here now. That is another item that the Planning Commission should really think about. I've talked to our Councilmember about R-lOs and communities like ours really destroy it. Because what you do is when the price ofland goes up it is cheap to come in and tear a house out that has been there and put another couple of houses there. Although there is an old flag lot over here, we don't believe, we couldn't do anything about these. But we can object to this because it requires a variance. We are strong in that feeling and I'll be followed by another gentlemen. Now the civic league has not taken action on this. We wrote Council. We met with our Council member on two occasions with staff. We have but it doesn't matter if we have support with Councilor not for your write up. But the problem is very real to us and these homeowners that touch it. W e had this homeowner here who owns all this property here. And these are all brand new. What we now have is more of the ticky-tacky Virginia Beach where everything is crowded in. It is just a density issue for us. I can't speak Item #21 Bruce and Elizabeth Hedlund Page 4 for the other people who will be coming to talk to you but our area, for those people that live and touch and can see this, it is just a density issue. Janice Anderson: So you would like to see it single family? T om Luckman: This house here faces Avalon Avenue and a fence has been constructed around this property now. We got vinyl fences around this now. Trees have been removed. It's the character ofthe neighborhood. That is one of the issues. That is our main issue, is the character of the neighborhood is changing. We're just seeing the trees taken down and more lots and more density. Janice Anderson: Okay. Tom Luckman: Yes sir. Donald Horsley: What's the square footage of your lot? Tom Luckman: My lot. I'm not sure, maybe a 1/3 of an acre. Donald Horsley: So, you're in the 10,000 to 12,000 square foot range yourself? Tom Luckman: No sir. My lot is probably twice the size of the lots that are here. Donald Horsley: Okay. But it likes a lot of being 40,000, right? Tom Luckman: Yes sir. But it has major trees. It fits in the community. What we have is a major change because we have more construction going down here doing the same thing. They are tearing houses up and coming in and putting in three. We have it at the end of this comer down here. Right now it is happening. There is construction going on down there. Donald Horsley: I can understand what you're saying about that but this is a larger piece of property that is going to be divided into two large lots is what you say your community really likes. It is going to have more trees left on it because he is going to build two houses instead of five. What you are saying you all like but you don't like it. Tom Luckman: No sir. We've seen enough density. The Hedlund's sold the property, this property here, and these two. We have no animosity towards them. It was their property. These are two minimum lots. They have taken the character of the neighborhood right there. This lot was one lot. This one lot and this was one lot. They have combined it into three. They have combined those three as one. Ours is the quality of the neighborhood. Janice Anderson: Mr. Luckman. Mr. Redmond has a question for you. \ David Redmond: I'm sorry sir. I forgot your name. Item #21 Bruce and Elizabeth Hedlund Page 5 ( Tom Luckman: Tom Luckman. David Redmond: Okay. Mr. Luckman. What do you define as your neighborhood because I'm looking at this and what I see is an awful lot of houses there, very few of which to my naked eye are in lots larger that these two houses would be on this piece of property that is nearly two-acres, what is your neighborhood by your definition? Tom Luckman: I'm representing the group that lived in this area here, that are not new. Now, we have obviously with new houses we got new people. They bought based upon those houses. They did not know the neighborhood as it's been for the last 34 years. David Redmond: Okay. Yeah. You understand my point? Tom Luckman: Yes sir. David Redmond: You're talking about two houses on almost two acres here. They are going to be very large lots by any objective standard. And by what I see, when we go and see what constitutes a neighborhood, if you define it as the four houses or six houses that are near me, or which I represent or which happen, or whatever kind of standard, you can come up. You can slice it and dice it in all sorts of different ways but that looks to me like a pretty well developed residential area with many, many, many lots. t . Tom Luckman: You're correct. David Redmond: They are smaller than what we're talking about here. Tom Luckman: The speaker in opposition following me, we took action because the civic league was not prepared to do that. And they (the civic league) haven't been able to do it since the new sign went up. But, there was a committee from the civic league to look into this. Mr. Murden will talk about the greater neighborhood because we didn't know if there was any action being taken. We, the homeowners that touch this property, so we took action. David Redmond: Show me again where your house is? Tom Luckman: I'm right here. David Redmond: Okay. Tom Luckham: I've been elected as spokesman for the court and the other people. Okay? I'm representing the people who have sight lines to this property or touch the property. Janice Anderson: Mr. Luckman, Mr. Strange has a question for you. Tom Luckman: Yes sir. \ Item #21 Bruce and Elizabeth Hedlund Page 6 Joseph Strange: How do you feel about this development relative to the by-right, what they can do by-right? Tom Luckman: Yes sir. That is another story. We can't do anything about that. That is what that is. We will fight that but there is nothing we can do about that. There is nothing we can do when they took this and did this. There was nothing we could do when they did that. Joseph Strange: I guess my question is relatively speaking what would you rather have. Would you rather have the by-right or would you rather have this? Tom Luckman: Well, do you have a road? Right now we have a gravel path going back into the wooded area to serve this home here. We see some picture of some fairly nice homes but there isn't anything in there that says which one of those homes would be build ifin fact we had to have another house there. Those are conceptual. Joseph Strange: So, are you concerned about how many houses or the types of homes that are being built? Tom Luckman: We are concerned about the density that we are now faced with based upon people meeting zoning requirements. We could not speak out against what was going on to our neighborhood before because it was all "legal". This requires a variance. We're here to tell you that it is enough. Joseph Strange: So, you're not really concerned about the type of housing but that they're just putting them in there. Tom Luckman: Yes sir. Joseph Strange: Okay. I just want to make sure that I understood it. Janice Anderson: Are there any other questions for Mr. Luckman. Thank you sir. Donald Horsley: Ray Murden. Ray Murden: Good afternoon ladies and gentleman. I live at 509 Lancelot Court, if you like for me to show you? Janice Anderson: Yes please. Thank you sir. Ray Murden: Right here (pointing to PowerPoint). Janice Anderson: Thank you. ( Item #21 Bruce and Elizabeth Hedlund Page 7 Ray Murden: Your question and I've heard you ask. I represent the people of Avalon Terrace, Avalon Village and Woods of Avalon, which encompasses the neighborhood. Are there any questions on that? The petition, I saw it before when they wanted to have this done the first time. You asked questions, we were not prepared. At this particular point, we went after that and we prepared a petition. The petition was presented to Planning Department and for City Council on August 18,2008. On that day, Harry Diezel called the Hedlund's attorney, and advised them that he notified the Council that he was going to support the petition that we submitted with the number of people that we had. We're against the variance because it doesn't meet the code. We want to see an 80 foot frontage. That is what the code requires. That is exactly what we want. You have over 200 signatures for that. That would include those of Mr. Luckman's, 80 foot road frontage. That is what it calls for and by golly that is what we want. We're tired of seeing the things that have happened in the past. We're not worried about happened in the past, we're talking about present and future concerns. And that is from people that have lived in this neighborhood in excess of 50 years. Janice Anderson: You can finish up your thought sir. Ray Murden: You have our view (petition) and the City Council has already been apprized of it. Planning was well aware of this, I think they agreed with you all. They did not put it in (the petition) the package they submitted to the people and I found out why. The bottom line is we're for it. I'm not the type of person that bargains well. We want the 80 foot. That is ( what we want. That is what these people want. \ Janice Anderson: Thank you Mr. Murden. Are there any questions? Go ahead Don, Donald Horsley: So, you're saying that you prefer a plan similar to this wh(:re he could have the 80 foot frontage and put a street in would 80 foot frontage? Ray Murden: You have the 80 foot frontage and put the houses in there. Donald Horsley: You would have 80 foot in front of all five houses. So you would prefer this? Ray Murden: No. The 80 foot road frontage, which means, it has to have a cul-de-sac go in there. Donald Horsley: Right. Ray Murden: Fine. Donald Horsley: And then each lot would have the 80 foot frontage on that cul-de-sac. You would prefer that? You would prefer adding five more houses? I ", Ray Murden: If they are going to do it, then do it right. Item #21 Bruce and Elizabeth Hedlund Page 8 Donald Horsley: Okay. Henry Livas: That was my question also. You would prefer this? Ray Murden: That is what it comes down too that is what we want. That is the way I put it out and that by God is the way we want to see it. Thank you all very much. Janice Anderson: Thank you. Are there anymore speakers? Donald Horsley: Yes. Dr. Brian Matney. Brian Matney: Madame Chair and ladies and gentlemen of the Planning Commission. Good afternoon, I'm Brian Matney, 523 Avalon Avenue. I do want to begin by thanking you for speaking to you so briefly today. I come before you this afternoon as a member of a family that has owned a ten acre tract ofland in the Avalon Terrace, Woods of Avalon neighborhood since 1941. That tract is in the 500 block of Avalon Avenue. It is noted and is immediately adjacent and adjoining the applicant's property. Donald Horsley: Do you want to show us? Brian Matney: Yes sir. About right here (pointing to PowerPoint). \ Janice Anderson: That one. Donald Horsley: The whole kit and caboodle. Janice Anderson: The whole thing. Okay. Brian Matney: I grew up there beginning in 1965 and recently returned to make my home there with my wife and two sons in 2006. I must admit that I'm concerned about the character aesthetics and quality of my community, and how they might be compromised by the granting of their request that is before you today. As you know, approximately 'l2 acre of the original 2.2 parcel next door to me and the liberal frontage that it afforded was sold by the applicant by-right. It was divided into two quarter acre segments and what was once my neighborhoods front yard. Thus, nonetheless today, although blessed by a grandfather, and a father with a lovely and spacious tract of land and open space I adore, I currently open my front door and look upon the diagonal to my neighborhood's backyard. The existing Circa 1957 (house) on the applicant's property to this day, at this hour, and as we speak, it's front door, its front porch, its picture window, and its garage directly face the backyards of two homes, one that was recently constructed as well as one which its ground was broken just in the past few weeks. I might add and as suggested earlier that on other lots sold recently in Avalon Terrace that are also R-I0, there has been a bona-fide effort through the raising of the existing home to at least orient or reconfigure the new structures in a way that appears to be tasteful and purposeful and by design. Any further compromise regarding this particular proposal including granting the variance requested for the required frontage on Lancelot Item #21 Bruce and Elizabeth Hedlund Page 9 ( Drive, which you can see is perpendicular to Avalon, in my mind and in my opinion as a member of a family again, who has been in the neighborhood for close to 70 years will only further sacrifice the quality of a very nice neighborhood. A neighborhood that I like many of my contemporaries and of my age group have chosen to return to raise their families as well. As always, I appreciate your consideration of my remarks today, and I thank you. As we in Avalon Terrace and Woods of Avalon respectfully request that this request be denied. Thank you. Janice Anderson: Thank you. Are there any questions of Dr. Matney? Donald Horsley: Where is your home? Brian Matney: Yes sir. I live right here. Donald Horsley: Okay. Brian Matney: A home that my grandfather built in 1941. My parents built this home in 1973. The Ferris' lived in this home, which was also originally my grandfather's land was built Circa 1957. These are the two lots that have been developed. So, as you can see as I step out of my front door, even though I am blessed with this beautiful expanse, I look in to someone's backyard. I can tell you what television program they are watching. They had to put curtains up in the restroom for privacy. I look directly into their backyard. So, again, I know that can be done by-right and I respect people's property rights. I do. But it is in the context of, and I think this request for a variance needs to be put into a broader context of what has been previously done, and the impact it has upon at least my daily living adjacent to the property. Janice Anderson: Do you have any questions: Mr. Strange? Joseph Strange: I guess I can ask you the same question that I asked the other two. Would you rather see this or would you rather see the by-right? Brian Matney: I think, of course, selfishly I rather it would stay clean and pristine, but that is not what it is about. I know there are property rights. I think something was mentioned earlier, and I tried to allude to it in my comments. I want whatever is done either as a one structure or five to look purposeful, to look tasteful, to look like it was by design. Currently, with no disrespect to anyone, the way it is structured now you've got the front of a home (showing an example). I'm the front. Ms. Anderson is one neighbor. Ms. Anderson is one neighbor backyard and Mr. Horsley is my other neighbor in the backyard. Again, it doesn't seem to be purposeful or by designed. It does appear to be kind of just sort of thrown together, for lack of a better term. So, again whether it is one or five, I would like for it to be tastefully done and purposely done so that it doesn't look like an after thought in a nice neighborhood. \ I , III Item #21 Bruce and Elizabeth Hedlund Page 10 Joseph Strange: So, you're not really opposed to; it you just want to make sure it is done properly. Brian Matney: I understand folks' property rights and I appreciate them and respect that. My major concern try not to be selfish here that nothing be done, is that it again, it be done in a tasteful matter whether it be one, two, three, four or the maximum of five. Joseph Strange: Alright. Thank you. Brian Matney: Yes sir. Janice Anderson: Go ahead. Ronald Ripley: Can I ask a question? Ifthere were two built back there and there was a shared driveway so you only had one drive way back there, would that make a difference to you? You would still honor the 80 foot minimum. \ Brian Matney: I think what concerns me is that again, it may be something that is water under the bridge. Maybe it is an incurable defect with which I now have to live unfortunately looking into someone else's backyard. I don't know what is within the jurisdiction of this body but it certainly would be nice if there was some kind of reconfiguration of the existing structure again, so the front is not facing the backyard. So, again if that home were to be built, I do appreciate that the Hedlund's have a desire to build a home for their daughter, I don't want it to be where the back of the house is treated as the front yard with a shared driveway with a new home. Janice Anderson: We visited the site. We know exactly what you're talking about. Yes. Thank you. Hopefully the applicant can address that. Is there any other questions? Go ahead. David Redmond: Just real quickly. I don't want to drag you out too long. In the red hatch- mark R -10 that structure, you said that was originally part of your grandfather's land? Brian Matney: That is correct. Yes sir. He owned another 10 acres immediately adjacent that he bought in the late 30s early 40s. David Redmond: When did he sell that? Brian Matney: That piece of property would have been sold probably in the mid to late 50s would be my guess, long before I was born. David Redmond: So in what way is that anymore sort of morally defensible that the Hedlunds selling the properties that you say don't meet the same standards. Brian Matney: I think there was again, and I can't speak for Dr. Glen Matney when he sold the property a long time ago but I would imagine that given the fact that he knew that he Item #21 Bruce and Elizabeth Hedlund Page 11 moved there in 1941 for a bit of an oasis from working in downtown Norfolk, which was the country there, Princess Anne county before annexation, I rather suspect that when that property was sold he had, if nothing else, a gentleman's agreement that what would be built there and what was ultimately crafted by Jeanne and Eddie Farrerk who are now both deceased in that 57 structure would not be compromised. David Redmond: It just strikes me as not entirely consistent that it would be permissible for your fore fathers to sell a portion of their land and for all I know, there might have been people who objected to it at the time. So for crying out loud, these are 25 acres. You want to carve off ten? Brian Matney: Those folks, again there was some orientation of the property which did not impinge upon, to me, the rights of all property owners looking directly into somebody else's back yard. David Redmond: I guess you can't talk to your grandfather abut that? Brian Matney: Unfortunately no. David Redmond: I don't know if we should punish these folks for doing precisely what any land owner in this part of Virginia Beach did going back for a very, very long time. Brian Matney: I understand exactly what you're saying. And I understand R-I0. I just wish there was some distinction between the development ofR-10 property that is clean and pristine versus that which previously has a structure on it. And even though that impinges upon the quality of what's built there after, there seems to be very little difference to that unfortunatel y. Janice Anderson: Thank you Dr. Matney. Brian Matney: Yes ma'am. Janice Anderson: There are no other speakers in opposition? Donald Horsley: No ma'am. Janice Anderson: Mr. Bourdon. \ Eddie Bourdon: Thank you Madam Chairman. I appreciate the opportunity to respond. I appreciate the comments that were put forth. First of all, the house that Dr. Matney, and I thought that Dr. Matney's comments, I appreciate frankly all of them. The house is there. There is every intent to completely remodel the existing house, but that wasn't going to be done with the potential that they would be putting in a cul-de-sac with the five houses that you see, in which case, that house was going to be tom down. In which case, there will be two houses that back up to Dr. Matney's property. The existing house will be remodeled so I I I II Item #21 Bruce and Elizabeth Hedlund Page 12 that it doesn't face the back of the fence if this approved, and it would be significantly upgraded in its quality to go along with the beautiful home that my clients will build on the other lot, which you saw three elevations. We have no problem whatsoever with a condition that the house that is built on the western most lot will be in substantial conformance with one of those elevations and that the existing home will be remodeled in a fashion so that it will also be consistent with the standard as far as building materials and architecture of what you see there. Even though this is a smaller home than is likely to be built on the 40,000 square foot lot of the west of this proposed two lot subdivision. There are a couple of things that I will say. This is all about there being a lesser density and not a great density. Like the folks that signed the petition that we provided, once they realized that the other petition was in essence, which I heard I think his name was Mr. Murden emotionally state that he represented all those 280 something people, I dare say that they didn't know that petition wanted to see a cul-de-sac and five 10,000 square foot lots built here versus one new home and one remodeled home on a total of two 40,000 square foot lots. We have all been doing this a long time and frankly, what shocked the jeepers out of me is if all those people that signed that petition knew they were signing a petition for a cul-de-sac and five new homes on 10,000 square foot lots. What we are doing as you can tell is highly quality, low density. The situation on that comer referred to, is nothing they (the Hedlunds) had anything to do with. The last thing that I will suggest to you is that Mr. Murden is mistaken. Honestly so, as to the assertion that I had a conversation with or that Mr. Diezel had a conversation with -me at some point in time telling me there was no support for this application on City Council's part. What their position is will depend at the time they hear it and the time they vote on it. It has never been presented to them and that statement was not relayed to me at any point in time. This is, we believe a very, very good application for all the reasons that you heard and is a lessening of density and not an increase in density by any stretch of the imagination. We have no problem with the condition that there will only be one driveway to serve both homes coming off of Lancelot Drive, if you wish to add that as a condition. Eugene Crabtree: That is what I was going to ask you. If the one driveway, as Mr. Ripley says will alleviate that less than 80 foot frontage, then it will be an 80 foot frontage, and it will be a conforming lot and not a non-conforming lot at that time. Eddie Bourdon: It will have the appearance as such. You have a 114 feet of frontage but the property will be subdivided into two lots, each of which has 57 feet of frontage, but no home will be built in that area where the frontage is. It is only in the back of the lot where the width far exceeds what is required and there would be one shared driveway with a ingress/egress easement over it so that driveway will always serve those two homes. Eugene Crabtree: Then it will become a conforming lot instead of non-conforming lots? Eddie Bourdon: No. It would have that appearance because you have that one driveway on 114 feet of frontage. The only way that I can create 80 foot wide lots with 80 feet of frontage on a public right-of-way is to build a road. That frankly can be done but then you wind up with a cul-de-sac and five 10,000 square foot lots with five new homes on it. That existing house, Dr. Matney understandably has concerns about will with this project be completely Item #21 Bruce and Elizabeth Hedlund Page 13 renovated but because that wasn't and still isn't a sure thing, they are not going to spend the money to renovate it because they may have to tear it down, and there will basically be two houses where that house is located. David Redmond: Well let's be clear too. That may well satisfy the good doctor but I'm sensing some opposition here that was sort of set in stone that for which there might not be solution whatsoever. I don't know if that necessarily solves the problem of the opposition or the illusion. Eugene Crabtree: The opposition is not going to change. Eddie Bourdon: There are four property owners whose property abuts this property and the Hedlund's property who are in support of the application. Weare not aware of any other than Dr. Matney who has ever come forth and expressed opposition to the application. Janice Anderson: Ron has a question. Ronald Ripley: No. I don't have a question. Janice Anderson: Oh you don't. I thought you waved your hand. I'm sorry. Jay. Jay Bernas: Since you mentioned that they were considering renovating that existing house, because one of my concerns when we went on that van trip was it does look kind of goofy. Goofy that is like an engineering term. It is kind of backwards. It kind oflike you need to seem to pick it up and just turn it around. Would you be comfortable adding that as a condition? Eddie Bourdon: Yes. We would have no problem with a condition that the existing house would be reoriented so that it faces inward as opposed to facing the back of the fences where it faces now. Jay Bernas: Yes. I think hopefully that will address some of their concerns that it just looks out of place. It kind of sticks up at you when you go out there. It's kind oflike what happened? Eddie Bourdon: Dr. Matney's comments, I completely agree with pretty much with what he said. Jay Bernas: And the other one I would like to add that you preserve as many trees on the property as possible since it is a heavily treed lot and hopefully that will go a long way. Eddie Bourdon: Yes. Gladly. I totally agree. That is the intent of the application. We can add that condition. i I I II Item #21 Bruce and Elizabeth Hedlund Page 14 Eugene Crabtree: One more question Mr. Bourdon? Does the entire family currently live on the property or does two families live on the property? Eddie Bourdon: Just two. I'm sorry. I apologize, two in the Hedlund's home. Eugene Crabtree: The reason I asked that is because the actual density of the number of people is not going to increase until the new baby is born. Eddie Bourdon: That is 100 percent correct. I was thinking about the Hedlund's existing residence. You are absolutely correct Mr. Crabtree. Janice Anderson: Eddie, I have one more question. Like Jay said, I think it is helpful with the renovation of the existing home to flip it so that the front of the house faces the inward property line. Could you possibly kind of guess where the proposed house is going to be situated. Is it going to face the inward property line? I don't know ifit matters. Eddie Bourdon: The proposed house is going to be built here (pointing to PowerPoint). I'm confident that it is going to be built so that it is facing in the direction of Lancelot Drive. There are planning having it parallel to Lancelot or on angle to Lancelot? Elizabeth Hedlund: Probably parallel to Lancelot, I would say. Eddie Bourdon: So the front of the house would basically be in this configuration running from east to west basically. Janice Anderson: Okay. Donald Horsley: Is there an existing driveway? Eddie Bourdon: There is a gravel driveway. Donald Horsley: I'm talking about it goes out to the other street? Eddie Bourdon: Use to be. It is not anymore. Donald Horsley: So that is gone now? Eddie Bourdon: Yes. Donald Horsley: Okay. They are using totally the internal driveway. Eddie Bourdon: Yes sir. Donald Horsley: So, there is no access to the other street to Avalon? Item #21 Bruce and Elizabeth Hedlund Page 15 Eddie Bourdon: To Avalon. No sir. Donald Horsley: Okay. Janice Anderson: Are there any other questions? Thank you. Eddie Bourdon: I'll be happy to add those conditions. Henry Livas: I don't have any questions. I would like to make a motion that we approve the variance. I think that is obviously the better way to go rather than having five additional homes, and we will satisfy the doctor if we rotate that house around. Otherwise, as far as density is concerned this is a much better solution, and I think promoting families living in the same area is also a positive. That is not in any regulation or anything. I t.hink we should approve it. Janice Anderson: Okay. Mr. Livas. In your motion, would you like to add a condition that Jay had suggested with regard that a condition for the existing house be flipped around and the front of the house will face in the internal property line? Henry Livas: Yes, and the trees too. . Janice Anderson: And retain as much trees. ( Henry Livas: They have agreed to both. Janice Anderson: Okay. Is there a second to that motion? David Redmond: I'll second it. Janice Anderson: A second by Dave. Ronald Ripley: Would you be willing to add the shared driveway concept so they share one driveway back on their sites? Henry Livas: Yes. I don't know if that is totally necessary. That would be okay too. They've agreed to that too. Janice Anderson: The revised flipped house, save trees and shared driveway. We got a first and a second but before we have any further discussion. Yes. Stephen White: What about the appearance of the homes. I think Mr. Bourdon mentioned that his clients would be glad to ensure that the houses would be substantially similar to the elevation drawings that have been submitted. \ Eddie Bourdon: The new home will be. The existing home we are willing to stipulate that the exterior building materials and quality will be comparable but the ability to duplicate or I I . I II Item #21 Bruce and Elizabeth Hedlund Page 16 renovate the architecture will not be quite as clear but we will raise the standard as far as the exterior is concerned. The new one will be consistent with one of those three elevations. Janice Anderson: Do you have any objection to that being a condition? Eddie Bourdon: We do not. Janice Anderson: Thank you. Eddie Bourdon: We do not object to any of the others. Janice Anderson: Okay. The third condition would be elevation of the new home to be built on lot 8-C-l would be similar to those presented. Is that part of your motion? Henry Livas: Yes. Janice Anderson: I believe Mr. Murden, do you have new information? Mr. Strange has agreed to sponsor you. Ray Murden: I apologize for dragging the saddle a little bit. l. Janice Anderson: That is okay. Ray Murden: Mr. Ripley made a statement there and everybody wants to seem to go with it. We will still have a minimum of 80 foot road frontage and they're going to have a shared driveway. That's an entrance on egress? Is that correct? We're talking about a 18 foot wide driveway? Janice Anderson: Yes sir. There would be one driveway but there would be two lots. Ray Murden: Where is it? Janice Anderson: Can you go back to the subdivision plat please? Right there. Ray Murden: You want to put a driveway here and a driveway there? Donald Horsley: No. Janice Anderson: No. There will be one shared one. Ray Murden: Right down the middle so to speak going left and right. You all have a good day. Donald Horsley: Do you agree with that sir? Item #21 Bruce and Elizabeth Hedlund Page 17 Ray Murden: We can live with that. Janice Anderson: Thank you. Ray Murden: As long as there is 80 foot or more on the front. That was always the thing. Janice Anderson: You don't want two driveways on there, only one driveway. Ray Murden: Right, because the other one is not really a driveway. It is not approved by the City. It is just a whatever. But the bottom line is just to correct myself if I was in error. . When I gave Mr. Diezel my copy he said he would support and would notify the Council of his opinion. And, he was supposed to have talked to you. I can't help that. Janice Anderson: Okay. Ray Murden: Alright. ( Janice Anderson: Thank you Mr. Murden. We appreciate it. Is there any other discussion? We have a motion. I just want to make a comment. That I believe that the civic league and the individuals out there are not really upset with the density of these two lots, it's the development that went around this parcel. Altogether, I think it could have been developed into more than four houses but I don't have any objection with this. I think it is definitely better than what they could do by-right which has caused the problem with the neighborhood to begin with. Donald Horsley: I agree. I don't think they really understood the shared driveway aspect of this whole thing either. I think and I was sitting here scratching my head, I've been around a long time and this is kind of the first time that more is less and less is more or vice versa. You know it is kind of hard for me to figure but I think, we just took the shared driveway as a given. I guess but that is probably something we needed to explain, Mr. Bourdon a little bit better, but I agree. Janice Anderson: Are there any further comments? We're ready for the vote, AYE 10 NAY 0 ABSO ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS LIVAS AYE REDMOND AYE ( RIPLEY AYE RUSSO AYE ABSENT 1 ABSENT I I ( I II Item #21 Bruce and Elizabeth Hedlund Page 18 STRANGE AYE Ed Weeden: By a vote of 10-0, the Board has approved the application of Bruce and Elizabeth Hedlund with the changes to the conditions. Eddie Bourdon: Thank you all very much. Janice Anderson: Thank you. ROBERT ~OHNSON M_~'1,~! !'-L_, J) JJb.e..TL ~ r" 1.-.!;.; -- P:II IJrr;, rJ Ln La r1U1: -n n I ~ ~ 1 I r-_ ~~... A~J, 011'"1 ~lRl~e.= ~~~>> ~! ~ II<~~ D '1 I--J ~ B -~2 ~O! Q LJ ~ _ ...~~ . . efO ~-r!= n I.. [ o ~loW 'I I fin D k.- Tl.. 001 0 0 bE ~,-- ~ ' ..,.,.,. .. I I 008 '-l .I ~ j l:J U II :Er1~ ~ ~ -.Jo3 rtn 007 g ~"~il!Jl~ .to-:~ ~ ~~~ .:;; .. rr. ~~ .......... --,41 \==- V. ...1 ,., ~~~ ~ ~ ,<~] ~ 6l ~~ hJ,lffiicrII o~~ ~ ~ ~StA. n 0 ,~~ h-. ~JI 04 ntJ ~Lo ~ "14 ~ ""~S- I;l c:Jh 1~12J\ '-' -cjQ Q... OSA~ L? cr~l!tJ@~~~7~j~~~~~ ~. .....~ d@] n.1C-!r~~ ~ .. IU_ ~ (- J. K"'''~ \'::J ~ r u ~ J.:,J ~ t ~ ~ 17___", C:J r: e ~-_S .... _..\ ~00t =:; '-lAW IliliIDl"\1)~ 0 CAJ CJI~ o~lrlJlli1l Subdivision Variance flOC l-' P.I~ th- ~ Relevant Information: o Beach District o The applicant desires to subdivide the existing lot into two lots in order to redevelop the site with a single-family dwelling on each of the newly created lots. o A Subdivision Variance is necessary since the proposed lots do not meet lot width required for the R-5D District (52.5 feet rather than 60 feet). o A duplex could be built on the lot by-right; therefore, there is no increase in density. o AICUZ is Greater than 75. Evaluation and Recommendation: o Planning Staff recommended approval o Planning Commission recommends approval (11-0). .. Consent agenda .. There was no opposition. I I I II ,. ~J',~ ..t:.t-';.:~..., ........"'.." 'J;,' "'0,,/,.. ..:@" 1ft ., ,~'i.) ~~\~ :~~ 't-;..\..-:- . Ilj ~t~:..~..~.,."~ ~...cr CITY OF VIRGINIA BEACH AGENDA ITEM "'" \.... ~ ITEM: ROBERT H. JOHNSON, Subdivision Variance, 1601 Virginia Beach Boulevard. BEACH DISTRICT MEETING DATE: March 24, 2009 . Background: The existing lot is 12,484 square feet and has a lot width of 52.5 feet. The lot currently has a one-story single-family dwelling located on the north side of the lot. A one-story garage is centered on-site and a free-standing shed with deck is located on the southern portion of the lot. The site is zoned R-5D Residential Duplex District, which would allow a duplex to be constructed on this site by-right, as the lot exceeds the minimum lot size requirement of 10,000 square feet. It is the intent of the applicant to subdivide the existing lot into two lots in order to redevelop the site with a single-family dwelling on each of the newly created lots. The proposed lots, however, will be 7.8 feet short of meeting the required lot width. Thus, the applicant requests a Subdivision Variance. . Considerations: The existing garage and shed will be demolished and a new home will be' constructed on the lot fronting Michigan Avenue. The applicant proposes to dedicate 1,124.8 square feet of land along Virginia Beach Boulevard and 610.8 square feet of land along Michigan Avenue for right-of-way improvements. Both of the newly created lots (Lot 10A and Lot 1 OB) will have a lot width of 52.2 feet and a lot area of 5,374.2 square feet. The request is in keeping with the Comprehensive Plan recommendations for the area, and is compatible with the surrounding uses, particularly with the conditions recommended below. While the site is located within the highest AICUZ and between two segments of APZ-1, where residential dwellings are designated by the City's AICUZ Overlay Ordinance as being not compatible with airfield operations, this request does not increase the number of dwelling units beyond the number currently allowed by-right. The site is currently zoned to allow a duplex. The proposed subdivision will allow two (2) single-family units instead of two (2) units within a duplex structure; thus, there will not be any increase in density. Moreover, single-family dwellings in lieu of a duplex are more consistent with the goals for this neighborhood expressed by the community during the Robert H. Johnson Page 2 of 2 development of the APZ-1/Clear Zone Plan. Staff, therefore, recommends approval of this request with the conditions below. There was no one present at the Planning Commission's public hearing in opposition to this request. . Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. There shall be only one (1) single-family dwelling on each parcel. A note to such affect shall be placed on the plat for recordation. 2. Single-family dwellings constructed on the parcels shall be no taller than two- stories (plus roof) or 35-feet tall, whichever is more restrictive. 3. The exterior design of the single-family dwellings shall incorporate the use of dormers as an architectural element. 4. The design of the exterior of the proposed dwellings shall be approved by the Planning Director or his designee prior to the issuance of building permits. . 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: ~ \L. 03o-c>'L I I . I II #3 February 11, 2009 Public Hearing APPLICANT I PROPERTY OWNER: ROBERT H. JOHNSON STAFF PLANNER: Leslie Bonilla REQUEST: Subdivision Variance to Section 4.4(c) of the Subdivision Ordinance that requires corner lots to be platted not ADDRESS I DESCRIPTION: 1601 Virginia Beach Boulevard GPIN: 2407953533 ELECTION DISTRICT: BEACH SITE SIZE: 12,484 square feet AICUZ: Greater than 75 dB DNL SUMMARY OF REQUEST Existing Lot: The existing lot is 12,484 square feet and has a lot width of 52.5 feet. The lot currently has a one-story single- family dwelling located on the north side of the lot. A one-story garage is centered on-site and a free- standing shed with deck is located on the southern portion of the lot. Proposed Lots: It is the intent of the applicant to subdivide the existing lot into two lots in order to redevelop the site with a single-family dwelling on each of the newly created lots. The existing garage and shed will be demolished and a new home will be constructed on the lot fronting Michigan Avenue. The applicant proposes to dedicate 1,124.8 square feet of land along Virginia Beach Boulevard and 610.8 square feet of land along Michigan Avenue for right-of-way improvements. Both of the newly created lots (Lot 10A and Lot 10B) will have a lot width of 52.2 feet and a lot area of 5,374.2 square feet. A subdivision variance is required because Lot 10A and Lot 10B do not meet the required 60-foot minimum lot width established by the Subdivision Regulations. ROBERT H. JOHNSON Agenda Item 3 Page 1 Jmm Lot 10A Lot10B Lot Width in feet 60 52.5* 52.5* Lot Area in SQuare feet 5,000 5,374.2 5,374.2 *Variance required LAND USE AND ZONING INFORMATION EXISTING LAND USE: Single-family dwelling SURROUNDING LAND USE AND ZONING: North: South: East: West: . Single-family and duplex dwellings I R-5R Residential District . Single-family and duplex dwellings I R-5R Residential District . Single-family and duplex dwellings I R-5R Residential District . Single-family and duplex dwellings I R-5R Residential District NATURAL RESOURCE AND CULTURAL FEATURES: There are no known significant natural resources or cultural features associated with this site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Virginia Beach Boulevard in the vicinity of this site is a four-lane minor arterial urban roadway. Virginia Beach Boulevard has a variable width right-of-way, and the Master Transportation Plan shows a divided roadway with an ultimate right-of-way width of 100 feet. Capital Improvement Project 2.072: First Colonial Road I Virginia Beach Boulevard Intersection Improvements are currently scheduled for this segment of Virginia Beach Boulevard. This project will improve the First Colonial Road I Virginia Beach Boulevard Intersection by a.dding turn lanes and traffic signalization improvements. This project will include widening of First Colonial Road from Oceana Boulevard to the 1-264 overpass from four to six lanes. The additional lane on each side of the roadway will provide for continuous right turn movements. The subject site falls just outside the limits of this project. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Virginia Beach 20,616 ADT '; 22,800 ADT T; Existing Land Use "L - 10 Boulevard 847 Peak Hour 1 ,190 Peak Hour ADT (Level of Service "0") I Proposed Land Use 3 - 19 CAPACITY Average Daily Trips 2 as defined by a single-family home 3 as defined by two single-family homes ROBERT H. JOHNSON Agenda Item 3 Page 2 PUBLIC WORKS I ENGINEERING: A dedication of 22 feet adjacent to Virginia Beach Boulevard is necessary such that the ultimate right-of-way of 100 feet along Virginia Beach Boulevard, in accordance with the Master Transportation Plan amended 10/12/04. is achieved. The applicant has included this dedication on the proposed subdivision plat. WATER: This existing lot currently connects to City water. The newly created lot must also connect to City Water. There is an existing 12-inch City water line on Virginia Beach Boulevard. There is an existing 6-inch City water line on West Lane. There is an existing 6-inch City water line on Michigan Avenue. SEWER: This site must connect to City sanitary sewer. Analysis of Pump Station #262 and the sanitary sewer collection system is required to ensure future flows can be accommodated. Construction plans and bonds are required. There are two (2) existing 8-inch City gravity sanitary sewer mains on Virginia Beach Boulevard. There is an existing 8-inch City gravity sanitary sewer main on West Lane. There is an existing 10-inch City gravity sanitary sewer main on Michigan Avenue. Section 9.3 of the Subdivision Ordinance states: No variance shall be authorized by the Council unless it finds that: A. Strict application of the ordinance would produce undue hardship. B. The authorization of the variance will not be of substantial detriment to adjacent property. and the character of the neighborhood will not be adversely affected. C. The problem involved is not of so general or recurring a nature as to make reasonably practicable the formulation of general regulations to be adopted as an amendment to the ordinance. D. The hardship is created by the physical character of the property. inCluding dimensions and topography, or by other extraordinary situation or condition of such property, or by the use or development of property immediately adjacent thereto. Personal or self- inflicted hardship shall not be considered as grounds for the issuance of a variance. E. The hardship is created by the requirements of the zoning district in which the property is located at the time the variance is authorized whenever such variance pertains to provisions of the Zoning Ordinance incorporated by reference in this ordinance. ROBERT H. JOHNSON Agenda Item 3 Page 3 EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request. Comprehensive Plan: The Comprehensive Plan Map designates this area of the city as part of the Primary Residential Area. 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. Infill development should occur on defined parcels or tracts of land that are surrounded by an established arrangement of land uses of similar character. Structures proposed for infill sites as well as their density, material, height, setback, yard area and other design considerations should complement and reinforce the predominant physical character of the surrounding area. Evaluation: The request is in keeping with the Comprehensive Plan recommendations for the area, and is compatible with the surrounding uses, particularly with the conditions recommended below. While the site is located within the highest AICUZ, between two segments of APZ-1, where residential dwellings are designated by the City's AICUZ Overlay Ordinance as being not compatible with airfield operations, this request does not increase the number of dwelling units beyond the number currently allowed by-right. The site is currently zoned to allow a duplex. The proposed subdivision will allow two (2) single-family units instead of two (2) units within a duplex structure; thus, there will not be any increase in density. Moreover, single- family dwellings in lieu of a duplex are more consistent with the goals for this neighborhood expressed by the community during the development of the APZ-1/Clear Zone Plan. Staff, therefore, recommends approval of this request with the conditions below. CONDITIONS 1. There shall be only one (1) single-family dwelling on each parcel. A note to such affect shall be placed on the plat for recordation. 2. Single-family dwellings constructed on the parcels shall be no taller than two-stories (plus roof) or 35- feet tall, whichever is more restrictive. 3. The exterior design of the single-family dwellings shall incorporate the use of dormers as an architectural element. 4. The design of the exterior of the proposed dwellings shall be approved by the Planning Director or his designee prior to the issuance of building permits. 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. ROBERT H. JOHNSON Agenda Item 3 Page 4 I I I II AERIAL OF SITE LOCATION ROBERT H. JOHNSON Agenda Item 3 Rage 5 PRClPOSe) VARWll~ lW>lH RlOHi Of WIt. Y 1lEDICATJC>>l (tnO,1l $0. ",/0,01. AC.) IOP()S(D VAAlA8\.E WlOlH 3liT QF '/lAY OEOIQA'IlOH ,124,8 SO. n./!l.02l5 AG.) MICHIGAN AVE. (30' R/W) d.;) p, 51 ~ a:: - ~ lOT 1~ 5~7+.1I $Q, f't, ~~ ...., taJjO) 5= ~ l) _~_ - S4rSO' _11'__ U It) ". B kUI, le3 P. 5 --- A t.l.8. Ie;) P. II no r. r=- VIRGINIA BEACH BLVD. (56' R/W) (..... Ie) p, II) PROPOSED SUBDIVISION ROBERT H. JOHNSON Agenda It~fn3 P~ge 6 i I I II # DATE DESCRIPTION ACTION 1 1/8/90 Zoning Change (A-12 to 0-1) Granted 2 2/14/95 Conditional Use Permit (automotive repair & tire sales - addition) Granted 3 3/14/95 Reconsideration of Conditions Denied 4 12/14/04 Conditional Use Permit (fuel sales in conjunction with a convenience Granted store) 5 5/12/98 Conditional Use Permit (mini-warehouse / self storage) Granted 6 11/14/06 Conditional Use Permit (bulk storage) Granted 7 6/13/00 Conditional Use Permit (motor vehicle sales) Granted ZONING HISTORY ROBERTH. JOHNSON Agenda Item 3 Page 7 ~ I I H ~ J I .....:1 ~ E3 > z o I I CI":;j e: Q e:Q i:::) CI') DISCLOSURE STATEME APPliCANT DtSClOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization. complete the following: 1 Ust the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) V;~ f 2. list all businesses that have a parent-subsidiary1 or affiliated business entity2 relationship with the applicant: (Attach list If necessary) I(Checl<.here it the applicant is NOT a corporation, partnership. firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm. buslness, or other unincorporated organization. complete the follOWing: 1, List the property owner name followed by'the names of all officers. members, trustees, partners, ete.below: (Attach list if necessary) tJ 1: t-s , I 2 Ust all businesses that have a parent--subsidiary 1 or affiliated business entitr relationship with the applicant: (Attach list if necessary) ~J 1 ~.,~ ! 'i o Check here if the property owner is NOT a corporation. partnership. firm, business, or other unincorporated organization, 1 & 2 See next page for footnotes SlllxlMIIllon VI!l'tallCe ~ Page to of 11 Remed'1f1tlll6 ROBERT H. JOHN~ON Agenda Jtern 3 Page 8 ~ DISCLOSURE STATEMENT I ADDITIONAL DISCLOSURES list all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services. real estate services. financial services, accounting services. and legal services: (Attach list if necessary) , 'Parent-subsidiary relationship. means.a relationship that exists when one oorporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code S 2.2-3101. 2 "Affiliated business entity relationship. means "a relationship, other than parent- SUbsidiary relationship, that exists when (I) one business entity has a controlling ownership interest in the other business entity, (Ii) a controlling owner in one entity is also a controlling owner in the other entity. or (HI) there is shared management or control between the buslnes8 entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities. resources or personnel on a regUlar basis; or there is otherwise a close working relationship between the entitles." See State and Local Govemment Conflict of Interests Act, Va. Code 5 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of noIificatIon (postcard) that the application has been scheduled for public hearing. I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the Instrucllons In this package. The undersigned 8110 consents to entry upon the subject property by employees of the Department of PI~ning /0 photograph and view the site for purposes of proc:essing and evllluatlng this application. , R~~~~/ Applicant's Slg~ L "2' l-tI'i-' ~ # tJ).M?N' Plint Name property Owner's Signature (If different than applicant) Print Name SubdiviSIon V8rilnce Applicalion Page 11 or 11 Reviled 7/11108 z d) I .' I ~ U I ,. I ...:I ~ ~ ~ U ~ Z o I I ~ ~ ~ c:Q ~ ~ ROBERT H. JOHNSON Agenda Item 3 Page 9 ( Item #3 Robert H. Johnson Subdivision Variance 1601 Virginia Beach Boulevard District 6 Beach February 11,2009 CONSENT Janice Anderson: The next group of matters we will address are those agenda items that have been placed on the consent agenda and our Vice Chair Joe Strange will be handling that section for us. Joseph Strange: Thank you. This afternoon we have 15 items on the consent agenda. The first matter is agenda item 3, an Appeal to Decisions of Administrative officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Robert H. Johnson. The property is located at 1601 Virginia Beach Boulevard, District 6, Beach with four conditions. Janice Anderson: Is a representative here? Please come forward. Thank you. Please state your name. ( Allen Pyle: Hi. I'm Allen Pyle, a real estate broker representing Mr. Robert Johnson. Joseph Strange: Are the conditions acceptable? Allen Pyle: Yes sir. Joseph Strange: Okay. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Jay Bernas to review this item. Janice Anderson: Thank you Mr. Pyle. Jay Bernas: This is a subdivision variance on an existing lot that is 12,484 square feet. It fronts two roads, Michigan Avenue and Virginia Beach Boulevard. The existing lot width is 52 ~ feet. The applicant wishes to subdivide the lot but it doesn't meet the required 60 feet minimum lot width. That is why the subdivision variance is required. Even though this is within an AICUZ area, by-right the applicant could build a duplex so there is no increase in density for this lot. There are no other issues, and the Planning Commission felt that this should be placed on our consent agenda for approval. Joseph Strange: Thank you Jay. Madame Chairman, I make a motion to approve item 3. Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. \". I I ( ( I II Item #3 Robert H. Johnson Page 2 AYE 11 NAY 0 ABSO ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved item 3 for consent. McR"'ERS Map F-2 Mop Not to SCl:'Ile Street Closure Relevant Information: · Bayside District · The applicant requests to close a small portion of an unimproved right-ot-way known as Windsor Crescent to eliminate an existing encroachment ot the home into the public right-ot-way. · The portion being closed has no impact on the public's ability to access the beach. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (10-0). · There was opposition. ~='~_' f' ~ ~~.- . N. .~ .....~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Application ot McRjers, LLC, tor the closure ot a portion ot Windsor Crescent adjacent to 3868 Jefferson Boulevard. DISTRICT 4 - BA YSIDE. MEETING DATE: March 24, 2009 . Background: The applicant requests to close a small portion ot an unimproved right-ot-way known as Windsor Crescent adjacent to the property located at 3868 Jefferson Boulevard. A portion ot the right-ot-way serves as a pedestrian path to the Chesapeake Bay. . Considerations: In 1989, City Council denied a street closure request associated with this property. That request included the closure ot approximately halt of the right-of- way for incorporation into the subject lot. That request was denied, and the property owner at that time pursued setback variances from the Board of Zoning Appeals in order to expand the building's footprint and construct a second floor. Several setback variances were granted in 1990, 1993, and 2003, but for reasons unknown, the two (2) previous property owners ignored the reduced setbacks, and the dwelling was expanded into the right-of-way. A corner of the residence is 0.8 teet into the Windsor Crescent right-of-way and a second floor overhang is 5.7 feet into the same right-of-way. The current application states that the present owner of the property is requesting this closure of 624.5 square teet, far less than requested in 1989, in order to eliminate the illegal encroachment issue and to provide a legal means of access to the structure for future maintenance (painting, etc.) of the dwelling. The closure will also ensure that the property owners will not encounter a problem in the future due to the encroachments should they decide to sell the property. The Viewers determined that the proposed closure will not impact the public's ability to access the beach or ability to enjoy the Bay, but it will allow the homeowner to maintain the property without encroaching onto City property. The area requested for closure is extremely small in scope. There is a well-marked public pathway within the Windsor Crescent right-of-way that leads to the beach. No portion of this path is requested for closure, and this public beach access will not be affected by this request. MCRJERS, LLC Page 2 of 2 There was opposition to the request. . Recommendations: The Planning Commission passed a motion by a recorded vote of 10-0 to approve this request with the following conditions: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of the policy are available in the Planning Department. 2. The applicant shall 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 property to be incorporated into the adjacent parcel to the west shall be limited to 625 square feet more or less as shown on the submitted survey. 4. There shall be no additions constructed to the existing deck or building within the area proposed for closure and there shall be no new structures built within the area proposed for closure. 5. The applicant shall verify 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. 6. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-of-way this approval shall be considered null and void. . Attachments: Staff Review Disclosure Statement Planning Commission Minutes Ordinance Recommended Action: Staff recommends approval. Planning Commission recommends approval. ~ Submitting Department/Agency: Planning Department City Manage . ,~oQ'z- MeR oers LLC q~ - ~<tff' ~y #23 February 11, 2009 Public Hearing APPLICANT I PROPERTY OWNER: MCRJERS, LLC STAFF PLANNER: Carolyn A. K. Smith REQUEST: Abandonment and closure of a portion Windsor Crescent ADDRESS I DESCRIPTION: Undeveloped right-of-way, located adjacent and to the northeast of 3868 Jefferson Boulevard, known as Windsor Crescent. ELECTION DISTRICT: BA YSIDE SITE SIZE: 624.5 square feet of City right-of-way AICUZ: Less than 65 dB DNL APPLICATION HISTORY: This request was deferred on October 8, November 12, December 10, 2008 and the January 14, 2009 Planning Commission meeting. SUMMARY OF REQUEST The applicant requests to close a small portion of an unimproved right-of-way known as Windsor Crescent. The right-of-way serves as a pedestrian path to the Chesapeake Bay; however, this portion of Windsor Crescent does not encounter foot traffic. The proposed closure will not impact the public's ability to access the beach or ability to enjoy the Bay but it will allow the homeowner to maintain the property without encroaching onto City property. A previous owner built a comer of the residence 0.8 feet into the Windsor Crescent right-of-way and constructed a second floor overhang that encroaches 5.7 feet into the same right-of-way. With respect to the southeastern portion of the property, the previous owner also constructed a retaining wall, to protect existing Live Oak trees, that also encroaches into the right-of-ways of Windsor Crescent and Jefferson Boulevard. The applicant may seek an Encroachment Agreement for the existing wall. MCRJERS, LLC Agenda Item 23 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Sandy, unimproved right-of-way utilized as a pedestrian path to the Chesapeake Bay SURROUNDING LAND USE AND ZONING: North: . Sandy, unimproved right-of-way (Windsor Crescent) I R-5R Residential District . Jefferson Boulevard, single-family dwellings I R-5R Residential District . Sandy, unimproved right-of-way (Windsor Crescent) I R-5R Residential District . Single-family dwelling I R-5R Residential District The property is within the Chesapeake Bay watershed and is "bayfronf' property. The sandy, unimproved right-of-way is typical of the dune system found along this portion of the Chesapeake Bay. Dune grasses and other herbaceous vegetation exist and provide stability to the system. South: East: West: NATURAL RESOURCE AND CULTURAL FEATURES: AICUZ: The site is in an AICUZ of Less than 65 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES WATER & SEWER: There are no water or sewer lines in the area proposed for closure. PRIVATE UTiliTIES: 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. Recommendation: Staff recommends approval of this request with the conditions below. EVALUATION AND RECOMMENDATION Comprehensive Plan: The Comprehensive Plan recognizes this area as the Primary Residential Area. The land use planning policies and principles established for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. The type, size, and relationship of land use, both residential and non-residential, in and around these neighborhoods should serve as a guide when considering future development. Evaluation: In 1989. City Council denied a Street Closure request associated with this property. That request included the closure of approximately half of the right-of-way for incorporation into the subject lot. Specifically, the MCRJERS, LLC Agenda Item 23 Page 2 request was to close 3,527 square feet of Windsor Crescent. As this request was denied, the property owner at that time pursued setback variances from the Board of Zoning Appeals in order to expand the building's footprint and construct a second floor. Several setback variances were granted in 1990, 1993, and 2003, but for reasons unknown, the two (2) previous property owners ignored the reduced setbacks and the dwelling was expanded into the right-of-way. The application states that the present owner of the property is requesting this closure of 624.5 square feet, far less than requested in 1989, in order to eliminate the illegal encroachment issue and to provide a legal means of access to the structure for future maintenance (painting. etc.) of the dwelling. Typically. Staff does not support requests to close rights-of-way that provide beach or waterway access; however, this request is extremely small in scope and the portions of the right-of-way requested for closure will not, in any way, impact pedestrian beach access. The closure will incorporate portions of the right-of-way where the existing home's deck hangs over approximately six (6) feet into the paper street of Windsor Crescent, where a comer (0.8 feet) was built into the same right-of-way. There is a well marked public pathway within the Windsor Crescent right-of-way that leads to the beach. No portion of this path is requested for closure and will not be impacted by this request. Staff recommends approval subject to the conditions below. CONDITIONS 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of the policy are available in the Planning Department. 2. The applicant shall 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 property to be incorporated into the adjacent parcel to the west shall be limited to 625 square feet more or less as shown on the submitted survey. 4. The applicant shall verify 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. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-of-way this approval shall be considered null and void. NOTE: Further conditions 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. MCRJERS, LLC Agenda Item 23 Page 3 ~ . AERIAL OF SITE LOCATION MCRJERS, LLC Agenda Item 23 Page 4 I I I II - ! i ~!I It II . . . fh\ \V . . I I \ " 't~ \ I, . I -. !I' f ! ~ ~ i -I ~ 5' .. / a- II SURVEY OF AREA TO BE CLOSED MCRJERS, LLC Agenda Item 23 Page 5 Map F-2 Map Not to Scola C$~ ~eq.t e Bay Street Closure 07/10/89 01/22/91 Street Closure Subdivision Variance 3 Denied Granted ZONING HISTORY MCRJERS, LLC Agenda Item 23 Page 6 I I z o ...... !;; U I I .....:1 ~ ~ ga ;::J en o .....:1 U ~ ga f-c CI) I II I DlSCLOSURESTATE~ENT ~ APPUCANT DISCLOSURE If the applicant Is a corporation, partnership, firm, business. or other unlnc:orpora1ed organization, complete lhe following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach Hat if necessary) Mc~JERS, LLC. a Virqinia limited liability company. Roger E. Magowitz, Managing Member. Jeanne M. Magowit~, ~ ~ber 2. Uit all businesses Ih8t have 8 parent-subaidl8ry' or affiliated business enuty2 relationship with the appIant (Atlach list if necessal)') See attached list [J Cheek here If the applicant Is NOT a corporation. partnership, finn, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete th;s S8CtIon only if property owner is d'dfersnt fTtxn applicant. If the property owner is a corporation, par1nel'stup. firm, business, or other unincorporated organization, complete the following: 1.' Ust the property owner name followed by the names of all officers. members, trustees. partners, ete. below: (Attach Hst If n9Ce8SS1Y) 2. List au businesses that have a parent-sUbSlchry1 or affiliated business enuty2 relationship with the applicant (Attach Hat if n8C6ssary) o Check here if the property owner Is NOT a corporation, partnership, finn, business. or other unincorporated orgsnlz8t1on. 1 & Z See next page for footnotes Does an official or employee of ltf City of VIrginia Beach have an interest in the subject land? Yes _ No L If yes, what is the name of the official or employee and the nature of their interest? Slnlet 004.... AllllliCalion PIQoI10 at 11 Re.., 71S107 MCRJERS, LLC Agenda Item 23 Page 7 l DIS'-;LOSURE STATEMENT i z o t--I ~ U t--I ~ I "Parent-subsidiary rf'lationSl'lip' means "8 relationship that exists when one a::a..c corpor~ bon directly or indirectly owns shares poSSesiing more than 50 percent of the voting ~ power .f another corporation.' See State and Local Government Conflict of Interests Act. Va. Code ~ 2.2-3101, ! "Affiliated bllsiness Entity relationship" means "a relationship, other than parent- $ubsidi try relationship. that e'Cists when (i) one business entity has a controlling ownership ga intereS' in the other business <!ntitv , (ii) a controlling owner in 00& entity is also ill controlling owner 1 the other entity. or (i i) there is shared management or control between the business e"tities Factors thai should be considered in determining the existence of an affiliated busine! 5 entity relationship in:Jude that the same person or substantially the same person own Of 'nanage the two eotitins, there are common or commingled funds or assets: the p bvstne: S entities share the uo;e of Ihe same offices or employees or o!herwls~ <;h3m nr.li\f!tlp.~. '1. !asc,urc ?s or personnel on a ngu!ar basis: or there is otherwise a close worl<il1g relationship ,,'I net",:,<=:,:', ~t-,e '"t"Hic;." 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I- J 1 I~ ,,- '.l(~ r: ADDITIONAL DISCLOSURES List all known contractors Cor businesses that have or will provide services with respect to the 'equested property l..se. including but not limited to the providers of architectural serviCJ ~s. real estate services, financial services, accounting services. and legal servio ,s: (Attach list If necessary) Wolc)tt B1vers Gates Calltp Surveyorti , -'~ '\I!!" SI'eI'! ..I05U1 ,I\pplic.alion ,,1"\ ~.:!'!'.' "'." . ~;, ..;;~~ ::-;: -: IVI\"I"\.Jt:I"\~, L.L.\" Agenda Item 23 Page 8 DJSCLOSURE Sr A TEMENT Attached List 2. List of all businesses: (-) Maggie's Enterprises, Inc., a Virginia corporation. 'fa MattreB8 Discounters (b) MoRJERS n, LLC, a Virginia limited liability company (e) Magnate Management Corporation, a Virginia corporation Three (3) businesses have a oommon ownership With Applioant. MCRJERS, LlC Agenda Item 23 Page 9 Item #23 McRjers, L.L.C. Discontinuance, closure and abandonment of a portion of Windsor Crescent to the north of Jefferson Boulevard District 4 Bayside February 11, 2009 REGULAR Donald Horsley: The next item is item 23, McRjers, L.L.C. An application for McRjers, L.L.C., for a discontinuance, closure and abandonment of a portion of Windsor Crescent to the north of Jefferson Boulevard, District 4, Bayside. Yes sir. Les Watson: Madame Chairman and members of the Commission, my name is Les Watson, and I represent the applicant, who are Mr. and Mrs. Robert Magowitz. Mr. and Mrs. Magowitz are seeking to close a small piece of Windsor Crescent that runs behind their house, to the north of their house, largely between them and the Chesapeake Bay" The original application requested that we also close a piece of the right-of-way at the intersection of Jefferson Boulevard and Windsor Crescent. The plan has been revised to eliminate that request, so we are not jut requesting to close a piece of Windsor Crescent. The original application involved 894 square feet, and the application as it stands before you today involves 62411 feet, I believe. We've eliminated part of that. And, what MI'. and Mrs. Magowitz are trying to do here is trying to solve a problem that they didn't create. A predecessor in title, actually I think it was 2 or 3 owners ago, did an addition on this property, and hopefully by accident, they built a comer of the house into the right-of-way of Windsor Crescent. They had gotten a variance at the time to build to a zero lot line on that course. It is a very small lot and very irregular shaped. So, they had gotten a variance to go to a zero lot line. And, at grade, a comer of the house went to about 8 or 9 inches into the right-of- way. And, on a second story overhang, a porch actually extends into the right-of-way by about 5 to S~ feet. You will never know what to look at it because it doesn't look like there is or ought to be a road there because of the unusual configuration of Windsor Crescent that loops around the house. But, what they're trying to do is just three things. They are trying to close some of the right-of-way and acquire it. Whatever the City decides they want to charge for it. But the City does own the fee to Windsor Crescent. They are trying to secure ownership of the property that is under their house. And, they are also trying to acquire slightly more than that which lies directly under the footprint of their house so they can access the house for purposes of maintenance. And, they are trying to solve a concern which I think is growing greater all the time. It is not getting any easier to borrow money day by day. At some point in the future, the Magowitz's may want to sell this house. And, my experience closing loans around here for 500 years, is that lenders don't like encroachment agreements, It has been suggested in the course of our application that we may want to consider doing this by request to the City to encroach onto a public right-of-way and getting an encroachment agreement. We thought about it long and hard, but by their very nature, encroachment agreements are temporary in nature. The name of the agreement, I believe Ms. Wilson, is a temporary encroachment agreement, which means that anytime anybody wants I I I II Item #23 McRjers, L.L.C. Page 2 us to move whatever we've gotten pennission to encroach, we've got to do it. And, that would be a pretty serious problem for the Magowitz family. We know that the public way to the beach traverses a portion. You can see how close it is to the house right there (pointing to PowerPoint). You will never know it was there, because here just on the right side of the __hh.. .___.picture.thereis.a.drop..off,-which.I'lLexplain.in asecond.-.A .portion.ofWindsor.Crescent...._._m_. - -- ...-..-- .---.-" does provide access to the beach. That access is very clearly marked by fences. In addition to the part that we're requesting to close and acquire, being separated from the pathway to the beach horizontally is also separate vertically. We're several feet about that path. There is a vegetated bank there that prevents and would give further assurance to anybody seeking to eliminate access to the beach through the right We're no threat to that right-of-way at all. We're not close to it We have no intent to build anything in the property we're seeking to acquire. We're just seeking to solve a problem, as I say, we didn't create. I know there has been concern expressed about this being a precedent for future requests for closure and acquisition down the road. Somehow that morphed into a threat to the public's access to the beach. And, we are confident, after going through this with the staff, that these applications, should anymore ever be made, are going to be scrutinized very carefully, and by your staff, by this Commission and by the City Council. It is real simple. If an application is or is perceived to be ever a threat to the public's right to access the beach and other public ways, it ought to be denied. One application on this property some years ago was denied. It was over broad. They saw to close half of Windsor Crescent so they could build a bigger house. Well, that didn't make sense. But this one does make sense, because all it does is gives us ownership of the property on our house and it does lead up to operate. So, it has no binding precedental value on any future application. We know they will be scrutinized very, very carefully. As I say, there is no intent and we will not obstruct or compromise or threaten the public's right to access the beach. You can see from the plat what we want to do, and you can see there is a vegetated incline there, between our house, and the way it is protected by sand fences, and we're no threat. It's an application to solve a problem, and we hope you'll give it every consideration. Janice Anderson: Are there any questions for Mr. Watson. Thank you. Donald Horsley: We have one speaker in opposition. Grace Moran. Janice Anderson: Welcome. Grace Moran: Good afternoon Madame Chairman and members of the Panning Commission. I thank you for the opportunity to speak to you today. My name is Grace Moran. I reside at 2225 Roanoke Avenue. I am in Ocean Park. I am an officer of the Ocean Park Civic League, and I would like pass out to you this afternoon. You have a letter from me as an individual. You have a memo from the Ocean Park Civic League stating our concerns. You also have a letter from another resident, former Delegate Leo Waldrup. We have all expressed, we think cogent arguments against this granting. Ocean Park is belittled with encroachments of this nature. It does set a precedent even though Mr. Watson says that it would not be a precedent. Every time this has come before the City, either City Councilor the Planning Commission, it represents hundreds of hours of citizen man hours. Ocean Park Civic League has four :file Item #23 McRjers, L.L.C. Page 3 folders dating back 27 years on this issue, and if you start with this one, you're opening the can of worms. Because everybody else that has an encroachment issue will be before you. I encourage you to avoid that and deny this request. Thank you. Janice Anderson: Thank you. Are there any questions of Ms. Moran? Donald Horsley: There are no other speakers. Janice Anderson: Do you have any rebuttal Mr. Watson? Les Watson: I will simply reiterate that we don't believe what the scrutiny that these applications get that this has any significant precedental value. There may be encroachments allover Ocean Park and Chesapeake Beach, and we did not cause this. We're simply attempting to create a legal situation where an illegal one exists. We didn't violate the law in the first place. We're just trying to become compliant with the law. And, again, I can't address what other people might do. I will tell you this based on the assessments of the land up in this area. The acquisition is not inexpensive. So, we're attempting not much more than this. But, we're just trying to make a non-compliant situation compliant. Thank you. Janice Anderson: Mr. Watson, if! could. I know this has been before you and you've scaled it down so you're not asking for any street closure on the front of the property. Les Watson: Yes ma'am. Janice Anderson: That is going to be an encroachment agreement? Les Watson: We decided that we would take our chances on the encroachment. The part of the front is a retaining wall that keeps a couple of Live Oaks in place, and we didn't think for anything to happen to them. We hate for anything to happen to them, but we're sort of willing to take our chances with an encroachment agreement on that, because we don't think anybody would object to them being there. Janice Anderson: Okay. Les Watson: Interestingly, I'm sure Ms. Moran's opinion wouldn't change but the letter from the civic league was written in November when both of the requests were on the table, and we have since reduced the nature of the request. Janice Anderson: The only concern that I have is I don't have any concern because I talked to you about it, and I do see that the owner of the property has a problem with a portion onus house being in there. I don't have a problem at all with that portion being closed so maybe the overhang. But I do have a problem with is the additional property around being closed, and I believe it is an additiona1littIe deck or something like that, every lot in this area and Ocean Park. They are small lots, beach front lots and they overbuild these lots, and to get everybody to go in. I think there might be a precedence to go into the right-of-ways. This I I I II Item #23 McRjers, L.L.C. Page 4 property has already been given a variance to a zero lot line, and then to go further in, and I think it is just to build a bigger dwelling. Les Watson: See this point right here (pointing to PowerPoint)? Janice Anderson: Yes sir. Les Watson: That is only 7 feet and it looks bigger than what it is because of the small size of the lot to begin with. And, the only thing that Mrs. Magowitz ever mentioned to me is that if the sand blew away from this back deck, which follows the lines. It's a curbed wall on the deck. If the sand ever moved away from there, he might want to put a step in so he could get down to the ground. It is all sand back there. Sometimes it is higher and sometimes it is lower. I talked to Ms. Wilson. We are happy for the encroachment ordinance to include a provision that nothing can be built in the area that has been closed other than that which is there now. Janice Anderson: You wouldn't have any problem with that? Les Watson: I have no problem with that at all. No ma'am. Unless we need a step to get off the deck, that is the only thing, certainly nothing about grade. No more structures. No more enclosed structures. And, we have no intention. Kay and I thought it might be a little tricky to write, but we were happy to make it a condition of the closure. We did talk about that one time a long time ago. Kay Wilson: Okay. Les Watson: You get smarter and I don't. Maybe you can figure out a way to write it but if you wanted to make it a condition. Janice Anderson: I don't have any problem with that. You can make a big deck. I just don't want to get into where were closing streets so everybody can expand. Les Watson: We will stipulate that we can't build anything out ther~. We will make that a condition if you would like? Janice Anderson: Any other questions? Go ahead Dave. David Redmond: My view, and I sort of said it this morning, and Pll say it again. Having been to this property now, this is one of these properties I go to if I got nothing else to do, and I happen to be on Shore Drive. I am strange in that way. I'll spin by and I've been up that path now a couple of different times. I don't think it is fair to burden this owner with that encroachment that he didn't build. I accept the argument that if you have the agreement that applies to a portion of the structure and not merely to get a little block wall around a screen of trees, it is probably going to be more problematic whether he is financing at some point or trying to sell the house or anything else he wants to do. This is precisely my view, Item #23 McRjers, L.L.C. Page 5 which I've held all along with regard to this one. Staff wrote it and wrote it well. The proposed closure will not impact the public's ability to access the beach or the ability to enjoy the Bay but it will allow the homeowner to maintain the property without encroaching onto City property. If there was some way in which the public was being disfranchised, inconvenienced, bothered in any way by this, I would l;e the first guy in line saying wait a minute. But, I don't know how that is. I can't find it. I've been up and down that path three times. So, in my view, this is a very, very small matter. I do not agree with the idea that this is precedent setting in any way. The reason I say that is that these things as you can tell are, they get people's hair up in end. They get my hair up in end. And every single time we face any issue like this we are going to look at it extraordinarily closely. And we're going to apply a very critical eye towards what happens. If it smells bad, and it looks wrong, then we can ship it away. It is not a precedent as long as we have the good sense and good judgment to recognize how carefully we have to protect the situation. In this case, however, I don't see that. I don't smell it. I don't see it. It doesn't look wrong to me. So, in my view, I'm going to support the application. Unless there is some indication that there is something sort of mysterious or amiss here, what you said about the structure will stipulate that there will be no structure built whatsoever ever. What else can one say that would be more convincing than that? So, in my view, this is something that we ought to approve. I'll make a motion at the appropriate time to approve it. Janice Anderson: Thank you. Les Watson: For clarity, we clearly have no objection to an added condition that nothing be built in the area that used to be a portion of the right-of-way, while we can leave what's already been built. Janice Anderson: Right. Are there any other questions for Mr. Watson? Thank you. I'll leave it to further discussion. Do I have a motion? David Redmond: I have a motion. I move that we approve the application with an additional condition that no additional structure shall be built in a portion of the right-of-way th8.t is being granted that's part of the application. Janice Anderson: A motion by Dave Redmond with that extra condition. I have a second by Phil Russo. AYE 10 NAY 0 ABSO ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS LIVAS AYE ABSENT 1 ABSENT I I III Item #23 McRjers, L.L.C. Page 6 REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 10-0, the Board has approved the application of McRjers, L.LC., with an additional condition indicating that no other structure shall be built. Janice Anderson: Thank you very much Mr. Watson. We're just going to take a short recess. Thanksl 1 APPLICATION OF MCRJERS, LLC, FOR THE 2 CLOSURE OF A PORTION OF WINDSOR 3 CRESCENT ADJACENT TO 3868 JEFFERSON 4 BOULEVARD 5 6 WHEREAS, McRjers, LLC (the "Applicant") applied to the Council of the 7 City of Virginia Beach, Virginia, to have the hereinafter described street discontinued, 8 closed, and vacated; and 9 10 WHEREAS, it is the judgment of the Council that said street be 11 discontinued, closed, and vacated, subject to certain conditions having been met on or 12 before one (1) year from City Council's adoption of this Ordinance; 13 14 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of 15 Virginia Beach, Virginia: 16 17 SECTION I 18 19 That the hereinafter described street be discontinued, closed and vacated, 20 subject to certain conditions being met on or before one (1) year from City Council's 21 adoption of this ordinance: 22 23 All that certain piece or parcel of land situate, lying and being 24 in the City of Virginia Beach, Virginia, designated and 25 described as "AREA OF RIW TO BE CLOSED (624.5 26 S.F./0.014 AC.)" shown as the shaded area on that certain 27 plat entitled: "STREET CLOSURE PLAT PART OF 28 WINDSOR CRESCENT RIW LOCATED BETWEEN BLOCK 29 48 & BLOCK 57 OCEAN PARK SECTION C M.B. 5 P. 195 30 M.B. 16 P. 45 VIRGINIA BEACH, VIRGINIA" Scale: 1"=10', 31 dated DECEMBER 30, 2008, prepared by Gallup Surveyors 32 & Engineers, LTD., a copy of which is attached hereto as 33 Exhibit A. 34 35 36 37 38 39 40 41 42 43 44 GPIN: 1580-20-0157-0000 1 I I 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 I II SECTION II The following conditions must be met on or before one (1) year from City Council's adoption of this ordinance: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of said policy are available in the Planning Department. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcel. The resubdivision plat must be submitted and approved for recordation prior to final street closure approval. 3. The property to be incorporated into the adjacent parcel to the west shall be limited to 625 square feet more or less as shown on the submitted survey. 4. There shall be no additions constructed to the existing deck or building within the area proposed for closure and there shall be no new structures built within the area proposed for closure. 5. The applicant shall verify 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, the applicant shall provide easements satisfactory to the utility companies. 6. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within one (1) year of approval by City Council. If all conditions noted above are not in compliance and the final plat is not approved within one (1) year of the City Council vote to close the street, this approval will be considered null and void. SECTION III 1. If the preceding conditions are not fulfilled on or before March 23, 2010, this Ordinance will be deemed null and void without further action by the City Council. 2. If all conditions are met on or before March 23, 2010, the date of final closure is the date the street closure ordinance is recorded by the City Attorney. 2 88 3. In the event the City of Virginia Beach has any interest in the 89 underlying fee, the City Manager or his designee is authorized to execute whatever 90 documents, if any, that may be requested to convey such interest, provided said 91 documents are approved by the City Attorney's Office. 92 93 SECTION IV 94 95 A certified copy of this Ordinance shall be filed in the Clerk's Office of the 96 Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the CITY 97 OF VIRGINIA BEACH as "Grantor" and MCRJERS, LLC, as "Grantee." 98 99 Adopted by the Council of the City of Virginia Beach, Virginia, on this 100 day of , 2009. 101 102 THIS ORDINANCE REQUIRES AN AFFIRMATIVE VOTE OF THREE- 103 FOURTHS OF ALL COUNCIL MEMBERS ELECTED TO COUNCIL. CA10751 V:\applications\citylawprod\cycom32\Wpdocs\DO 18\P004\00003804" DOC R-1 March 11, 2009 APPROVED AS TO CONTENT: APPROVED AS TO LE AL SUFFICIENCY: WUtL q. tfAti.jLD~ City Attorney 3 l' '! 'B~\\1'B1T "A" \ Ii '4, t. \0 \ I!. t! 0: '" . 't ~l~\ II! l>~\\\o;: \. M\\ %~~\l"~~';,~,' \ i<\\;. 'd~ ~~,-g~':':' r.\~ ~ t~ \ l \ t II> ~ ill ~ -: .i I ~ ~i '&~ \ \\ '6 ~ . 't- d- .~ ~ IS> \ g 'i d- .*' SJ ,\r-~iO p ~, ..,." -. t$>~~ '\ '& '" ~ ~ t' 1\ ~ .. g ~'(aQ' / \0 '" ~ ~ ~'3 TOWN CENTER ASSOCIATES o 7 Relevant Information: · Lynnhaven District · The applicant requests closure of a very small portion of the Market Street right-of-way and subjacent air space in order to square off the corner and ultimately construct a 15-story building consisting of a retail component and up to 208 units as a mix of hotel and apartments. · AICUZ is Less than 65. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (11-0). · Consent Agenda. · No opposition. I I III CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Ordinance Approving Application of Town Center Associates, L.L.C., for the Closure of a Portion of Market Street and its Adjoining Subjacent Air Space at the Southwestern Corner of Block 9 at Town Center. MEETING DATE: March 24,2009 . Background: The applicant requests closure of 8 square feet of the Market Street right-of-way and 7 square feet of adjoining subjacent air space in order to square off the corner for the purpose of constructing a 15-story building consisting of up to 208 apartment units, a 162 room hotel, a public conference center, and related retail space. . Considerations: Most of the streets in Town Center were dedicated with subjacent rights, meaning, a differentiation is made between ownership of property above, below, and at grade. As the subjacent rights are those under the land that, in this case, the City owns, the closure of the right-of-way includes property below grade as well as above grade in order to avoid possible future legal encroachment issues with underground supporting structures and utilities serving the improvements constructed on adjacent blocks. As many of the buildings in Town Center are constructed with a zero setback from the right-of-way, the foundations for the buildings (some of which are constructed on deeply driven pilings that may not be driven exactly vertical) and utility facilities serving the buildings may protrude beneath the surface of the adjacent streets. The request to vacate the 7 square feet of subjacent air space means that the City will relinquish its rights to the property beneath a small portion of the right-of- way to the Virginia Beach Development Authority (VBDA). The right-of-way itself will still be reserved open for public use. Upon closure of the 8 square feet of Market Street and the City's relinquishment of its subjacent air rights, any supporting structures and utilities may be located within the underlying area without constituting encroachment. As part of this agreement, the Virginia Beach Development Authority (VBDA) will also convey 36 square feet of subjacent air space to the City. This area was reserved by the VBDA per the 2002 Phase 1-A subdivision plat and related Deed of Dedication. A 2004 resubdivision plat and related Deed of Dedication Town Center Associates, LLC Page 2 of 3 dedicated an 18~foot wide strip of Market Street immediately to the north of this area, leaving out this portion of the subjacent area. The Street Closure Viewers determined that no public inconvenience will result by approving the requests. The Planning Commission placed this item on the consent agenda because the Viewers determined that no public inconvenience will result from the closure 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. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City is normally 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. No purchase price shall be charged in this street closure; however, because the City of Virginia Beach Development Authority (the current owner of the property affected by the street closure) shall reconvey to the City, as consideration for this street closure, any interest in subjacent air space that it no longer needs to be reserved by reason of this street closure. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify 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. 4. The applicant shall cause to be conveyed to the City of Virginia Beach any interest in adjoining subjacent air space that is no longer needed by reason of this street closure. In exchange, the City shall convey to the City of Virginia Beach Development Authority the closed portion of Market Street together with the closed portion of subjacent air space, subject to the same terms and conditions set forth in those Deeds of Dedication recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach as Instrument Numbers 200212313087765 and 200402100024237. 5. Closure of the right~of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not I I III Town Center Associates, LLC Page 3 of 3 approved within one year of the City Council vote to close the right-of-way this approval shall be considered null and void. 6. If required by the City of Virginia Beach Public Works Department, the applicant shall relocate, in a manner satisfactory to the City of Virginia Beach Public Works Department, the existing traffic signal pole and any other signal equipment now located within the right-of-way proposed for closure . Attachments: Staff Review Disclosure Statement Planning Commission Minutes Ordinance Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department ^\..\.. \ City Manager:~ ~~~ · '''' 1 ORDINANCE APPROVING APPLICATION OF 2 TOWN CENTER ASSOCIATES, L.L.C., FOR 3 THE CLOSURE OF A PORTION OF MARKET 4 STREET AND ITS ADJOINING SUBJACENT 5 AIR SPACE AT THE SOUTHWESTERN 6 CORNER OF BLOCK 9 AT TOWN CENTER. 7 8 WHEREAS, Town Center Associates, L.L.C. (the "Applicant") applied to 9 the Council of the City of Virginia Beach, Virginia, to have the hereinafter described 10 portion of Market Street discontinued, closed, and vacated; and 11 12 WHEREAS, it is the judgment of the Council that said street be 13 discontinued, closed, and vacated, subject to certain conditions having been met on or 14 before one (1) year from City Council's adoption of this Ordinance; 15 16 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of 17 Virginia Beach, Virginia: 18 19 SECTION I 20 21 That the hereinafter described portion of Market Street be discontinued, 22 closed and vacated, subject to certain conditions being met on or before one (1) year 23 . from City Council's adoption of this ordinance: 24 25 ALL THOSE certain pieces or parcels of land, situate, lying 26 and being in the City of Virginia Beach, Virginia, designated 27 and described as "PORTION OF MARKET STREET AND 3' 28 PUBLIC INGRESS/EGRESS AND UTILITY EASEMENT TO 29 BE CLOSED. AREA = 8 SQUARE FEET" and "SUBJACENT 30 AIR SPACE TO BE CLOSED. AREA = 7 SQUARE FEET" as 31 shown on that certain plat entitled "PLAT SHOWING 32 PORTION OF MARKET STREET TO BE CLOSED, Virginia 33 Beach, Virginia", Scale: 1" = 40', dated December 18, 2008 34 and revised through January 26, 2009, prepared by MSA, 35 PC, a copy of which is attached hereto as Exhibit A. 36 37 SECTION II 38 39 Tne following conditions must be met on or before one (1) year from City 40 Council's adoption of this ordinance: 41 42 43 44 GPIN 1477-54-1429 1 I I III 45 1. The City Attorney's Office will make the final determination 46 regarding ownership of the underlying fee. The purchase price to be paid to the City is 47 normally determined according to the "Policy Regarding Purchase of City's Interest in 48 Streets Pursuant to Street Closures," approved by City Council. Copies of the policy are 49 available in the Planning Department. No purchase price shall be charged in this street 50 closure; however, because the City of Virginia Beach Development Authority (the 51 current owner of the property affected by the street closure) shall reconvey to the City, 52 as consideration for this street closure, any interest in subjacent air space that it no 53 longer needs to be reserved by reason of this street closure. 54 55 2. The applicant shall resubdivide the property and vacate internal lot 56 lines to incorporate the closed area into the adjoining parcels. The plat must be 57 submitted and approved for recordation prior to final street closure approval. 58 59 3. The applicant shall verify that no private utilities exist within the 60 right-of-way proposed for closure. Preliminary comments from the utility companies 61 indicate that there are no private utilities within the right-of-way proposed for closure. If 62 private utilities do exist, easements satisfactory to the utility company, must be 63 provided. 64 65 4. The applicant shall cause to be conveyed to the City of Virginia 66 Beach any interest in adjoining subjacent air space that is no longer needed by reason 67 of this street closure. In exchange, the City shall convey to the City of Virginia Beach 68 Development Authority the closed portion of Market Street together with the closed 69 portion of subjacent air space, subject to the same terms and conditions set forth in 70 those Deeds of Dedication recorded in the Clerk's Office of the Circuit Court of the City 71 of Virginia Beach as Instrument Numbers 200212313087765 and 200402100024237. 72 73 5. Closure of the right-of-way shall be contingent upon compliance 74 with the above stated conditions within 365 days of approval by City Council. If the 75 conditions noted above are not accomplished and the final plat is not approved within 76 one year of the City Council vote to close the right-of-way this approval shall be 77 considered null and void. 78 79 6. If required by the City of Virginia Beach Public Works Department, 80 the applicant shall relocate, in a manner satisfactory to the City of Virginia Beach Public 81 Works Department, the existing traffic signal pole and any other signal equipment now 82 located within the right-of-way proposed for closure. 83 84 SECTION 1/1 85 86 1. If the preceding conditions are not fulfilled on or before March 24, 87 2010, this Ordinance will be deemed null and void without further action by the City 88 Council. 2 89 2. If all conditions are met on or before March 24, 2010, the date of final 90 closure is the date the street closure ordinance is recorded by the City Attorney. 91 92 3. In the event the City of Virginia Beach has any interest in the 93 underlying fee, the City Manager or his designee is authorized to execute whatever 94 documents, if any, that may be requested to convey such interest, provided said 95 documents are approved by the City Attorney's Office. 96 97 SECTION IV 98 99 A certified copy of this Ordinance shall be filed in the Clerk's Office of the 100 Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the CITY 101 OF VIRGINIA BEACH as "Grantor" and TOWN CENTER ASSOCIATES, L.L.C. and the 102 CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY as "Grantees." 103 104 Adopted by the Council of the City of Virginia Beach, Virginia, on this 105 day of , 2009 106 107 THIS ORDINANCE REQUIRES AN AFFIRMATIVE VOTE OF THREE- 108 FOURTHS OF ALL COUNCIL MEMBERS ELECTED TO COUNCIL. APPROVED AS TO LEGAL SUFFICIENCY: APPROVED AS TO CONTENT: cny~~~/r~ CA10781 V:\applications\citylawprod\cycom32\ Wpdocs\D018\P004\OOO7S067.DOC R-1 03/24/09 3 I I ~ ~- ~~ lI><( ~.!. <(I') zo> -0> C.- 0::........ 01') ,0 IX) uo> .- ~c .s:.<( ..Jz a.. ~~ <(0 t-N lI>jE ~::J ~O C)lI> a::: 5 ~ Q:: ~~~ ~~!i: ~c::s ~ ~I::: !~~ '- ~ Il: t;~~ ~ ~~ ~ ~~ (/)Io..:~ ~~~ ~ ~ ~ 84.85' I 'I EXHIBIT A - Page 1 of 2 VIRGINIA BEACH BL YO ~, It-D<( III BANK lI> ST llc:: ~I I~D~ ~ COMMERCE fE ST ....I ~l I~I * I~ SITE ~ COLUMBUS ST ~ ~r 11 0:: C Z ~ N ~ ~ lI> Z o 1 u SOUTHERN BLVD LOCATION MAP - SCALE: 1" = 2,000' ""'~'~rD,-.r S'YrJrr7" /11'1' DAMJ 3' PUBLIC INCRESS~CRESS "'",,",M~IT~ 'IT~~' (Q, IT/,,/ r ANO UTILITY EASEMENT . (/NST. P0(402060023049) (/NS1. ;'20040210002"237) (FORJlERl Y ClEVElANO STREET) (/NS1. ;'2(}(H(H080055240) (TYP) If) N 89'35'57" E--L--200.26'--~I"~1. ,~(fW N 3,474,594.1037 N 3,474,595.5046 ~ II IE 12,175,006.2284 E 12,175,206.4835 I 3' SUBJACENT AIN SPACE (/NS1. /200212313087765) I (/NS1. /200402100024237) I (/NS1. ;'2004040800552-10) (TYP) ~ ~ . TOWN CENTER BLOCK 9 co ~ ~ ~~ N (INST. 1200402060023049) N :' AREA- 44.062 SF N ;a ~ OR 1.012 AC I ~~ GPIN:1477-54-1429 ~ !::S I ~ ~ ~~ ~~ ~~~ o~1o..: ~QS~ o~.::::. ~~ I I ~ . o .- ;,. N b o z I NOTE: MERIDIAN SHOWN HEREON IS 8ASED ON THE VIRGINIA STATE PLANE COORDINATE SYSTEM, SOUTH ZONE, NORTH AMERICAN DATUM 1983/1993 HARN (NAD 83/93, HARN) AND REFERENCED TO VIRGINIA BEACH GPS STATIONS "4737-1744" &: "4793". 18' PNEVlOlJS NIGHT-OF-WAY OEOICATlON (INST. pOO"0206002JtN!l) SEE DETAIL 'A' PNEVlOlJS S 44'35'53" W NIGHT-OF-WAY OEOICATlON , (/NS1. /200212303086483) 10.38 S 89'3553" W -190.63 pll'l(f) PIN(f) COlUMBUS STREET (VAN Mom N/I#j (AlB 110, PC 12) (INST. 200212303086-183) AS PER CLIENT SHEET 1 OF 2 :M:SA. P .c. ENVIRONMENTAl SCIENCES .GEOSClENCES PLANNING . SURVEYING . ENGINEERING . LANDSCAPE ARCHllEClURE 5033 ROUSE DRI~ VIRGINIA BEACH, VA 23462 757-490-9264 (OFC) ~57-490-0634 (FAX) www.msaonhne.com PROJ. NO.: 061618 DRAWN: KCR DATE: 12-18-2008 SCALE: 1" = 40' PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED , VIRGINIA BEACH, VIRGINIA EXHIBIT A - Page 2 of 2 CURVE TABLE CURVE RADIUS LENGTH TANGENT CHORD BEARING DELTA C1 25.00 10.78 5.48 10.70 S 12'42'36" E 24'42'36" C2 28.00 10.71 5.42 10.65 S 1119'42" E 21'55'04" C3 25.00 3.42 1.71 3.42 N 29'01'48" W 7'50'21" UNE TABLE UNE BEARING LENGTH L1 N 00"24'10" W 10.45 L2 S 89'35'53" W 2.02 L3 S 89'35'53" W 0.97 L4 S 00'24'10" E 3.00 L5 S 89'35'53" W 11.08 L6 N 89'35'53" E 12.72 Ie' ~ b F"77'71; SUBJACENT AIR SPACE TO BE CLOSED. ~ ~ AREA = 7 SQUARE FEET ~ ~ SUBJACENT AIR SPACE TO BE CONVEYED o ~ TO THE CITY OF VIRGINIA BEACH. z AREA = 36 SQUARE FEET a''t\~l ~fi1k~t~ PORTION OF MARKET STREET AND 3'. ~,~ PUBUC INGRESS/EGRESS AND UTlUTY EASEMENT TO BE CLOSED. AREA = 8 SQUARE FEET PREVlOl/S RIGHT-OF-WAY OEOlCAnON , (lNST. pOO212JOJ086.f8.J) N 89'35'53" E ~' PUDUC INCRESS~CRESS ~ AND unuTY EASEMENT ~ (iNST. pOO212J1J087765) (lNST. POO.f.0210002.f.2J7) (lNST. p(J()lO.f.0800552-1O) (TYP) ~l ~!"'i ~~ ~~ ~~ I~ I~ ~~~ ~I :s;K." ~~!tl a:~~ J' SUBJACENT AIR SPACE (lNST. pOO212J1J087765) (lNST. p(J()10210002.f.2J7) (lNST. POO.f.O.f.0800552.f.O) (TYP) OE1i4/L A SCALE: ,. = 10' PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED SHEET 2 OF 2 lVISA. P.C. ENVIRONMENTAL SOENCES .GEOSOENCES PLANNING. SURVEYING 'ENGlNEERlNG . LANDSCAPE ARCHITECTURE 5033 ROUSE DRIVE. VIRGINIA BEACH, VA 23462 757-490-9264 (OFC) ~57-49o-0634 (FAX) www.msa In.c PROJ. NO.: 06161B DRAWN: KCR DATE: 12-18-2008 SCALE: 1" = 10' , VIRGINIA BEACH, VIRGINIA I , III Item #18 Town Center Associates, L.L.C. Discontinuance, closure and abandonment of a portion of Market Street Northeast comer of the intersection of Market Street and Columbus Street District 5 Lynnhaven February 11, 2009 CONSENT Joseph Strange: The next item is item 18, an application of Town Center Associates, L.L.C. for a discontinuance, closure, and abandonment of a portion of Market Street located at the northeast comer of the intersection of Market Street and Columbus Street, District 5, Lynnhaven with six (6) conditions. Mike Nuchols: Good afternoon for the record, Mike Nuchols representing the applicant. The applicant is in agreement with all the conditions. Joseph Strange: Thank you very much. Is there any opposition to this matter being placed on the consent agenda? If not, the Chairman has asked Ron Ripley to review this item. Ronald Ripley: Thank you Joe. This is really a housekeeping matter too. It's a discontinuance, closure, and abandonment of a little small portion, actually the northeast comer of Market Street and Columbus Street at the Town Center, It really kind ofsquares the block off for this next development that Annada Hofller will be developing, which is a 208-unit apartment building, a hotel, and some retail component. It does include adjacent air space, which is, in the case of zero lot line developments like this, where you build right up to the right-of-way. Sometimes you might impede the right-of-way with your foundations or your beams and this basically it avoids those conflicts. There is method worked out for the City. So, it was very minor matter, and we felt that it ought to go on consent. Joseph Strange: Thank you Ron. Madame Chainnan, I make a motion to approve item 18. Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. Mr. Redmond? David Redmond: Madame Chairman, I will be abstaining on item 18, as I have a business conflict. Janice Anderson: Thank you. AYE 10 NAY 0 ABSl ABSENT 0 ANDERSON AYE BERNAS AYE Item #18 Town Center Associates, L.L.C. Page 2 CRABTREE HENLEY HORSLEY KATSIAS LIVAS REDMOND RIPLEY RUSSO STRANGE AYE AYE AYE AYE AVE ADS AYE AYE AYE Ed Weeden: By a vote of 10-0, with the abstention so noted, the Board has approved item 18 for consent. I I Mq~7 Mo No1. to Scale o B-3 :rn '=::=U b=d Street dosure III # 18 February 11, 2009 Public Hearing APPLICANT: TOWN CENTER ASSOCIATES, LLC PROPERTY OWNER: VIRGINIA BEACH DEVELOPMENT AUTHORITY STAFF PLANNER: Carolyn A.K. Smith REQUEST: Discontinuance. closure and abandonment of a portion of right-of-way known as Market Street, and subjacent air space, at the northeast comer of Columbus Street and Market Street ADDRESS I DESCRIPTION: Property located on the northeast corner of corner of Columbus Street and Market Street GPIN: 1477541429 ELECTION DISTRICT: L YNNHAVEN SITE SIZE: AICUZ: 8 square feet: portion Less than 65 dB DNL of Market Street 7 square feet: subjacent air space SUMMARY OF REQUEST The applicant requests closure of a very small portion of the Market Street right-of-way and subjacent air space in order to square off the corner and ultimately construct a 15-story building consisting of a retail component and up to 208 units as a mix of hotel and apartments. A Conditional Use Permit is required, and follows, to construct this structure. Specifically, the request is to close eight (8) square feet at the corner of Columbus and Market Streets and to close seven (7) square feet of subjacent air space, for improvements to the site. As part of this agreement, the City will receive 36 square feet of subjacent airspace to be conveyed by the Virginia Beach Development Authority. TOWN CENTER ASSOCIATES / VeDA Agenda Item 18 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Undeveloped vacant site SURROUNDING LAND USE AND ZONING: North: South: East: West: · Commerce Street, restaurant and retail / B-3A Business District · Columbus Street, office, open space / B-3 Business District . Central Park Avenue, apartments / B-3A Business District · Market Street, hotel and apartments / B-3A Business District NATURAL RESOURCE AND CULTURAL FEATURES: The site is within the Chesapeake Bay watershed. There do not appear to be any significant environmental or cultural features on the site. IMPACT ON CITY SERVICES WATER & SEWER: There are no water or sewer lines in the area proposed for closure. PRIVATE UTILlTES: Preliminary comments from private utility companies indicate that there are no private utilities within the area proposed for closure. Recommendation: Staff recommends approval of this request with the conditions below. EVALUATION AND RECOMMENDATION Evaluation: The Street Closure Viewers met and determined that no public inconvenience will result by approving the requests to close eight (8) square feet of the right-of-way and seven (7) square feet of subjacent air space at the northeast corner of Columbus and Market Streets. Most of the streets in Town Center were dedicated with subjacent rights, meaning, a differentiation is made between ownership of property above, below, and at grade. As the subjacent rights are those under the land that, in this case, the City owns, the closure of the right-of-way includes property below grade as well as above grade in order to avoid possible future legal encroachment issues with underground supporting structures and utilities serving the improvements constructed on adjacent blocks. As many of the buildings in Town Center are constructed with a zero setback from the right-of-way, the foundations for the buildings (some of which are constructed on deeply driven pilings that may not be TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 Page 2 I I I II driven exactly vertical} and utility facilities serving the buildings may protrude beneath the surface of the adjacent streets. The request to vacate the seven (7) square feet of subjacent air space means that the City will relinquish its rights to the property beneath a small portion of the right-of-way to the Virginia Beach Development Authority (VBDA). Upon closure of the eight (8) square feet of Market Street and the City's relinquishment of its subjacent air rights, the underlying area in which any supporting structures and utilities may be located can be done so without constituting encroachment. As part of this agreement, the Virginia Beach Development Authority (VBDA) will also convey 36 square feet of subjacent airspace to the City. This area was reserved by the VBDA per the 2002 Phase 1-A subdivision plat and related Deed of Dedication. A 2004 resubdivision plat and related Deed of Dedication dedicated an 18-foot wide strip of Market Street immediately to the north of this area, leaving out this portion of the subjacent area. This action will simply clean up and finish off what probably should have been included in the 2004 resubdivision. Staff recommends approval of both the closure of eight (8) square feet and seven (7) square feet of subjacent airspace at the northeast comer of Columbus and Market Streets subject to the conditions below. CONDITIONS 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City is normally 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. No purchase price shall be charged in this street closure; however, because the City of Virginia Beach Development Authority (the current owner of the property affected by the street closure) shall reconvey to the City, as consideration for this street closure, any interest in subjacent air space that no longer needE to be reserved by reason of this street closure. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify 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. 4. The applicant shall cause to be conveyed to the City of Virginia Beach any interest in adjoining subjacent air space that is no longer needed by reason of this street closure. In exchange, the City shall convey to the City of Virginia Beach Development Authority the closed portion of Market Street together with the closed portion of subjacent air space, subject to the same terms and conditions set forth in those Deeds of Dedication recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach as Instrument Numbers 200212313087765 and 200402100024237. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions TOWN CENTER ASSOCIATES / VSOA Agenda Item 18 Page 3 within 365 days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-of-way this approval shall be considered null and void. 6. If required by the City of Virginia Beach Public Works Department, the applicant shall relocate, in a manner satisfactory to the City of Virginia Beach Public Works Department, the existing traffic signal pole and any other signal equipment now located within the right-of-way proposed for closure 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. TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 Page 4 I I III AERIAL OF SITE LOCATION TOWN CENTER ASSOCIATES / VaDA Agenda Item 18 Page 5 ~ ~....... ~~ cn< ~~ <I') ~~ ~~ 1.>0> ~~ -lZ l1. . ~~ ~N 1Ilj!: i~ ~ ~ ~ ~lt !II W~i i~~ ~ I VIRGINIA BEACH Bl V[I S!/ I D al BANK Iii ST ~I It;jD:: ffi COMMERCE ~ ST ~l I~~ SITE ~ COlUMBUS ST ~r 1 I 0:: C S N ~ 1 8 J ~ SOUTHERN BlW LOCAllON MAP - SCALE: ," :0 2,000' ~ STRHT' (8" H/JI'j [ ~~:lf:I~arss (lNSl P{}(U()206002JtH9) (lNSr. ptJ(WWQOQ2.I2J7) (fMIIEHL Y CIL'IEL4NIJ SlHfET) (lNSl ~) (nP) f) -N 89'35'57" E -L 200.26' ,~ f~ N 474,594.1037 N 3,474,595.5046 /ll IE 12175006.2284 E 12,175,206 .4835 I ' , J' S/.J8.MCENT AlIi SPACE I (INSr. pXJ2f2J1JtJ!J776S) (lNSr. PfKH021(J(J()H2J7) I (lNSr. prxN(H08OO.552/fJ) (TYP) ~ ~ ~ TOWN CENlER BLOCK 9 ~ " (INST. 1200402060023049) N , I AREA- 44,062 SF l'i1li ~I~ OR 1.012 AC ~ GPIN:14n-54-1429 b NOl[: MERIDIAN SHOYltl HEREON IS BASED ON THE I ~ ~ ~ \/IRGlNlA STAl[ PlANE COORDINAlE SYSl[M, SOUTH ZONE, ~ l C'l NORTH AMERICAN DATUM 1983/1993 HARN (HAD 83/93, W ~ 8 HARN) AND REFERENCED TO \/IRGlNIA 8EACH GPS .., ~ z STATIONS "4737-1744. & "4793.. ~ ~ .., ~~~ (/)~ I ! ~f'II4(f) oc= pIN(F) PIiflWUS RfaHr-OF-WA Y /llDICAna-l (lNSr. p{){H()2Q6002J(H9) SEE DETAIL 'A' PRH/OIJS S 44'35'53. W Hl6Hr-OF-WAY OElJICAl1(W 1038' ' (lNSr. p00212JQJfJ86UJJ) . S 89'3553 W -190.63 t:a.UMBlIS STREET (VAN 1II/J1N H~ (1/18 110. PC /2) (INST. 2002f2JOJ08(UaJ) PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED VlR,GINIA BEACH. VlRGINIA PROJ. NO.: 061618 DRAWN: KCR DATE: 12-18-2008 SCALE:'" - 40' ......____~._^....'_,_~.~.'.'__'.,_,_____........._.....'.'.~........_.,..__,.....", ___~___'_'_~ff___~'__~______ . , SURVEY OF AREA TO BE CLOSED TOWN CENTER ASSOCIATES / VSDA Agenda Item 18 Page 6 CUR\IE TABLE CUR\IE RADIUS LENGlH TANGENT CHORD SEARING DELTA 01 25.00 10.78 5.48 10.70 S 12'42'36' E 24'42'36' 02 28.00 10.71 5.42 10.65 S 1119'42" E 21 '55'04' C3 25.00 3.42 1.71 3.42 N 29"01'48' W 7'50'21' LINE II L2 L3 L+ L5 l6 LENGlH 10.45 2.02 0.97 3.00 11.08 12.72 ~~ ~~ >..~ ~l !K~ q:~~ 18' ~ b I2LZ1 ~ o~ % .1''1 tj.iik~~;;:1 SUBJACENT AIR SPACE 10 BE CLOSED. AREA .. 7 SQUARE FEET SUBJACENT AIR SPACE TO BE CONVEYED TO 1HE CITY OF 'I'IRGlNIA 8EACH. AREA = 36 SQUARE FEET PORTlON OF MARKET STREET AND 3' PUBlIC INGRESS!EGRESS ANO UTILITY EASEMENT TO BE CLOSED. AREA .. 8 SQUARE FEET FWE'/ifOUS IWGHT-U"-WAY 1IElJICAl1(W , (1NS1: ./2OO212J(JJt)1J6M.J) H 89'35'53' E ,@, PIIl1UC bVGl'E.S:S~ t:l AM) VlN.ITY EASEMENT :! (lIST. p00212J1J1M7765) (lIST. PfJ(HQ21()()()h2J7) (INST. ~Di08lJ0552.IO) (nP) l5 N 89'35'53' E J' SllBJACENT AIH SPACE" 2.28' (lNST. ptJ02f2JfJ(J8776S) (lNST. PfXH02fotJ02UJ7) (lNSr. ~2~) (TrP) DETAIL A SCALE: " . 10' PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED SHEET 2 OF lVlSA,P ,C. o EN~TAl. SCIENCES .<lEOSOENCES . r.......'ING. SIJR~G 'EN<1IHEERING -LANDSCAPE ARCHITECTURE 5033 ROUSE: IlRM. WlClNlA BEACH. VA 2346 757-490-9264 (Of C) 757-490-06J4 (FAX) PROJ. NO.: 061618 DRAWN: KCR DATE: 12-18-2008 SCALE: I' .. 10' VIRGINIA BEACH. VIRGINIA DETAIL: SURVEY OF AREAS TO BE CLOSED TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 Page 7 ELEVATION OF BUILDING PROPOSED (LOOKING AT CORNER OF COLUMBUS STREET AND CENTRAL PARK AVENUE} TOWN CENTER ASSOCIATES / VeDA Agenda Item 18 Page 8 I I Street Closure 1 2 3 4 5 03/09/04 03/11/03 09/24/02 05/10/05 06/28/05 02/08/00 I II :~ UtJ c____ Granted Granted Granted Granted Granted Granted ZONING HISTORY TOWN CENTER ASSOCIATES / VeDA Agenda Item 18 Page 9 z o I I !< u I I ~ ~ ~ ga p CI) o ~ u ~ ga ~ CI) ~ DISCLOSURE STATEMENT I APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, , partners, etc, below: (Attach list if necessary) Town Center Associates, L.L.C. Members: City Center Associates, LLC and Armada Hoffler Properties, L.t.C.; Managecs: Louis S. Haddad, Anthony P. Nero and Gerald S Diyaris 2. List all businesses that have a parent-subsidiary 1 or affiliated business entity2 relationship with the applicant: (Attach list if necessary) Armada/Hoffler entities and numerous Town Center-related and other unrelated business entities are affiliated with the Applicant through its principals: Daniel A. Hoffler, A. Russell Kirk and Anthony P. Nero; ::ind niVRTi~ ,an..i"';~JIi:: t-hrnniih ;t-c. prinr;p::ll. ~pr:ll'" ~ niv:lri~ o Check here if the applicant Is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if properly owner is different from applicant. If the property owner Is a corporation, partnership. firm. business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers. members. trustees, partners, etc. below: (Attach fist if necessary) City of Virginia Beach Development Authority (see list of members attached as Exhibit "B ". 2. List all businesses that have a parent-subsidiari or affiliated business entitl relationship with the applicant: (Attach list if necessary) (]I Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 1 & Z See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subjeclland?' Yes _ No ~ If yes. what is the name of the official or employee and the nature of their interest? Str~~' ClflSLJre A;JlJlh::01lion Pa~e lOn' 11 ReVised 71",/07 TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 Page 10 z o ~ ~ U I I ~ ~ ~ ga ~ r:J) o CERTIFICATION: I certify that the information contained herein Is true and accurale. ~ I understand that, upon receipt o( notification (postcard) that the application has been scheduled (or public hearing, I am responsible (or obtaining and posting the required sign on the subjecl properly al least 30 days prior to the scheduled public hearing according to the instructions In thiS package. The U undersigned also consents to entry upon the subject property by employees otthe Department of Planning to photograph and view the site (or purposes of processing and evaluating this application. Town Center Associates. L.L.r.. 1:...., B . .r--' y. rc~i~~~ r .tf.....je,. I r.,.., City of Virginia Beach Development ga....... Authori ty (if differentthan applicant) By: _Ot')lIaIJ \J...Jl n~ I (J,a.;r (Print) J ' F-c r:J) ~~!f:"::" '_\.':,,,r DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services. real estate services, financial services, accounting services. and legal services: (Attach list if necessary) Town Center Associates. L.t.C.; Faggert & Frieden. .P.C.; MSA. P.C.; Divaris Real Estate, Inc.; Cherry. Bekaert & Holland; Armada/Hoffler Construction Co.; Beatty Harvey & Associates. Architects 1 .Parent-subsldiary relationship' means "a relationship that exists when one corporation directly or indirectly owns shares possessing mora than 50 percent of the voting power of another corporation.' See State and Local Government Conflict of Interests Act. Va. Code ~ 2.2-3101. 2 "Affiliated business entity relationship. means "a relationship, other than parent- subsidiary relallonship, that exists when (i) one business entity has a controlling ownership Interest In the other business entity. (ill a controlling owner in one entity is also a controlling owner in the other entity. or (iii) there is shared management or control between the business entities. Factors that should be considered in detennining the exislence of an affiliated business entity relationship include that the same person or substanllally the same person own or manage the two entitles; there are common or commingled funds or assets; the business entllles share the use of the same offices or employees or otherwise share activities. resources or personnel on a regular basis; or there is otherwise a close working relationship between tile entities." See Slate and Local Government ConOid of Interests Act. Va. Code S 2.2-3101 _(/,..(/L- Applicant's Signature Slleel Closure ,~r>p1ica\lClrl Pagellofl1 ReVISed i'l3IfJ1 III TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 Page 11 Exhibit "B" List of Members of the City of Virginia Beach Dc\'clll(lmenl Authority C. !\>'\axwell Bartholomew. Jr. Dan H. Brockwell Teresa H. Carrington Douglas D. Ellis Donald v. Jellig Page G. Lca Paul V. Michels Jerrold L. Miller Jllhn W. Richardson PrescoU Sherrod Elizabeth A. Twoh) S.'{'Ii,"",J8SS\107,hlubllII. I.ISI ufVIlD/I Mcml><rsd"" DISCLOSURE STATEMENT TOWN CENTER ASSOCIATES / VSDA Agenda Item 18 Page 12 TOWN CENTER BLOCK 10 APARTMENTS: Map E-7 Mo Not. t.o Scole ".J L __ .Fl I L--- '" ~ OSI ,,~ u c:::::::J Tmvn Cent r Block 10 A1Jts. Inc. r~Jd~-3 r,~ ~J=~~~2J ~ I ~~ P VIRGIN'''' RJ;;A r.u .. Bl. VlJ. - = f---. ~ ~ .n'~ I I i.jA '- l....-~ \ ,~ : I Z :.: (5) E GY6j"~ o d---u= I~ =..1 It.1C S1. ~ ~I~ ~ ~ ~"'r'o\' f:c..'irrR J ~. u~ Oal1+>>fi tJJ l I~ ..... I , 0:: D' ~ o 0 = Jl...._ I , ~f". ~ i .. ,~ BJ 3~ ~ .lINN :!iT, ."11.& ~~ a ~ ~J 2 o c ~iJnm ~ = c B:.J~d".J~ {J' ~o FC::> ~ B~ A ~ ~go (5) OJ' (Ja ~ _ g( 0)' ~~~ I" '--'---" ~ ~ D_......>>".... ..... :::;::0. . ~q:~ ~ rr G' CiJIOI: ..r B-~A ''". 'IT~ - apA .. ==( J< B- N11." ( J , = cO ..., "t" SOUTHERN ~ - ~~81 )2 L..,--- ! : B-~ C1B-.} . ~" ,,0. "'" ~c ~ Ull I _ _.,;.;:11 ~:r I ~ 3 ~ ~. I Q: ~E ~- ~~: (I Ir =j CUP for Public or Private College or University Relevant Information: · Lynnhaven District · Applicant requests a Conditional Use Permit to allow a Public or Private College or University to occupy a portion of the building. · Classes are primarily offered online. · Parking for the use will be met in the Block 7 and 10 parking garages; the required parking study for the use has been submitted and approved. · AICUZ is Less than 65. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (10-0-1). · Consent Agenda. · No opposition. I I III ,,~::~..,., .rf:~I'''' ..,...+'~, ref..". ...~, oJ" . ~ ~1 (,,: - i~) ~~\~ :~~ \\~;- ./ i1 ~..~~....~...: .-.; .~~.::.:,..# CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: TOWN CENTER BLOCK 10 APARTMENTS, L.P., Conditional Use Permit, public or private college or university, 4544 Columbus Street (GPIN 14775445380181). L YNNHAVEN DISTRICT. MEETING DATE: March 24, 2009 . Background: The applicant requests a Conditional Use Permit to allow a Public or Private College or University to occupy a portion of the building, commonly known as the Cosmopolitan Apartments. The building is located on 'Block 10' of the Town Center, which is bounded by Main Street, Town Center Drive, Columbus Street, and Central Park Drive. The site is zoned B-3A Pembroke Central Business District. . . Considerations: A private university proposes to operate on the first floor of the building. The school offers a broad range of degree and certificate programs at both the undergraduate and post-graduate levels. Anticipated enrollment will ultimately reach 1 ,400 students; however, most of the students will take classes online. The first floor of the building will primarily be used for offices of the university. Anticipated employment will ultimately reach 32 staff. Parking for the university will be met in the Block 7 (Westin) and 10 (Cosmopolitan) parking garages; the parking study required by the Zoning Ordinance has been submitted and approved. The proposal is consistent with the Comprehensive Plan's recommendations for this area, which call for a full array of "urban services, [with a] detailed human- scale design and a compatible mix of uses." The addition of this educational facility to the Town Center area will complement surrounding existing and future uses, and will enhance the Town Center as a prominent activity center in the city and region. No one appeared at the public hearing in opposition to this request. . Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0 with 1 abstention to approve this request. Town Center Block 10 Apartments, L.P. Page 2 of 2 . Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department CltyMana~~ k ."C8CJ"l7't. I I REQUEST: Conditional Use Permit (Public or Private College or University) ADDRESS I DESCRIPTION: 1544 Columbus Street GPIN: 14775445380181 ELECTION DISTRICT: LYNNHAVEN I II #20 February 11, 2009 Public Hearing APPLICANT I PROPERTY OWNER: TOWN CENTER BLOCK 10 APARTMENTS, L.P. STAFF PLANNER: Faith Christie SITE SIZE: 42,552 square feet (10,240 square feet unit size) AICUZ: Less than 65 dB DNL SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow a Public or Private College or University to occupy a portion of the building. The proposed private university offers a broad range of degree and certificate programs at both the undergraduate and post-graduate levels. Anticipated enrollment will ultimately reach 1,400 students. Anticipated employment will ultimately reach 32 staff. Parking for the use will be met in the Block 7 and 10 parking garages; the required parking study for the use has been submitted and approved. LAND USE AND ZONING INFORMATION EXISTING LAND USE: The site is Block 10 of the Town Center project, consisting of The Cosmopolitan multi- family dwellings, parking garage, and retail uses. SURROUNDING LAND USE AND ZONING: North: · Town Center, Block 4, Armada / Hoffler office building / B-3A Pembroke Central Business Core District TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 1 South: East: . Stormwater management facility / B-3 Central Business District . Block 11, Town Center, Parking loti B-3A Pembroke Central Business Core District . Blocks 8 - Retail and Restaurants - and Block 9 - Construction staging site, Town Center / B-3A Pembroke Central Business Core District West: NATURAL RESOURCE AND CULTURAL FEATURES: The site is entirely impervious, developed with a 1 O-story multi-use building. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): Constitution Drive adjacent to the site is a four-lane divided minor urban arterial. The Master Transportation Plan designates a divided roadway with bikeway within a 100-foot right-of-way. A Capital Improvement Program (CIP) project is slated for this area. The Pembroke Area Comprehensive Transportation Plan (CIP 2-238) is ongoing and involves a transportation study for the Central Business District surrounding Town Cente'r. This study will develop short-term, mid-term, and long-term alternatives for transportation needs in the area. As part of the short-term improvements, Constitution Drive Extended (CIP 2- 208) is for the widening and new construction of a four-lane highway along Constitution Drive from the intersection of Columbus Street to Bonney Road. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Constitution Drive 6,793 ADT' 22,800 ADT Existing land Use .t. - 113 ADT Proposed land Use 3 - 3,332 ADT (238 AM Peak Hour; 84 PM Peak Hour) Average Daily Trips :1 as defined by 10,240 SF of office space 3 as defined bv colleae I university use with 1,400 students (ultimate number of students) WATER and SEWER: This site is connected to City water and sewer. SCHOOLS: School populations are not affected by the request. Recommendation: Staff recommends approval of this request. EVALUATION AND RECOMMENDATION TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 2 I I III Comprehensive Plan: The Comprehensive Plan designates this area as being within the Strategic Growth Area 4. Mixed uses offering an efficient use of land resources, full use of urban services, detailed human-scale design and a compatible mix of uses are recommended for this area. For properties within Strategic Growth Areas, the Plan emphasizes"... these areas are designated to absorb most of the city's future growth, both residential and non-residential and, as such, are planned for more intensive uses than most other areas of the city. Integrating, not separating, a diverse cluster of land uses result in a compact, yet compatible mix of uses. They include office, retail, service, hotel and where appropriate, residential uses," (page 57, Policy Document). Evaluation: The proposal is consistent with the Comprehensive Plan's recommendations for this area, which call for a full array of "urban services, [with a] detailed human-scale design and a compatible mix of uses." The addition of this educational facility to the Town Center area will complement surrounding existing and future uses, and will enhance the Town Center as a prominent activity center in the city and region. 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. TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 3 AERIAL OF SITE LOCATION TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 4 I I III IIUif I III ~!~ i 1!'1 1 J:, 11, :! ,. I ~:!HJ. utt if:) It" f,,'l e It I llli!::dllll hl~:lilll::tt!!I:: ' ,g IE I II n,l. ",!nKd '.,1 .\" ~l'.",=" ~ a J f t --'z II << z-, 0 o a.. ! in;; ~ I I -.::i mo dli , c..:> :1;>- 15~ iH t! I' i 'I 1;; C m U c ~'" ~~ ......, i I D I ! ; ~ I', t!i II , / n \, 'I II :\\ , ~, \\ \1 tl .' I 'I vI! "I' , i illl > , 11 ~' II nilli! ~i II ~i I' 1o;~1 i I~! 'tll ,~: I: I i II 'II II I ' H II "t,1I u ~==--=~.=:::r-.'; -=.....::t.-~~ _.,'" ~, ,r=.~-~",,,,,,,,~~,,,_,,,;-==--~~-=:"":""'::-;::;"'., ',~.~-'^~~~'-:~==::::=~" ',' j 'I 1 ";" I' I. ,.'1 I 1.-,1 -':~-=-=-yE..@~"L-F=~'<~)l . ~:, '\-.1 "":;:;; ( " Ii , ' . , ~ tc4';~~~ "",^;~...--'-':--:;::::;;';';;~~;:';;-"~:--. i~ Ii i~' ~ · id ~ f~~ ti l ~;'~ h , ~l ~ E' e! I I \ .f, ! , :1 II ' ~:' . if ,'.,f ..' Ir ~' ' i' .:.~-l t' '.-- -~\ .<"/ ~ =-~:--:.- ",;' ( ~ - - - - ~. t~ t" , . ! ~ ): EXISTING SITE PLAN TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 5 II EXISTING BUILDING TOWN CENTER BLOCK 10 APARTMENTS. L.P. Agenda Item 20 Page 6 I I III (:--~:~:"" ". .:.... r~ '.:, ~~~,~~":t~. ~. ~ ; , ' ~ l~' ~,fI...'. ><\I. ....,,, ''iilti .~ I ,I ,,,,,,,*" I .'1' 4 ~' :. j : 1, ':' " , .,Jr, t': ,'" ,...j.. ',", , ' , ._j .. .. '. "'" 'T' ',," :" ' , . .. " .. _ _.. ..l", '.'.' 'r...,: ':, '. -, - -_. , . . >, ""\ ,,. '. f'M,. .. ., ......,,"~~ ,.'.. " ' " i '. . , " "iiiI~: -, -: '''.'''!^'','' ,:" ,,>jC ,.t., '~",~ ..~' ,..,,""'" ' .,...,.-~' ~C:~l>-li:~~'f' ',' ;, 4' ..,.. . , " '~ ""',' 4' I"" Y l' .- . :a:, "'~.r ';i... '''t "," EXISTING BUILDING TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 7 Map E-7 Mo Not to Scole ".J L.... .F\ IL_....~ os, ~ ~v c::::=:::J = . .~ - ; p "Q: ..u 1--': = dI .~t.1C ST. o ~ oft- <>t tn I ~ 0 0 cod) = ~ ~ ::~ :~ ~ J'lr.Jrll5 ~ ~ ~ v--v" ...J ' ~ i.:] J ,. J: 0>> Jo-o--- 5\,8 ~i ~~ 1 . 6/14/06 2, 3/11/03 9/24/02 3. 2/8/00 4. 11/12/08 10/10/00 Town Cent r Block 10 Abts. Inc. :~Jd~-J fl' tJ=~=~~~2J ~ ~-~ r-, I .L ~1il~ ~~lU~ ~ ~ " ~ nu e Dc 0 Bi)~l ,1m" ,Ili n 9[61'0,1 ;Ii~~ J=iJ . L- c;:>G1O'c~ ==( ~ VIRGl~ RKAr:l1 a,-BLVD. __ 7"1 I. 1 ~,* ~ Ft.-tDl ~ L.' Bi" ~..~ ~ l I~- 1~1' ~- ~ ~ Bj:~ ~ ~ a.-.ID Ei"- 34 0' [5Jr:- [J~ ~ ~ ~ R R_,"""~.",, .".1. I ~'!:1 w..~ . ~~ -, ~l~ B -..JA nu SOUTHERN I v L : B-~ "IN.-) ,.... = ~,...., r- -- ..;::::; It.l.~L,,l.s~.ili.~1 " '- (E ~ ~ ~ >: 08-3 CUP for Public or PrN<lte College or University Conditional Use Permit (Public or Private College or University Street Closure Conditional Use Permit Multi-famil dwellin s - 342 units Rezoning (B-3 Central Business to B-3A Pembroke Central Business Core District) Street Closures 10/27/78; 12/15/75; 10/14/74; 7/22/74 Conditional Use Permit (Public or Private College or University Rezoning (B-3 Central Business to B-3A Pembroke Central Business Core District - :i ~ I n r8~~ [: llIY~ Approved Approved A roved Approved A roved Approved Approved ZONING HISTORY TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 8 z o I I ~ U Town Center Block 10 Apartments, L.P.; General Partner: TeA la, Inc.; I I Limited Partners: Town Center Associates 10, L.L.C., D & F Beach, LLC .....:I 2. List all businesses that have a parent-subsidiaryl or affiliated business entity2 ~ relationship with the applicant: (Attach list if necessary) ea Armada Hoffler entities and numerous Town Center-related and other un- related business entities are affiliated with Applicant through its principals: Daniel A. Hoffler, Russell Kirk, Louis S. Haddad and Anthony P., Nero{ various Divaris entities through its principal Gerald S. Divarts; , Drucker and Falk, L.L.C. through its principal David C. Falk. ~ o Check here if the applicant is NOT a corporation. partnership. firm, business, or I I other unincorporated organization. ~ PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other r......, unincorporated organization, complete the following: ........ 1. List the property owner name followed by the names of all officers, members, .-- . trustees, partners, etc. below: (Attach list if necessary) ...... ~ ~ t:::> ~ o I I ~ I I Q Z o u I I II DISCLOSURE STATEMENT ~ APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2. List all businesses that have a parent-subsidiary 1 or affiliated business entitl relationship with the applicant: (Attach list if necessary) o Check here if the property owner is NOT a corporation, partnership, firm. business, or other unincorporated organization. 1 & 2 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes _ No ~ If yes, what is the name of the official or employee and the nature of their interest? Condilional Use Permil Application Page 9 of 10 Revised 7/312007 III TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 9 z o I I ~ u :-::I.,. ,:::t....c ~ ~ ~ ~ ~I ~ CI':} ;::::J ~ o I I I ~ I I c:::a Z o u DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal aervices: (Attach list if necessary) Town Center Associates, L.L.C.; Faggert & Frieden, P.C.; Armada/Hoffler Construction Company; Cherry, Bekaert & Holland, L.L.P.; M.S.A., P.C.; r.MSS Ar~hitects, P C j Div~ris Real Estate. Tnc. , "Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code ~ 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis: or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code !} 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public heanng, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the Instructions In this package The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application " APPLI CANT !PROPERTY OWNER: TOWN CENTER BLOCK 10 APARTMENTS, L.P. By: TeA 10, INC. Its: General Partner By: l~'. :. ~ \ . ..~d( .,\ Print: l, Its: i\.t">ll \21"r Condilional Use PermIt Application Page 1001 10 ReVIsed 7/3/2007 TOWN CENTER BLOCK 10 APARTMENTS, L.P. Agenda Item 20 Page 10 I I III Item #20 Town Center Block 10 Apartments, L.P. Conditional Use Permit 4544 Columbus Street District 5 Lynnhaven February 11,2009 CONSENT Joseph Strange: The next item is item 20, an application of Town Center Block 10 Apartments, L.P. for a Conditional Use Permit for a public or private college or university on property located at 4544 Columbus Street, District 5, Lynnhaven. Mike Nuchols: Good afternoon once again for the record, Mike Nuchols representing the applicant. I'm happy to answer any questions. I don't think there are any conditions. Joseph Strange: No conditions. Mike Nuchols: We gratefully accept those. Joseph Strange: Thank you. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Ron Ripley to review this item. Ronald Ripley: You're working me out. Thank you Joe. This is a Conditional Use Permit also and it is for a private college or university. It will be located on the ground floor of the non-residential space of the Cosmopolitan apartments. It is 10,240 square feet in the non- residential space and contains about 42,000 square feet. It is a university use. It's the . University of Phoenix that is going to occupy it. I've been told by Economic Development Mark Wawner, that this is an "E" learning center, a distant learning. I was concerned that at the informal meeting that this would take up a lot of parking. Apparently, it won't be because it will be distant learning. I'm sure they will have some sort of classrooms, people coming and going but no where near the need for parking, I believe on what Mr. W awner represented. It's a Conditional Use Permit. We think it's an appropriate use. It's a good use within the Central Business District, and placed it on consent. Joseph Strange: Thank you very much Ron. Madame Chairman, I make a motion to approve item 20. Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. Mr. Redmond? David Redmond: Madame Chairman, I will be abstaining on item 20, as I have a business conflict. Janice Anderson: Thank you. Item #20 Town Center Block 10 Apartments, L.P. Page 2 AYE 10 NAY 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KA TSIAS AYE LIVAS AYE REDMOND RIPLEY AYE RUSSO AYE STRANGE AYE ABS 1 ABSENT 0 ABS Ed Weeden: By a vote of 10-0, with the abstention so noted, the Board has approved item 20 for consent. , REGENT UNIVERSITY lAKE JAMES 0'2 CUP {or Sludenl Donnilories Relevant Information: · Centerville District · Applicant requests a Conditional Use Permit to allow development of the site for two (2) student dormitory buildings and a dining hall. The proposed buildings will be adjacent to the existing dormitories. · Dormitory 1, proposed on the western side of the site, will house 480 freshman and sophomore students. These students will not be allowed to have vehicles on campus. Dormitory 2, proposed on the eastern side of the site, will house 325 juniors, seniors, and graduates. Evaluation and Recommendation: · Planning Staff recommended approval. · Planning Commission recommends approval (11-0). · Consent agenda · There was no opposition. I I II! "'.A~~ rC;p;.~... ..{ ~",;,~ rS..... ..~~ fe. ';~'i ~l,){ .so .~, :. ';. .-;..,.' ZI-' ~~.. ~:7 ~~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: REGENT UNIVERSITY, Conditional Use Permit, student dormitories and dining facility, 1352 /1354 Regent University Drive. CENTERVILLE DISTRICT MEETING DATE: March 24, 2009 . Background: The applicant requests a Conditional Use Permit to allow development of the site for two (2) student dormitory buildings and a dining hall. The site is located on an undeveloped area of the Regent University campus, south of the Communications Building and west of two recently constructed dormitories. . Considerations: The proposed buildings will be adjacent to the existing dormitories. The proposed buildings will be four stories in height and 122,000 square feet each. Dormitory 1, proposed on the western side of the site, will house 480 freshman and sophomore students. These students will not be allowed to have vehicles on campus. Dormitory 2, proposed on the eastern side of the site, will house 325 juniors, seniors, and graduates. The proposed dining hall will be 29,000 square feet and situated between the two dormitory buildings. Architecture for the proposed buildings will be in keeping with the existing architecture in the CBN / Regent University complex. The required parking for the dormitories is 268 spaces. Parking for students will be provided in the adjacent Communications building parking lot, which has parking spaces in excess of its regular daily needs due to the fact that there is a theater in the building (the location of the theater in the building required that the parking be designed for those peak parking events when the theater is in use). The Communications building parking lot has 600 to 650 vacant parking spaces during the day. Additionally, when there are events at the theater, those events occur in the evening or weekends when parking spaces usually used during the weekday by faculty, staff, and students are vacant. Staff, therefore, concludes that there is sufficient parking available in the Communications building parking lot to handle the parking needs of the dormitories. The Zoning Ordinance allows parking to be set by the Planning Commission and City Council as part of a Use Permit. Thus, this parking arrangement is addressed by Condition 3, recommended as part of this Use Permit. Regent University Page 2 of 3 The request for a Conditional Use Permit for student dormitories and dining hall is acceptable. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The proposal is compatible with nearby residential neighborhood as well as the business areas. Adequate parking is available on campus and generated traffic is minimal. There was no one present at the Planning Commission's public hearing in opposition to this request. . Recommendations: The Planning Commission placed this request on the Consent Agenda, passing a motion by a recorded vote of 11-0 to approve this request with the following conditions: 1. The development of the site shall substantially conform to the submitted exhibit titled "Regent University Campus Expansion" dated 11/13/08 and prepared by Vanasse Hangen Brustlin, Inc. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. 2. The applicant shall submit to the Current Planning staff the architectural elevations, a list of building materials, and building colors for the proposed buildings during detailed site plan review. The proposed architecture and building materials shall be consistent with the quality architecture currently existing on the Regent University campus. 3. Parking for students occupying the dormitories shall be provided on-campus. Students who are assigned residences in the dormitories shall acknowledge in writing that the student understands that parking shall be on campus and not off-campus in the surrounding commercial and residential areas. Such acknowledgement shall be made on a form provided by and stored by the University. 4. The proposed dining hall shall not be available to the general public. 5. The developer / owner shall provide a photometric plan for review / approval by the Police Department or appropriate City staff. To the greatest extent possible, lighting should overlap and be uniform throughout the parking lot. It is recommended that all lighting on the site be consistent with those standards recommended by the Illumination Engineering Society of North America. . Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map I I III Regent University Page 3 of 3 Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department CItyManage~ It:. .~ ~ REQUEST: Conditional Use Permit for student dormitories and dining hall #22 February 11, 2009 Public Hearing APPLICANT I PROPERTY OWNER: REGENT UNIVERSITY STAFF PLANNER: Faith Christie ADDRESS I DESCRIPTION: 1352 and 1354 Regent University Drive GPIN: 14557768620000; 14557766700000; 14557771220000; 14557761050000; 14557734990000; 14557742690000 ELECTION DISTRICT: CENTERVILLE SITE SIZE: 13.338 acres AICUZ: Less than 65 dB DNL SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow development of the site for two (2) student dormitory buildings and a dining hall. The proposed buildings will be adjacent to the existing dormitories. The proposed buildings will be four stories in height and 122,000 square feet each. Dormitory 1, proposed on the western side of the site, will house 480 freshman and sophomore students. These students will not be allowed to have vehicles on campus. Dormitory 2, proposed on the eastern side of the site, will house 325 juniors, seniors, and graduates. The proposed dining hall will be 29,000 square feet and situated between the two dormitory buildings. Architecture for the proposed buildings will be in keeping with the existing architecture in the CBN I Regent University complex. The required parking for the dormitories is 268 spaces. Parking for students will be provided in the adjacent Communications building parking lot, which has parking spaces in excess of its regular daily needs due to the fact that there is a theater in the building (the location of the theater in the building required that the parking be designed for those peak parking events when the theater is in use). The Communications building parking lot has approximately 650 vacant parking spaces during the day. Additionally, when there are events at the theater, those events occur in the evening or weekends when REGENT UNIVERSITY Agenda Item 22 Page 1 I I III parking spaces usually used during the weekday by faculty, staff, and students are vacant. Staff, therefore, concludes that there is sufficient parking available in the Communications building parking lot to handle the parking needs of the dormitories. The Zoning Ordinance allows parking to be set by the Planning Commission and City Council as part of a Use Permit. Thus, this parking arrangement is addressed by Condition 3, recommended as part of this Use Permit. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Vacant, wooded land SURROUNDING LAND USE AND ZONING: North: South: East: · Regent University / 0-2 Office, R-40 and R-5D Residential . Vacant land / R-5D Residential . Centerville Turnpike · Across Centerville Turnpike is the Lake James subdivision and Brandon Middle School / R-10 Residential (Open Space) and R-5D Residential . Regent University Drive · Across Regent University Drive is vacant land and Amerigroup / 1-1 Light Industrial West: NATURAL RESOURCE AND CULTURAL FEATURES: The site is wooded and does not have any significant natural resources" There are no cultural features associated with the site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Centerville Turnpike in the vicinity of this application is considered a two-lane undivided minor suburban arterial. The Master Transportation Plan (MTP) proposes a divided facility within a 150-foot right of way. There is a project for this portion of Centerville Turnpike in the 2008-09 Capital Improvement Program, in the 'Requested But Not Funded' listing. That project is for the construction of a four-lane divided roadway with a 167 foot right-of-way section. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Centerville 18,800 ADT 1 15,800 ADT 1 (LOS D) Existing Land Use ;l - 806 Turnpike (2007) -17,100 ADT (LOS E) ADT Proposed Land Use 3 - 774 ADT Average Daily Trips 2 as defined by 13.4 acres of R-5D zoning 3 as defined by 325 new students . Traffic Engineering based the trip generation for the proposed dorms on a memorandum written by Scott Chewning, VHB, dated January 20,2009, regarding the type of occupants for each dorm. The memorandum states that the first dormitory will have 480 beds and will house only freshman and sophomores. The important statement in the memo is that the residents of this dorm will not be allowed REGENT UNIVERSITY Agenda Item 22 Page 2 to have vehicles on campus. Therefore, Traffic Engineering has determined that the 480 bed dormitory will not generate any trips. Traffic Engineering is recommending that the student type and vehicle restriction be made a condition of approval for this Conditional Use Permit. Otherwise, the traffic impact on the already over-burdened roadway network around Regent University will be greater than what is shown in these comments. . The second proposed dorm will have a maximum of 325 beds and Traffic Engineering has assumed in the trip generation data the worst case scenario that all 325 of these beds will be filled by students that are increases in enrollment to Regent University. If, as written in Mr. Chewning's memorandum, the new dorms will serve both existing students who currently live off-campus and future increases in Regent University enrollment, these dorms will generate significantly less than the 774 additional daily vehicular trips. . The proposed dining facility to be built in association with the new dormitories is not expected to generate any additional vehicular trips on the public roadway network. The dining facility will potentially reduce the number of off-campus vehicular trips. WATER: This site must connect to City water. There is an existing 16-inch City water main along Regent University Drive, and an existing 12-inch City water main along Centerville Turnpike. SEWER: This site must connect to City sanitary sewer. The site is not within an existing pump station service area. The applicant must provide pump station analysis for a potential receiving pump station. There is an existing 12-inch City sanitary sewer gravity main and an existing 12-inch City sanitary force main along Regent University Drive. There is an existing 10-inch City sanitary sewer gravity main along the northern property line of the proposed project. SCHOOLS: School populations are not affected by the request. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the conditions below. Comprehensive Plan: The Comprehensive Plan map and land use policies place this site within Strategic Growth Area 2, one of the 12 areas designated to absorb most of the city's future growth, both residential and non-residential. The Strategic Growth Area (SGA), located along Interstate 1-64 adjacent to the CBN complex, is largely undeveloped and has ready interstate access capabilities. There is significant potential here for high quality development meeting the goals of the city and the private sector. Pg 34-35 Specific recommendations in the Comprehensive Plan for SGA 2 are: . A mix of some or all of the fOllowing uses would be appropriate within Strategic Growth Area 2: office, hotel, educational, institutional, limited retail and residential. Buildings exhibiting high quality architecture and complementary landscaping and site design should be oriented toward 1- 64. Proposed structures in this area should follow the general architectural vernacular exhibited REGENT UNIVERSITY Agenda Item 22 Page 3 I I III . by the existing structures located on the CBN / Regent University campus. Roadway access to this complex should be oriented from either Centerville Turnpike or the proposed City Line Road. Pedestrian systems in this area should connect to adjacent properties located to the west and southwest in order to provide access to a future regional park, an area now used as the city landfill. (Pg. 65) Evaluation: The request for a Conditional Use Permit for student dormitories and dining hall is acceptable. The proposal is in conformance with the Comprehensive Plan's recommendations for this area. The proposal is compatible with nearby residential neighborhood as well as the business areas. Adequate parking is available on campus and generated traffic is minimal. CONDITIONS 1. The development of the site shall substantially conform to the submitted exhibit titled "Regent University Campus Expansion" dated 11/13/08 and prepared by Vanasse Hangen Brustlin, Inc. Said plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. 2. The applicant shall submit to the Current Planning staff the architectural elevations, a list of building materials, and building colors for the proposed buildings during detailed site plan review. The proposed architecture and building materials shall be consistent with the quality architecture currently existing on the Regent University campus. 3. Parking for the students occupying proposed Dormitory 2 (325 beds) shall be provided in the Communications Building parking lot. There shall be no off-campus parking within one (1) mile of the site, with the exception of vehicles parked on private property where the student has written permission from the property owner to park on said property. 4. Students occupying Dormitory 1 (480 beds) shall consist of freshman and sophomores; said students shall not be allowed to have automobiles on campus. 5. The proposed dining hall shall not be available to the general public. 6. The developer / owner shall provide a photometric plan for review / approval by the Police Department or appropriate City staff. To the greatest extent possible, lighting should overlap and be uniform throughout the parking lot. It is recommended that all lighting on the site be consistent with those standards recommended by the Illumination Engineering Society of North America. 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. REGENT UNIVERSITY Agenda Item 22 Page 4 AERIAL OF SITE LOCATION REGENT UNIVERSJTY Agenda Iteli 22 Page 5 :?-o! .",-~ r-~i Zt.l,J! ;iJ ~i 192' _:J: I -,i; ! .d ~,: F ,., ... "'" '" ~ g g '" 'l' , ,1 " I ~ ~ a5 E ~ ::. " '" G -, ~ t; ~ ;5 E- ~ :it ~ ~ 6 % t .r .ft '" o ~ t 'i :5 (p ~ 'f' 't. ~ !f j :; it. 2 1: ~ ;i. ...: ., >:, 't ~ ',1 ft ,;;: i .i: :! ~ -" i <' :;, b ~ 't'J' i. t7 ,0 ~ y, '" 1ft ~ .f d ~ J it ~ .,' ;. -J: .s l;.; ~ a; "" "" C r, ..; ," t"f': I' ",' III t tJ '" iJ .'!i. E g " ~ 't: B '" 0- j '" g :: .i':: " ~, i .- if, ~. ~ ,,: ~ ! ~, :;: 0 ~ is C ..;; c [$ ~ € '(;. :5 ~ E: E ~ ~ B ~ ~ .:;; Cl: J, ,,/i <1;: 00 . .... ,...... Z - ~ .... -- :? w..; ~ .....J ;::l e- M .., Z c 0 lii.' ~ ::; < ,.. m <:; !\1 ~ -l '5 i :..t.' c.... <<l i c ~ Z '$ ;;;) ;; ~ , ~ '" 11 f - ! ! :;; l- ., 0.:- ~ ," ~ g C' ~ !l: 7. cr. .... :~~ ~ >>i .' MASTER PLAN REGENT UNIVERSITY Agenda Item 22 Page 6 :\ f . IIi . I,.. II lJ~, J1i .____il~l.dL_" I ~ "7 l jt ~. 11.1 t~i "'I _....L____ i I Ii I! i! ~ ~ o~ ~ ~ ~ ,.; -- ~ '" z~ ~ '"' .. "" ~ ~~\Ij ~~< ~ .. u ~I: \ i i \ ! \ PROPOSED SITE PLAN REGENT UNIVERSITY Agenda Itel1l22 Page 7 I I III EXISTING DORMITORIES REGENT UNIVERSITY Agenda Item 22 Page 8 ulKE "'MES 0'2 CUP {or Studenl Donnilor;es 1. 12/12/00 Rezoning (R5-D Residential to 0-2 Office) . Approved 7/6/93 Rezoning (R5-D Residential to 0-2 Office) Approved 1/16/84 Rezoning (R-8 Residential to H-1 Hotel), (R-8 Residential to R-1 Approved Residential), Conditional Use Permit (satellite dish), and Conditional Use Permit (horse stables) 12/14/81 Rezoning (R-8 Residential to A-2 Apartment) Denied Conditional Use Permit (student housing) Approved 6/15/81 Rezoning (0-1 Office to B-2 Business, B-2 Business to H-1 Hotel, R-8 Approved Residential to H-1 Hotel, R-8 Residential to 0-1 Office, and B-2 Business to 0-1 Office) 2/7/77 Street Closure Approved 5/20/74 Rezoning (B-2 Business and H-1 Hotel to 0-1 Office, 1-1 Industrial to B-2 Approved Business) 2. 1/16/09 1-1 Light Industrial, R-5D Residential and 0-2 Office Districts to Withdrawn Conditional R-5D Residential District with a PD-H2 Planned Unit Overlay District. 9/8/98 Modification of Conditions 1/13/98 Rezoning (B-1 Business, 1-1 Light industrial, R-5D Residential to 0-2 Approved Office) and Conditional Use Permit (Retirement Village) Approved REGENt UNIVERSITY Agenda Item 22 Page 9 I I III Street Closure 10/23/93 Conditional Use Permit (Student Housing) Approved 4/25/85 Rezoning (R-8 Residential to 1-1 Light Industrial; rescinded 12/19/83) Approved 1/10/77 Rezoning (R-D2 Residence Duplex to M-I 3 General Industrial) and Approved Conditional Use Permit (service station) 3/27/72 Rezoning (R-D1 Residence Duplex to R-M Multiple Family Residence, R- Approved S 4 Residence Suburban, and C-G 3 General Commercial) and a 5/11/70 Conditional Use Permit (74 townhomes) Approved 4/14/70 Rezoning (R-D1 Residence Duplex to R-M Multiple Family Residence, R- S 4 Residence Suburban, and M-I 3 General Industrial) Withdrawn 3. 10/24/06 Rezoning (B-2 Business to Conditional A-24 Apartment) Approved 4/7/86 Reconsideration of Conditions Denied 6/15/81 Rezonina (R-8 Residential to B-2 Business) Approved ZONING HISTORY REGENT UNIVERSITY Agenda Item 22 Page 10 e DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Please see attached list. 2. List all businesses that have a parent-subsidiary' or affiliated business entitl relationship with the applicant: (Attach list if necessary) Vanasse Hangen Brustlin, Inc. IX! Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Same as applicant 2. List all businesses that have a parent-subsidiary' or affiliated business entitl relationship with the applicant: (Attach list if necessary) Vanasse Hangen Brustlin, Inc. ~ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 1 & 2 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes _ No ~ If yes, what is the name of the official or employee and the nature of their interest? N/A Condltional Use Permit Application Page 9 of 10 Revised 7/312007 z o I I ~ U I I ~ ~ ~ F-t ~ ~ ~ CI":;j ;::::::> ~ o I I F-t I I ~ Z o u REGENT UNIVERSITY Agenda Item 22 Page 11 I I z o I I ~ U I I ~ ~ ~ f-4 ~ ~ ~ c:.I"'::I ::::> ~ o I I f-4 I I ~ Z o u III DISCLOSURE STATEMEN ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Vanasse Hangen Brustlin, Inc. - Civil Engineer 1 "Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code ~ 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code ~ 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 day prior to the scheduled public hearing according to the instructions in this package. The undersign Iso consents entry upon the subject property by employees of the Department of Planning t olograph an iew lhe sile for purposes of processing and evaluating this application. Applicant' Richard Jemiola Print Name N/A Print Name N/A Property Owner's Signature (if different than applicant) Conditional Use Permit Application Page 10 of 10 Revised 7/3/2007 REGENT UNIVERSITY Agenda Item 22 Page 12 ReDnt Board of Trustees (As of October 25. 2008) Wellington Boone William L Maynard Benjamin S. Carson Cheryl Mde8key Vemon E. an David V. MelllIl ChaunC'Je)' Crandell Lowell W. Morse Roberta Eldred G. Conoly PhIlips Jim L Funari Delle Robertson Joseph R. Gregory M.G.RoIIerl8on Roberta P. HI'OIIIa8 TImothy B. Robertson ThoIlla8 J. Knox, Jr. ThoIlla8 M. Salt8glver Kay Peng Khoo Jay A. Sekulow MIdIaeI D. UtIle Daniel C. Sellers, Jr. Howard W. long Robert o. Snelling. Sr. Revised: Monday. December 01, 2008 DISCLOSURE STATEMENT REGENT UNIVERSITY Agenda Item 22 Page 13 I I III Item #22 Regent University Conditional Use Permit 1352 &: 1354 Regent University Drive District 1 Centerville February 11, 2009 CONSENT Joseph Strange: The next application is item 22, an application of Regent University for a Conditional Use Permit for student dormitories and dining facility on property located at 1352 and 1354 Regent University Drive, District 1, Centerville with six (6) conditions. Janice Anderson: Is there a representative from the Regent University here today? Welcome sir. Please state your name. Scott Chewning: Scott Chewning with Vanasse Hangen Brustlin, Inc. We're the engineering firm representing Regent University for this Conditional Use Permit. I think there is not much really to say on behalf of the Permit. Everything is pretty much stated n the staff report, but we're here to answer any questions. We would like to state that Condition 3 that stipulates the parking and regulation of off-site parking versus on-site, we would like to request that possibly be removed. We're trying to figure out a way that we can enforce that. It would be kind of hard to do considering the boundaries of the campus with Regent and Centerville. Janice Anderson: Thank you. That comment came out during our informal. I think it was the Commission's decision that, at this time, to keep that condition in. So, that is why we placed it on the consent agenda with that condition in place. Scott Chewning: Okay. Janice Anderson: But if you want to address it with the staff between now and Council that would be fine. The Commission here would like that condition in place still. Scott Chewning: Okay. Janice Anderson: Thank you. Joseph Strange: Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Gene Crabtree to review this item. Eugene Crabtree: This application is to add two dormitories to the Regent University campus. There are existing dormitories there now, but with the increase in student population, there is a need for more. One dormitory will house just freshman and sophomore students, where they have about 480 students. The other dormitory will house 325 junior, ( seniors and graduates. And unlike, you heard on the previous one that parking was a Item #22 Regent University Page 2 ( concern, parking in this one was also a concern, and the conditions, the Commission would ask Regent University to talk with staff between now and Council to rectify the condition that requires the students in dormitory 2, which are junior, seniors and graduates to park in another parking lot somewhere else on the campus. But the condition will remain for dormitory 1, 480 beds of freshmen and sophomores will not be allowed automobiles to be parked on campus. This does conform with all of the other areas of the Comprehensive Plan. It is something that is needed by the university; so, therefore we put it on the consent agenda. Joseph Strange: Thank you very much Gene. Madame Chairman, I make a motion to approve item 22. Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. AYE 11 NAY 0 ABSO ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board approved has item 22 for consent. ( STUDIO BAMBOO CUP - A~scmbJy USl' (Vugel Sw{Jio) Relevant Information: · Lynnhaven District · The applicant requests a Conditional Use Permit for a yoga studio. · AICUZ is Less than 65. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (11-0). · Consent Agenda. · No opposition. I I III ""~~~~ ,{~~... .....+.~ ..~..;I>,.. .~, 0..1 ' , \~~ ("I ' "p' (Ui, , S \~:f,~ IiI l,G",;-w... .. .".f.i ~'::"Y';'-::~j' ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: STUDIO BAMBOO INSTITUTE OF YOGA, Conditional Use Permit, yoga studio, 2865 Lynnhaven Drive. L YNNHAVEN DISTRICT. MEETING DATE: March 24, 2009 . Background: The applicant requests a Conditional Use Permit for a yoga studio within an existing building (such studios are considered an 'assembly use' by the Zoning Ordinance). The studio proposes to use a suite within a new building recently constructed on the front portion of a commercial site located at the southwest corner of Lynnhaven Drive and Great Neck Road. . Considerations: The applicant proposes to operate three (3) studios within a 3,700 square foot unit located in an existing one-story, 11,500 square foot building. The studios will host yoga classes, yoga instructor training sessions, and occasional workshops. Two (2) restroom facilities with lockers and showers are also proposed. Yoga classes will be offered at various times throughout the day and evening each day. There is ample parking available on the site and the use is compatible with existing uses on the property and in the vicinity. There was no one present at the Planning Commission's public hearing in opposition to this request. . Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0 to approve this request with the following condition: This Use Permit is valid for the subject unit of 3,700 square feet and any future units in the commercial center on the property that the studio may expand into. . Attachments: Staff Review Disclosure Statement Planning Commission Minutes Location Map Studio Bamboo Institute of Yoga Page 2 of 2 Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager:~~ lL . ~~ I I REQUEST: Conditional Use Permit for an assembly use (yoga studio) III #2 March 11, 2009 Public Hearing APPLICANT: STUDIO BAMBOO INSTITUTE OF YOGA PROPERTY OWNER: GALE L. HIGGS STAFF PLANNER: Carolyn A. K. Smith ADDRESS I DESCRIPTION: 2865 Lynnhaven Drive (southwest corner of N. Great Neck Road and Lynnhaven Drive) GPIN: 1499389629 ELECTION DISTRICT: SITE SIZE: AICUZ: L YNNHA VEN Lot: 4.44 acres Less than 65 dB DNL Unit: 3,700 square feet SUMMARY OF REQUEST The applicant requests a Conditional Use Permit for a yoga studio within an existing building (such studios are considered an 'assembly use' by the Zoning Ordinance). The applicant proposes to operate three (3) studios within a 3,700 square foot unit located in an existing one-story, 11,500 square foot building. The studios will host yoga classes, yoga instructor training sessions, and occasional workshops. Two (2) restroom facilities with lockers and showers are also proposed. Yoga classes will be offered at various times throughout the day and evening each day. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Commerical strip center containing a restaurant, retail shops, and offices SURROUNDING LAND North: . USE AND ZONING: . South: . East: . . Lynnhaven Drive Single-family dwellings I A-18 Apartment District (PD-H2 and Shore Drive Overlays) Long Creek N. Great Neck Road Single-family dwellings I A-36 Apartment District (PD~H2 and STUDIO BAMBOO / GALE L. HIGGS Agenda Item 2 Page 1 Shore Drive Overlays} . Boat storage facility / B-2 Community Business District (Shore Drive Overlay) West: . City of Virginia Beach property . Boat storage and repair facility / B-2 Community Business District (Shore Drive Overlay) NATURAL RESOURCE AND CULTURAL FEATURES: The property is within the Chesapeake Bay watershed. The majority of the site is impervious, as it is already developed as a shopping center with mixed retail uses. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): N. Great Neck Road at this location is considered a four-lane divided major suburban arterial roadway. The MTP proposes a divided roadway with a bikeway within a 120-foot wide right-of-way. No Roadway CIP projects are currently programmed for this area. Lynnhaven Drive is considered a two-lane undivided local street. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume North Great Neck 25,000 ADT 1 32,500 ADT 1 (Level of Road Service "C") - 34,900 ADT 1 (Level of Service Existing Land Use 2 - 196 "E") ADT Proposed Land Use 3 - 122 Lynnhaven Drive No Data ADT Available Average Daily Trips 2 as defined by 4.4 acres of retail 3 as defined bv 3,700 SQuare foot fitness ooeration WATER & SEWER: This site is already connected to City water and sewer service. Recommendation: Staff recommends approval of this request with the conditions below. EVALUATION AND RECOMMENDATION Comprehensive Plan: The Comprehensive Plan designates this site as part of 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. STUDIO BAMBOO / GALE L. HIGGS Agenda Item 2 Page 2 I I III In a general sense, the established type, size, and relationship of land use, both residential and non- residential, located in and around these neighborhoods should serve as a guide when considering future development. Evaluation: Staff recommends approval of this request for the assembly use of a yoga studio at this location. There is ample parking available on the site and the use is compatible with existing uses on the property and in the vicinity. It is Staffs opinion that this use will not pose any negative impact for surrounding uses in the commercial center or surrounding properties. The proposed yoga center will be a positive addition to this site and approval is recommended with the following condition. CONDITION: 1. This Use Permit is valid for the subject unit of 3,700 square feet and any future units in the commercial center on the property that the studio may expand into. 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. STUDIO BAMBOO I GALE L. HIGGS Agenda Item 2 Page 3 AERIAL OF SITE LOCATION STUDIO BAMBOO I GALE L. HIGGS Agenda Item 2 Page 4 I I III 1:~ ~~- ~fua:>>... ......_ I ( ~, l --- ..." - !! ~-------- ~ . ~--------..;:; , .... d~- .....~...- . .....fit,....,... 801 U II -- ;---; ~" Is : ilrr ~i 1 il'! ~! :~"l, ;.~. ,_ _ _ I j ~l! .. : I I l.I.\..,.,.I...lliIU!i !'" ... .5 " " ~ ~~ IT Ilil 9. .' i I~. t' , f ~ I,' ! 1 ~ l:' ' I :11 '" .,lj,,;~ ;i '1) J l~L \';! \,',' " !~ " IJ ! ti1 t / i" ~" tf i!lf II~ .s il. .il! .'<( , , !! I' f; > \ _l...:'ltlt1~_ \ U ' " I j . ... u.,o.t .., lIlIlIlr - MARINA SHORES SHOPPES MARINA SHORES SUPPORT CENTER -.~..... SITE SURVEY STUDIO BAMBOO / GALE L. HIGGS Agenda Item 2 Page 5 PHOTOGRAPH SHOWING LOCATION OF STUDIOS STUDIO BAMBOO I GALE L. HIGGS Agenda Item 2 Page 6 I I III '_.....~-~-~......,......-- .L.. i i i i i i i i Ii ; j i t;' ;_ ~'_.. ,. ''''' '.' Vii ~.- ,v , i.~t~~~.~~: MARINA SHORES SHOPS STUDIO BAMBOO VIRGINIA BEACH, VIRGINIA PROPOSED INTERIOR LAYOUT STUDIO BAMBOO / GALE L. HIGGS Agenda Item 2 Page 7 1 02/08/00 Street Closure Granted 2 06/13/00 CUP (boat storaQe) Granted 3 03/23/99 CUP (marina) Granted 4 12/14/99 CUP (marina) Granted 5 11/01/98 Change of Zoning to B-2 to 1-2) Granted 02/21/97 CUP (marina) Granted ZONING HISTORY STUDIO BAMBOO / GALE L. HIGGS Agenda Ite'JI 2 Page 8 I I I DISCLOSURE STATEMENT II APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm. business. or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers. members. trustees, partners. etc. below: (Attach list if necessary) ^n (, t--l...El.Lh.(u-dsun hdlt. \-\)~~ 2. List all businesses that have a parent-subsidiary 1 or affiliated business entitl relationship with the applicant: (Attach list if necessary) I'D vu... o Check here if the applicant is NOT a corporation. partnership, firm. business. or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation. partnership. firm. business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners. etc. below: (Attach list if necessary) ~~ 4- s-lIddi5 ~~ Cd.~ G t1Z IE" ~ Jf?J:f - O~Q -Nle .LI 2. List all businesses that have a parent-subsidiary1 or affiliated business entitl relationship with the applicant: (Attach list if necessary) o Check here if the property owner is NOT a corporation. partnership, firm, business. or other unincorporated organization. 1 & 2 See next page for footnotes Does an official or employee of the City ~inia Beach have an interest in the subject land? Yes _ No ~ If yes, what is the name of the official or employee and the nature of their interest? ... Conditional Use Permit Application Page 7 of 8 Revised 412612007 III ~ I I r I tS 22 ~ r t ! ~ ~ ~ ~ o I I F : 52 C-~ ~ STUDIO BAMBOO I GALE L. HIGGS Agenda Item 2 Page 9 Item #2 Studio Bamboo Institute of Yoga Conditional Use Permit 2865 Lynnhaven Drive District 5 Lynnhaven March 11, 2009 CONSENT Janice Anderson: The next matters we will be addressing on the agenda today are those that are on the consent agenda. Our Vice Chair Joe Strange will be handling those matters. Joseph Strange: Thank you Madame Chairman. This afternoon we have seven items on the consent agenda. The first matter is agenda item 2. An application of Studio Bamboo Institute ofY oga for a Conditional Use Permit for a yoga studio on property located at 2865 Lynnhaven Drive, District 5, Lynnhaven with one condition. Janice Anderson: Is there a representative here? Welcome ma'am. Alyssa Embree: Hello Madame Chairwoman and members of the Planning Commission. My name is Alyssa Embree, and I'm an attorney at Troutman Sanders, and I represent the applicant, Studio Bamboo. We thank staff for their help with the application and our client has read the condition and agrees with it. Janice Anderson: Okay. Thank you. Joseph Strange: Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Dave Redmond to review this item. David Redmond: The applicant has requested a Conditional Use Permit for a yoga studio in a portion of a building being constructed on North Great Neck Road. An assembly use requires a Conditional Use Permit. This is a very common application and very non- controversial. The City staff has recommended in favor of it. The Commission visited the site. The Commission concurs by consent. Thank you. Joseph Strange: Thank you Dave. Madame Chairman, I make a motion to approve agenda item 2. Janice Anderson: A motion by Joe Strange. Do I have a second? Donald Horsley: Second. Janice Anderson: I have a second by Don Horsley. Kathy? Kathy Katsias: Madame Chairman, I have to abstain from item 2. I I I II Item #2 Studio Bamboo Institute of Yoga Page 2 Ronald Ripley: Madame Chairman, I am also going to abstain from item 2. I have a business relationship with them. Janice Anderson: Okay. Thank you. Bill Macali: Madame Chair, just for the record, Ms. Katsias if you could just state the reason for your abstention. Kathy Katsias: We have a business relationship with them. Bill Macali: Very good. Thank you. Janice Anderson: Thank you. AYE 9 NAY 0 ABS2 ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KA TSIAS LIV AS AYE REDMOND AYE RIPLEY RUSSO AYE STRANGE AYE ABS ABS Ed Weeden: By a vote of 9-0, with the abstentions so noted, the Board has approved item 2 for consent. ~ I . E ::::J (". ~ ~ ~l ~ ; ~ ~ <:> . . CERTIFICATION: I certify that the information contained herein is true and accurate. F---4 I understand that. upon receipt of notification (postcard) that the application has been scheduled for I . public hearing, I am responsible for obtaining and posting the required sign on the subject property at ~ least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. <:> a-._~.111,-,11)--- AM H. J<,(ho..-dsOh C ") Applicant's;,' n~ Print Name c; Ie- .z. ;/ f~1 Print Name 7c/ I DISCLOSURE STATEMENT I ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services. and legal services: (Attach list if necessary) J'1(~"t:X !?eYt:''')-Q,,,,,, CNT - ~J71(1t 'T..t::rJ'V ~ S ./f1l.C If+/7:T 7T - D c-7..r;r -1.J (3/1 LI- /I/fN~ t'hro A:) P1 ,;f7J E. - Ar::!~ '0/ T/l.<fl..tTA1..pJ !' ~If) t!-'i J - ~ to} -f L. " 1 .Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act. Va. Code ~ 2.2-3101. 2 "Affiliated business entity relationship. means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities.. See State and Local Government Conflict of Interests Act, Va. Code ~ 2.2-3101. e (if different than applicant) ~ Conditional Use Permit Application Page 8 of 8 Revised ~126I2007 STUDIO BAMBOO I GALE L. HIGGS Agenda Item 2 Page 10 JULIE COLEMAN CUP - Assembly Use Relevant Information: · Princess Anne District . The applicant requests a Conditional Use Permit to allow a yoga studio within a retail center. · The applicant intends to have up to 40 participants. As this is considered an "assembly use", a Use Permit is required. · AICUZ is 70-75 and APZ 2. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (11-0). · Consent agenda · There was no opposition. I I I II ~~"" &f'.'~""'~~~ fl.'. . WI d- - m '\~:.:: ;Iil 'i':~~.~-.'I' ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: JULIE COLEMAN - ZEN HOT YOGA, Conditional Use Permit, yoga studio, 3352 Princess Anne Road, Suite 901. PRINCESS ANNE DISTRICT. MEETING DATE: March 24, 2009 . Background: The applicant requests a Conditional Use Permit to allow a yoga studio within a retail center. The 2,400 square foot (SF) studio will be located on the end of a strip of retail shops. The retail center is located on a site zoned Conditional B-2 Community Business District, and is commonly known as Landstown Commons. The applicant is currently operating a yoga studio at this location; however, since the business license states only ten (10) people may occupy the yoga room, a Use Permit is not required. Since the applicant now desires to increase the number of participants beyond ten (10), the Zoning Administrator determined that a Use Permit for an assembly use is required. . Considerations: The studio will have a reception area with limited display area, full bathroom facilities with showers and changing area, laundry area, and an 880 SF yoga studio room. Yoga traditionally needs 21 SF of space per person. The yoga room will allow space for 40 people comfortably at one time. Classes will be offered seven (7) days a week. The hours of the studio vary daily. Most classes begin at 6:30 a.m. and end by 8:45 p.m. The applicant anticipates employing six (6) staff. The applicant's request to conduct yoga classes is of such low intensity that no negative impacts are anticipated. Given also that no building modifications are proposed to the commercial center or its parking area, no land use compatibility issues are anticipated. . Recommendations: " The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 11-0 to approve this request with the following condition: Julie Coleman - Zen Hot Yoga Page 2 of 2 1. All necessary permits and a Certificate of Occupancy for this use shall be obtained from the Department of Planning I Permits and Inspections Division before occupancy and use of the building for a yoga studio. . 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: ~ 'K .~(I'<Jt. I I REQUEST: Conditional Use Permit (assembly use - yoga studio) III #12 February 11, 2009 Public Hearing APPLICANT: JULIE COLEMAN- ZEN HOT YOGA PROPERTY OWNER: MOUNTAIN VENTURES STAFF PLANNER: Karen Prochilo ADDRESS I DESCRIPTION: Property located at 3352 Princess Anne Road GPIN: 1485919394 ELECTION DISTRICT: PRINCESS ANNE SITE SIZE: Total Site: 12,000 Lease Size: 2400 SF AICUZ: 70 - 75 dB DNL APZ2 SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow a yoga studio within a retail center. The 2,400 square foot (SF) studio will be located on the end of a strip of retail shops. The studio will have a reception area with limited display area, full bathroom facilities with showers and changing area, laundry area, and an 880 SF yoga studio room. Yoga traditionally needs 21 SF of space per person. The applicant is currently operating a yoga studio at this location; however, since the business license states only ten (10) people may occupy the yoga room, a Use Permit is not required. When the number of participants exceeds ten (10), a Use Permit is required. The yoga room will allow space for 40 people comfortably at one time. The intention of the studio is to have up to 40 participants practicing yoga at one time; therefore, the applicant is requesting this Use Permit. Classes will be offered seven (7) days a week. The hours of the studio vary daily. Most classes begin at 6:30 a.m. and end by 8:45 p.m. The applicant anticipates employing six (6) staff. JULIE COLEMAN - ZEN HOT YOGA / MOUNTAIN VENTURES Agenda Item 12 Page 1 LAND USE AND ZONING INFORMATION EXISTING lAND USE: Retail center SURROUNDING lAND USE AND ZONING: North: South: East: · Retail shops / Conditional B-2 Community Business District . Retail shops / Conditional B-2 Community Business District . Delivery and rear drive aisle for shopping center . Stormwater Management Pond . Single-family residential / PD-H2 (R-5D) Residential . Parking lot . Retail/Conditional B-2 Community Business District West: NATURAL RESOURCE AND CULTURAL FEATURES: The majority of this site is developed as a retail center with parking. Three are no natural resources or cultural features associated with this site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM ICIP) I TRAFFIC: Traffic Engineering does not have any comments on this application. The trip generation for this type of a facility is less than the typical shopping center use; moreover, the traffic has been accounted for in the Landstown Commons Shopping Center Traffic Impact Study. WATER and SEWER: This site connects to City water and City sanitary sewer. FIRE: No Fire Department comments at this time. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the condition below. Comprehensive Plan: It is stated in the Comprehensive Plan that this area is suitable for low intensity retail and service uses that are compatible with the adjacent residential neighborhood. Examples of such uses include garden centers and nurseries, neighborhood medical offices and specialty shops providing goods and services to the neighborhood market (p 85). This proposal is in conformance with the Comprehensive Plan's recommendations for this area. Evaluation: JULIE COLEMAN - ZEN HOT YOGA / MOUNTAIN VENTURES Agenda Item 12 Page 2 I I III The applicant's request to lease one of the existing strip commercial center's suites as an office space, to conduct yoga classes, is of such low intensity that no negative impacts are anticipated. Given also that no building modifications are proposed to the commercial center or its parking area, no land use compatibility issues are anticipated. Staff recommends approval of the request for an assembly use for a yoga studio at this location. CONDITION 1. All necessary permits and a Certificate of Occupancy for this use shall be obtained from the Department of Planning / Permits and Inspections Division before occupancy and use of the building for a yoga studio. 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. JULIE COLEMAN - ZEN HOT YOGA / MOUNTAIN VENTURES Agenda Item 12 Page 3 AERIAL OF SITE LOCATION JULIE COLEMAN - ZEN HOT YOGA / MOUNTAIN VENTURES Agenda Item 12 Page 4 ~ ~ \ .~ ~ \ \; \" ~ \ \\\\\\ J t~i\ l11A;.i \ J '1 \ \ \ i 1\ ~ PROPOSEO S\1E PL~tI JULIE COLEt-AAN - ZEN 1-\01 'IOGAI MOUN1 A:~~;~~ pag PHOTOGRAPH OF STUDIO LOCATION JULIE COLEMAN - ZEN HOT YOGA I MOUNTAIN VENTURES Agenda Item 12 Page 6 I I III CUP - Assembly Use 1 09/30/08 Conditional Use Permit (church) Withdrawn 2 08/22/06 Conditional Rezonina AG-1 to B-2 Granted 3 02/24/98 Conditional Use Permit (communications tower) Granted 4 09/26/83 Conditional Rezoning AG-1 to R-8 (conditions met 11/05/87) Conditional Rezoning R-8 to PD-H2 (conditions met 11/05/87) Granted ZONING HISTORY JULIE COLEMAN - ZEN HOT YOGA I MOUNTAIN VENTURES Agenda Item 12 Page 7 ... '-"l ." I DISCLOSURE STATEMENT f APPLICANT DISCLOSURE tf the applicant 1& a corporation, partnership, rum, business, ur other unincorporated organization, complete the following: 1. List the applicant name foHowed by the names of all offiCIna. members,trustees, partners, etc. belOw: (Atbtch list it nfH:eusry) Zen Hot Voga Ownerlll- julie Coleman & Michavllilller 2. List all businesses that I'l8ve 8 parent-subsidiary' or affllieted business entitr relationship with the applicant (Attach list if necessary) N/A ~ Check here if the applicant is NOT a corporation. pertnenhlp, firm. busIness. or other unincorporllted organization. PROPERlY OWNER DISCLOSURE Complete this section only if property owner ;s different from appliesnt. It the property owner Is a corporation, partnership. firm, busille", or other unlncorporeted organl%ation, complete the fOllowing: 1. list the property owner name followed by the names of all officers, members, trustees, partne/'8, etc. below: (Attach I;st " necessary) MOUNTAIN VENTURES VIRGINIA BEACH LLC SOLE ~R - TGC VIRGINIA lEACH ASSOC~TU lP 2. List all businesses that have a parent-subsidlery' or amUllted business entl~ relatlotlship with the applicant: (Attech lIst If necessary) IIlIA [] Check here if the property owner is NOT a corporation, partnership, ftrm, business, or other unincorporated organization. , & 2 Se. neAt PIIU4t for foolN:lt.. Does an offICial or employee of the City of Vlrglnl. Beach he'/e 8n Interest In the subject land? V.. No X If yes, what is the name of the official or employee end the n:3ture ot their interest? ~ UH Pemlll Aprtllcalioft ~ht '0 ~ 1/3/Z007 ~ I I ! I I [ t .. I ~ III I Dls~i..OSURE STATEMENT I ADDITIONAL DISClOSIJRES List all known contractors or businesses 1hat have or will provide services with respect to the requested property use, Including but not HmltEd to the providers of architectural servIces, real estate services, financial services. aCC<Iunting 5ervices, end legal services: (Attach list if necessary) Architect- Rachel Comenclc 703-868-0928 General Contrador. Andy Pittman. f;'recislon Wall & arid 757-; 1500325 Bank of \he Corntnonweelth- Jeremy Chuml'lill 757-636.76Ui 1 -Parent.o$Ubsidiary relalioMhip" means "a relstier ship that exIstS when one c:orporation direcUy or Indirectly owns ehares possessing rl'lOAt then 50 p.rcent of the voting pow.r of another corporation." See State and Local Government Contllet of Interests Act. Va. Code ~ 22-3101, 2 -Affiliated bUSIness entity relationship. means ". lelatlonshlp, other than parent. subsidiary relationship. th~ exists when Q) one bllSiness Entity has a controHing owne,..hip interest in the other business entity, (Ii) . controlling ownel in one entlty Is also a controlling owner In the other entity. or (ill) th.... Is shared manageme.nt or control between the business entities. Factora that ahould be considered il'l determining the existence of en affilleted busln... entity relationship Include that tile same person (lr substantially the ..me person own or mane~ the two entltlK; there are common or corr mingled funds or Iluts: the business entities share the use of the same off'1C:8S or employees or otherwise share activities. re80urces or pllrSonnel on iI regular basis; or there Is othe'Wise a close wortting relationship between the entities' 5.. State and Local Gov.rnmc;lOt C'mfllct of lnUlreS1s Act, Va. Code! 2.2-3101. CERTIFICATION: I certify that the in'ormation contained ha..ln 15 true and accurate. I und.rstand Ihat. upon "'~Ipt or nl:Jlifteetion (pcl8tcal'd) that the Ippliclalion hu been 8Cheduled for publk: heMing. I am responsible fo, oblaining and posting 1he rBlluired Sign on the S\A)}ect propertY III '.est 30 days prior to the ~cluled pUbUC heering according 10 . he In8lructions In lhis package. The uhdersigne~ ,50 consents to entry upon the subJect property by empIOyeN of the Department of Planning to J)hotograpn and view the $1I1t for purpoau of pMCes.;ing and evakJatltlg tNs epplicetion. ~:>!aZt-fr1Q// / cant's Sign. tv... MOUIITAIN VENTURES VIRGINIA 8!ACH llC By: Goodman Propet\i... In~. II, Mln~ :pe~~21~han applicant) Julie L. Coleman Print Nama LIW~ ^ Silll.IIr' VIca P'esident PrlnlName CllIIdllIoNlUM "."".. _iealIOn Pega 10 or 10 Rev.'" 7/ItZOO1 JULIE COLEMAN - ZEN HOT YOGA / MOUNTAIN VENTURES Agenda Item 12 Page 9 Item #12 Julie Coleman - Zen Hot Yoga ( Conditional Use Permit 3352 Princess Anne Road District 7 Princess Anne February 11,2009 CONSENT Joseph Strange: The next item is item 12, an application of Julie Coleman, Zen Hot Yoga for a Conditional Use Permit for a yoga studio on property located 3352 Princess Anne Road, Suite 901, District 7, Princess Anne with one condition. Julie Coleman: Good afternoon. I'm Julie Coleman, Zen Hot Yoga and I'm in agreement with the condition. Joseph Strange: Okay. Thank you very much. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Phil Russo to review this item. ( Philip Russo: Thank you Mr. Strange. This is an application for a Conditional Use Permit for a yoga studio within a retail center. It's a 2,400 square foot studio that will be located on the end of strip of retail shops. The applicant is currently operating the studio at this location; however, the business license only allows for ten (10) people to occupy the yoga room at one time. The applicant anticipates the number of participants will exceed ten and anticipates up to 40 people. The facility will house 40 people comfortably at one time. Planning has reviewed the application and has found no substantial traffic impacts and no negative impacts from any other facet, and they recommend approval at this time. Joseph Strange: Thank you Phil. Madame Chairman, I make a motion to approve item 12. Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. AYE 11 NAY 0 ABSO ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KA TSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ( Ed Weeden: By a vote of 11-0, the Board has approved item 12 for consent. - 32- Item V-K. PLANNING ITEM #56933 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE MOTION Items 2.3,4,5, 7 (DEFERRED), 8 (DEFERRED), 9 and II of the Planning By Consent Agenda. Item K. 7 (RAPPHANNOCK SPORTS, L.L.C.) was DEFERRED INDEFINITELY, BY CONSENT) Ite4m K.8 (CINGULAR WIRELESS) was DEFERRED, BY CONSENT, forty-fIVe (45) days to November 27,2007.) 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 Council Lady Henley voted a VERBAL NAY on Item K2. (CH&B ASSOCIATES, L.LP) Council Lady McClanan voted a VERBAL NAY on Item Kll (KOTARlDES DEVELOPERS) October 9, 2007 I I III -47 - Item V-K.11. PLANNING ITEM #56944 Upon motion by Vice Mayor Jones. seconded by Councilman Dyer, City Council ORDINANCE UPON APPliCATION OF KOTARIDES DEVELOPERS FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM B- 2 COMMUNITY BUSINESS DISTRICT TO CONDITIONAL A-24 APARTMENT DISTRICT ZOl 0071287 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA Ordinance upon application of Kotarides Developers for a ChanIle of ZoninIl 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. The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Ninth of October Two Thousand Seven Voting: 10-1 (By Consent) Council Members Voting Aye: Wi//iam R "Bill" DeSteph, Harry E. Diezel, Robert M Dyer. Barbara M Henley, Vice Mayor Louis R Jones, . Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Vi//anueva, Rosemary Wi/son and James L. Wood Council Members Voting Nay: Reba S. McClanan Council Members Absent: None October 9, 2007 DANIEL J. BLEVINS ~ , ' 4 Relevant Information: · Centerville District · Applicant has three requests: · Rezone an area acquired from the adjacent shopping center to allow construction of an apartment building. · Rezone a strip of land conveyed to the shopping center to the same B-2 zoning as the shopping center. · Modify the proffered plan for the apartments to allow covered garages and an increase of 12 dwelling units. · AICUZ is Less than 65. 'I! Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (11-0). · Consent Agenda. · No opposition. I I III .r;.~~'''JA~~.~,. [/''''. . ~~ (BE ' i' ,~i) n- i~~ '1.',_"'-.' ~!'1 .". IF.... ~..:~.~...;*J' ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: DANIEL J. BLEVINS, Modification of Conditions, approved by City Council on October 9,2007,920 South Military Highway. AICUZ is less than 65. CENTERVILLE DISTRICT. MEETING DATE: March 24, 2009 . Background: The Conditional Rezoning from B-2 Community Business District to Conditional A-24 Apartment District was approved by the City Council on October 9,2007. The applicant desires to modify Proffer 1 of that rezoning for the purpose of allowing the density of the proposed multifamily development to be 19 units to the acre instead of the 18.5 units per acre. The increased density will allow an increase of 12 units over the originally submitted 300 units. . Considerations: On November 25, 2008, the applicant recorded a subdivision plat that reconfigured the subject site. That plat conveyed 0.188 acres of land I situated at 920 S. Military Highway, to the adjacent northern property, known as Burlington Plaza Shopping Center. The area that the applicant conveyed to the owner of the shopping center is located to the north of the applicant's site and serves as a means of ingress and egress to the shopping center via Military Highway. The owner of the shopping center in turn conveyed to the applicant 0.218 acres of land. This land swap provides each parcel developable land in a more usable configuration. As a result of the swap, the applicant modified the originally proffered plan by removing a 12-unit building from the southwestern comer of the site and adding a 24-unit building on the recently acquired land at the northern side of the site. Thus, the applicant also requests a modification of Proffer 5 to allow these modifications to the site plan. The main difference between the building being removed and the proposed building is that the new building will have 12 more units than what was originally approved for the site. Additionally, 43 parking spaces have been added within four (4), one-story garage units located at the southwest comer of site. The proposed garages are in keeping with the approved building materials and colors. Daniel Blevins / Modification of Conditions Page 2 of 2 The requested modification of the proffers is in conformance with the Comprehensive Plan's recommendations for this 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 increase in density from 18.5 units per acre to 19.0 units per acre (300 units to 312 units) as arranged on the site is minimal and ensures continued compatibility of the development to the surrounding area. There was no one present at the Planning Commission's public hearing in opposition to the request. . Recommendations: The Planning Commission placed this item on the Consent Agenda, passing 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~ k. , 28~ I , I II #9 February 11, 2009 Public Hearing APPLICANT: DANIEL BLEVINS PROPERTY OWNER: 1652,LLC STAFF PLANNER: Leslie Bonilla REQUEST: Modification of Conditional Chanae of ZoninQ approved by the City Council on October 9, 2007 ADDRESS I DESCRIPTION: 920 S. Military Highway GPIN: 1456230790 ELECTION DISTRICT: SITE SIZE: CENTERVILLE 17.016 acres AICUZ: Less than 65 dB DNL SUMMARY OF REQUEST The Conditional Rezoning from B-2 Community Business District to Conditional A-24 Apartment District was approved by the City Council on October 9, 2007. The Conditional Rezoning has 15 proffers, which are provided on the following page. The applicant desires to modify Proffer 1 to allow 19 units to the acre instead of the 18.5 units per acre as was approved by City Council. The result is an increase of 12 units over the original maximum of 300 units. On November 25, 2008, the applicant recorded a subdivision plat that reconfigured the subject site. The applicant, therefore, also requests a modification of Proffer 5 to ensure the original proffers covers the entirety of the newly shaped lot. This modification will also allow the removal of a 12-unit building from the southwestern corner of site and the addition of a 24-unit building on the recently acquired land at the northern side of the site. The design and material of the newly proposed building would be in keeping with what is currently approved on-site. The main difference between the building being removed and the proposed building is that the new building will have 12 more units than what was originally approved for the site. DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 1 The aforementioned plat, recorded on November 25, 2008, conveyed 0.188 acres of land, situated at 920 S. Military Highway, to the adjacent northern property, known as Burlington Plaza Shopping Center. The area that the applicant conveyed to the owner of the shopping center is located to the north of the applicant's site and serves as a means of ingress/egress to the shopping center via Military Highway. The owner of the shopping center in turn conveyed to the applicant 0.218 acres of land. This land swap provides each parcel developable land in a more usable configuration. Additionally, 43 parking spaces have been added within four (4), one-story garage units located at the southwest corner of site to help accommodate parking for the newly proposed building. The proposed garages are in keeping with the approved building materials and colors. The October 9, 2007 proffers are provided below: 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. 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 being composed of DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 2 I I III 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. 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 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 owne.d and maintained by the owner. DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 3 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 (I) the Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions 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. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Multi-family dwellings are currently under construction SURROUNDING LAND North: . USE AND ZONING: South: . . East: . West: . . NATURAL RESOURCE AND CULTURAL FEATURES: Retail and financial establishments / B-2 Community Business District Old Providence Road Across Old Providence Road are multi-family dwellings / A-12 and A-18 Apartment Districts Single-family dwellings / R-10 Residential District Vacant gas station, proposed motor vehicle safes / B-2 Community Business District Single-room occupancy facility i A-12 Apartment District There is a wooded area on the eastern portion of the site located within the Chesapeake Bay Preservation Area. The proposed modifications do DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 4 I I III not alter development within the Chesapeake Bay Preservation Area. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Military Highway 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 CIP projects are identified for this area. Providence Road 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 CIP projects are identified for this area. Old Providence Road is a two-lane undivided local street. No roadway CIP projects are identified for this area. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Military Highway 26,813 AOT 1 55,500 AOT 1 (Level Existing Land Use;.!- of Service "0") / 1,758 AOT capacity Providence Road 17,281 AOT' 32,700 AOT ' (Level Proposed Land Use a - of Service "0") / 1,828 AOT caoacitv Old Providence NO EXISTING TRAFFIC COUNTS Road AVAILABLE 1 Average Daily Trips 2 as defined by 300 apartments 3as defined by 312 aDartments WATER: This site must connect to City water. There is an 8-inch City water main on Old Providence Road. There is an existing 10-inch City water main which reduces to a 6-inch City water main along South Military Highway. SEWER: This site must connect to City sanitary sewer. There is an existing 12-inch City sanitary sewer force main along South Military Highway. DANIEL BLEVINS / 1652, LLC Agenda Item 9 Page 5 Recommendation: Staff recommends approval of this request with the submitted proffers. The proffers are provided below. EVALUATION AND RECOMMENDATION 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. The land use planning policies and principles for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value and aesthetic quality of the stable neighborhoods located in this area. In a general sense, the established type, size, and relationship of land use, both 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 this 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 (Le. education, religion, recreation, health, etc.). Evaluation: The requested modification of the proffers is in conformance with the Comprehensive Plan's recommendations for this 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 increase in density from 18.5 units per acre to 19.0 units per acre (300 units to 312 units) as arranged on the site is minimal and ensures continued compatibility of the development to the surrounding area. The modified plan incorporates indoor car garages along with the existing amenities on-site, which include a tot lot, walking path, swimming pool, picnic shelters, gazebos, open space, and clubhouse with an exercise facility and kitchen. The proposed garages will consist of similar materials and colors as the apartment buildings on-site. Streetscape landscaping is provided to ensure the garages are screened from view of the street. In sum, the proposed change is density is acceptable, and the site design provides additional on-site amenities while not creating a negative impact to the overall community. Staff, however, recommends the removal of Proffer 13, Proffer 14, and Proffer 15 because these Proffers are redundant as they are conditions that are required by City codes or are stated in other places within the amended and restated Proffer Agreement. Proffer 2 is also recommended to be deleted as a subdivision plat as referred to in this Proffer has been recorded in the Clerk's office at the Circuit Court. DANIEL BLEVINS / 1652, llC Agenda Item 9 Page 6 I I III 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,. (~1 07(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 19 apartment units per acre for a total number of apartments not to exceed 312 units. The maximum height of the buildings shall not exceed forty-five (45) feet. PROFFER 2: 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 3: 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 November 13, 2008, prepared by Massey Design & Associates (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 1652 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 4: 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 5: 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 DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 7 by 1652 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 6: 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 7: 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 8: 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. PROFFER 9: 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 10: 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. DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 8 I I I II PROFFER 11: 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 12: This Amended and Restated Proffer Agreement supersedes all other Proffer Agreements submitted to the 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 provide staff the flexibility to ensure reasonable traffic, storm water, 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 December 11, 2008, 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. 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"" : : PLAN APPRO.BY CITY '~" "- : COUNCIL IN 200 : ' "- "'.. ~ / / PROPOSED SITE PLAN DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 12 - ! ::: .; ::: :: ~ .. - - ~ ~ f ~ ... ... :: , ! ; ; ~ ~Q:~ ;~ ~~,:~~:..::: g;:~:iliil~ 7'::'-:;~~-~' "~:::,J:,,,;, ::6i~:;lji ::~!=%=~5~' , ,"'1 _ *'--'Z; - - ::~:iZ~~ :::::--: _ :f _ ....,,... t:".. ....... .....;:.F-.....!:--::~- '7 x ... ~ ~;; ~: Ii" H ! j; .. ",Cl ~ ~l ~ it t ;) ~: ~ g. ~ :;... ~ ~~ S ~~ l t~ k ~* 4,'''' ~~ ". ,; " :.. :; ::: ~ --: J ~ ti.. "i Q e5~ ~~ ~ ...... Sg i ~u g ~~ i~l~ ~I -"" .... ~ u ~ ~ . Ii i"" j! :5 ,~ :.. " ::: ..; I' x :e , ... .. I II ~ .. ~ ~ $' .. ! t Ii ~ .. llJ .. - ~H , -. i~ ~~ I~ ; s . ~ z j:::v " e '" " ~~ ~ ,;~ ~~ ..::& ~ !~~; it., 5'" ~i,' . ? 5: j~ ..lit ::lfi; 'r *<tr . ~..~ ~c ~~"..,:: ;j ~ .. ,. ; .. ~a~ f;i ~~Ul : ;;l ",f . i "'f~i .. Hi "fl .. ! ~U "'8".... t .. ,.. ~ ~....ii ._~.. i i: ~ '" ~~: ~i~" """fi~ I ~ to'" I !ii~; II; ~~! f"'''' ~!~; ~ : r~i .. 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T. , ; "" tf , ' , ; ! t . . 4 . _1.-,. q. . . ~~ ~~ 9~ ~~ ~~ ,~ ;.~ ,~. ::: .~ ; :: .:.. 'i. ,.: :: 2 ~~ :: :;" i ~:2 = :~ ~v~~ :.:E:.::;:~; ~ ,.....~ ......"L." E.c;;_:;,~ ,,;. 1... t...,...... "'" c: )-~/;;-~ ~ -.. '*"" --......... ...-, ffJrJ) ~o:; QLJJ ~~ ~O <r.:~ ~LJJ O~ ~O PROPOSED BUILDING ELEVATION DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 14 I I III ..;..... <;, ~"~.' C""" ~~ ~~ eq \3; ~ U)r.J'l ~.o:: OUJ 0- ~o Q:C, <L;j ~> OUJ ~o CITY COUNCIL APPROVED BUILDING ELEVATION DANIEL BLEVINS /1652, .LLC Agenda ItelTI 9 Page 15 '" '" 'r -;. 'r """" \&'H t""...... ^' "> ~ .. L - '.,. ..- , ,,;: : ! ~ , " ~/,~~,~ -+ ~",.: Y'..,~""'~~~y ,w ,. '~,_.::.. ;f ,~~~ ^ ;p' 'It.. .....'__ 'M_--' ~:., ,.-' ,,(., ,~ "~.~". '" '.. KOT ARIDES DEVELOPERS 1"r<'Pdn !-! b\': I{ f.r\' i l ',rt:. rot il' h: Pnrtcr~.i~, lr fx ~i/!' I...'C'''';~J.r 'Befmont at Providence l! 11 ..'alnJt \c:k A,. . ('hc"di,<oah. \'..\ .':':' ,:c' J:ni!;:~t.\<, .:f...Y~ PROPOSED .GARAGE ELEVATION DANIEL BLEVINS / 1652, LLC Agenda Item 9 Page 16 I I III # DATE DESCRIPTION ACTION 1 10109/07 Zoning Change (B-2 to Conditional A-24) Granted 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 Conditional Use Permit (church) Granted 5 11-26-96 Conditional Use Permit (automobile auction) Granted 6 11-14-06 Conditional Use Permit (motor vehicle sales) Granted ZONING HISTORY DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 17 z <=> I I ~ c~ I I I , ~I ea c:I:) z c:=~ I I E-4 I I Q Z c:=~ c ~ r-r I <=> Z c:-=~ I I Id c ~ I I r-r I I I Q <=> ::s DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Daniel Blevins -".~~"~~-"-~~"---"---"--"---"-_."---"---"---"-u,.---..---..---..--..-.--.--..---..r-.........._ 2. List all businesses that have a parent-subsidiari or affiliated business entity2 relationship with the applicant: (Attach list if necessary) _......______.__.____._._~~::_.~~_~.~.~.=~~____J.df.:L..._ o Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. . If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) SeA- A-t1k clr. ",.A 2. List all businesses that have a parent-subsidiary1 or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ~ ~#~c W o Check here if the property owner is NOT a corporation. partnership, firm, business, or other unincorporated organization. 1 & 2 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes _ No L- If yes, what is the name of the official or employee and the nature of their interest? Modification of Condiltons Application Pagel0of11 Revised 7/3/07 DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 18 I I II DISCLOSURE STATEMENT II ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) -< _ _ ~ ABA(',~ 1 "Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Contlict of Interests Act. Va. Code ~ 2.2-3101. . 2 "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling ow ner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities. resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code ~ 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. Ap~9. ~ VA..I,.._I ~LDh'_\/1N.j Print Name ~l f)c f tT IZ \< \)Tf) (? I Print Name Modification 01 Conditions Application Page 11 of 11 Revised 7/312007 I II z o I . ~ C~ I I I 1 ,.-.. ~ ~ Z c:=~ I I F--4 I I ~ c~~ r: ~ r"T' I c: ~ z c: ~ I I ~ ~'3 I I r "T' I S c=~ ~ DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 19 Owner Disc\osur~' I. 1M2 I.I.C members and managers \1anagers and \1emhcrs: Ale" Pete Kotarides and n. Pele Kotarides Members: Pele Alex Kotarides. Pete 0. KOl;lrides. Petro KOlandes. Basil KOlarid~', 2. At1ilialed Bu,iness Entities Kotarides Builders I.LC Kotarides Dewlopers LLC KPM LLC 5110 I UT Corinth lIomes 1.1.<' Arcadia LLC AAA of Nllrfillk Inc 5555 Associates Oyster Point Residel1lial LIT KOlarides Builders Developer Inc. 352 Commercial LI.C 7341.1' 152 LlC 252 LLC 352 LLC 452 L LC 552 l.LC 1152 I LC 752 LLC S52 LLC 952 LlC 10521.1.C 1152LLC 1252 LlC 1452 LI.C 1552 LlC 1652 LlC 1752 lLC I X52 LI.C 1952 LLC 2052 LlC Additional Disclosures Kroskin Design WPI. Kautman and Canolcs McPhillips. Roherts and Dean. CPA Aquarius Engineering Lawyer's Title Insurance Leading Edge Realty & Century 21 ~achman Wolfe Environmental Kirnley Ilorn Massey Design Associates Bay Environmental Saunders Fence Company Vico ConstructIOn Company David Smith Soilcx GET Solutions Verizon Cox Cable Virginia Dominion Power Siska Aurand POr!erlield Design Center Pro Enginl'Cring Cunningham :hsociates Aquatic Resource \1anagemenl. Inc. DISCLOSURE STATEMENT DANIEL BLEVINS /1652, LLC Agenda Item 9 Page 20 I I III Item #9 Daniel J. Blevins Modification of Conditions 920 South Military Highway District 1 Centerville February 11, 2009 CONSENT Joseph Strange: The next item is agenda item 9, an application of Daniel J. Blevins for a Modification of Conditions approved by City Council on October 9,2007 on property 920 South Military Highway, District 1, Centerville with eleven (11) proffers. Shepelle Watkins-White: Good afternoon Madame Chair and Vice Chair. I'm Shepelle Watkins-White with Kaufman and Canoles. My business address is 524 Johnstown Road in the City of Chesapeake. Weare in agreement with the conditions imposed and agree to in regards to item 9. I'm also here on item 10. I don't know if you want me to stay up here for that one as well. Certainly, we are in agreement with those matters as well. Joseph Strange: Okay. Stand aside a second. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Dave Redmond to review this item. David Redmond: Thank you Mr. Strange. The Conditional Rezoning from B-2 Community Business District to Conditional A-24 Apartment District was approved by the City Council on October 9, 2007. The Conditional Rezoning has 15 proffers which are provided in your packet. The applicant desires to modify Proffer 1 to allow 19 units to the acre instead of the 18.5 units per acre as was originally approved by City Council. The result is an increase of 12 units over the original maximum of300. On November 25,2008, the applicant recorded a subdivision plat that reconfigured the subject site. The applicant, therefore, also requests a modification of Proffer 5 to ensure the original proffers covers the entirety of the newly shaped lot. This modification will also allow the removal of a six (6) unit building from the southwestern corner of the site and the addition of an 18-unit building on the recently acquired land at the northern side of the site. Additionally, 43 parking spaces have been added within four, one-story garage units located at the southwest comer of the site to help accommodate parking for the newly proposed building. The proposed garages are in keeping the approved building materials and colors. The staff felt that the increase in density from 18.5 units per acre to 19 units per as arranged on the site is minimal and ensures continual compatibility of the development to the surrounding area. This morning there was some discussion in the informal that we would like to see the buildings and garages raise the level of quality but that is for the staff and Council in between now and Council. Staff is satisfied with the proffers at present. The Commission is as well and concurs with their judgment by consent. Joseph Strange: Thank you Dave. Madame Chairman, I make a motion to approve item 9. ( Item #9 Daniel 1. Blevins Page 2 ( Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. AYE 11 NAY 0 ABSO ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved item 9 for consent. ( ( I I I II -- CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7338 DATE: March 13, 2009 FROM: Mark D. Stiles".! ~~ B. Kay Wilson~ DEPT: City Attorney TO: DEPT: City Attorney RE: Conditional Zoning Application; Daniel Blevins, 1652, LLC - Modification of Conditions The above-referenced conditional zoning application is scheduled to be heard by the City Council on March 24, 2009. I have reviewed the subject proffer agreement, dated December 11, 2008 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen / 1652, LLC, a Virginia limited liability company To CITY OF VIRGINIA BEACH a Municipal Corporation of the Commonwealth of Virginia THIS AMENDED AND REST A TED PROFFER AGREEMENT ("Agreement") made this 11th day of December, 2008, by 1652. LLC, a Virginia limited liability company (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. 1652, LLC ("1652") is the owner of a certain parcel of property located in the City of Virginia Beach, herein known as Exhibit A (the "Property"). Kotarides Developers, LLC, 1652's predecessor in title, and others entered into a Proffer Agreement dated August 28, 2007, which was approved by the City Council and duly recorded as Instrument Number 20071016001401130 in the Clerk's Office for the Circuit Court for the City of Virginia Beach on October 16, 2007. B. Grantor has acquired a parcel of property (the "Additional Parcel") by deed dated November 3, 2008 from Indian River Shopping Center, LLC. Said deed was duly recorded as Instrument Number 20081203001377500 in the Clerk's Office for the Circuit Court for the City of Virginia Beach on December 3,2008. PREPARED BY: ANN K. CRENSHAW, A TTORNEY AT LAW, KAUFMAN & CANOLES, P.C. GPIN NO. 1456-23-0790 and 1456-23-4515 I I III C. 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 Additional Parcel from B-2 to Conditional A-24 Apartments to conform with the existing zoning on the Property. 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"). D. 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. E. 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. F. 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. G. 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 2 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 ~md 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 19 apartment units per acre for a total number of apartments not to exceed 312 units. The maximum height of the buildings shall not exceed forty-five (45) feet. 2. 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. 3 I I III 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. 3. 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 November 13,2008, prepared by Massey Design & Associates (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 1652 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. 4. 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 4 materials for the dwelling units will include brick veneer on the lower level, picket railings on the balconies, and horizontal lapped siding. 5. 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 1652 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. 6. 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. 7. 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 5 I I I II 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. 8. 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. 9. The community signs 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 signs shall be externally lighted and constructed primarily of brick. The landscaping surrounding the community signs shall be substantially similar to that set forth in the Site Plan. 6 10. 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. 11. 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. 12. This Amended and Restated Proffer Agreement supersedes all other Proffer Agreements submitted to the Grantee. The Grantor acknowledges that 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. The Grantor acknowledges that 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. 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 I I III 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: 1652, LLC, a Virginia limited liability company By:Mr erA& ~ &1 ~ '7 Its: Manager COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, Lt!UYCf M. I}'she, , the undersigned, a Notary Public in and for the City and State aforesaid, do hereby certify that IJ kx- Ie fe.lJf4,...~~whose name is signed to the foregoing instrument as Manager of 1652, LLC, a Virginia limited liability company, has sworn to, subscribed, and acknowledged the same before me in the City and Commonwealth aforesaid this 23 day of 3aJf-utlJ ' r668' on behalf of said limited liability company. ~'ZtJd'l;1'r- 711 ' /J~ .. / _ .. ~ .~ ~t Public My commission expires: !,- / J f /Lc>( I Registration No.: 332- qiP I . ::ODMA\PCDOCS\DOCSVB\8249509\18 9 I I III 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 known, numbered and designated as "PARCEL A-3-2-2A, 17.012 ACRES", as shown on that certain plat entitled "RESUBDIVISION OF PROPERTY KNOWN AS PARCEL A-3-2-2 AS SHOWN ON SUBDIVISION OF PROPERTY KNOWN AS PARCEL A-3-2 INSTRUMENT #20080103000013390 AND PARCEL A-3-1 AS SHOWN ON SUBDIVISION OF PARCEL A- 3, SUBDIVISION PLAT OF PROPERTY OF DANIEL HERRON AND LINDA HERRON AND A PORTION OF PROPERTY OF WEBB REALTY COMPANY, INC. INSTRUMENT #20060531000823760 AND CLOSED PORTION OF OLD PROVIDENCE ROAD AS SHOWN ON PLAT SHOWING STREET CLOSURE & EXCESS R/W ON PROVIDENCE ROAD BY CITY OF VIRGINIA BEACH, VIRGINIA MAP BOOK 114, PAGE 54A", dated June 5, 2008, made by WPL, 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 =, Page =. IT BEING PART of the same property conveyed to 1652, LLC by deed from Ping Ping, LLC, a Virginia limited liability company, dated February 1, 2008, recorded as Instrument No. 20080205000134130; and AND BEING PART of the same property conveyed to 1652, LLC by deed exchange with Indian River Shopping Center Land Company, LLC, dated November 3,2008, recorded as Instrument No. 20081203001377500. 10 DANIEL~. BLEVINS Relevant Information: · Centerville District · Applicant has three requests: · Rezone an area acquired from the adjacent shopping center to allow construction of an apartment building. · Rezone a strip of land conveyed to the shopping center to the same B-2 zoning as the shopping center. · Modify the proffered plan for the apartments to allow covered garages and an increase of 12 dwelling units. · AICUZ is Less than 65. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (11-0). · Consent Agenda. · No opposition. I I III ~~& ~~~~'''-.' '...~~~, q;l. -. ".'!ii (u ~ h: d~ :. ,\ ,;-- Ii) ~..'::--~l/ ~~.... CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: DANIEL J. BLEVINS, Chanae of Zonina District Classification, A-24 Apartment District to B-2 Community Business District, 920 South Military Highway. CENTERVILLE DISTRICT. MEETING DATE: March 24, 2009 . Background: The applicant proposes to rezone the site, currently zoned Conditional A-24 Apartment District, to B-2 Community Business District for the purpose of combining the property with the adjoining property, which is already zoned B-2 Community Business. The area to be rezoned is a portion of a commercial site anchored by a Burlington Coat Factory store. . Considerations: A Conditional Rezoning from B-2 Community Business District to Conditional A- 24 Apartment District was approved by the City Council on October 9,2007. That rezoning allows the development a multifamily residential development on the site. On November 25, 2008, as part of the development process for the proposed development, a subdivision plat was recorded conveying the northern portion of Parcel A-3-2-2, located at 920 South Military Highway (recently approved multi-family residential to south), to Parcel A-3-1 located at 880 South Military Highway (shopping center). The referenced subdivision plat is contained in the attached staff report. The newly created Parcel A-3-1A, located at 880 S. Military Highway, now consists of land that is zoned B-2 and Conditional A-24. The purpose of this request is to rezone 0.188 acres of land situated within the newly created Parcel A-3-1A from Conditional A-24 to B-2, which will eliminate the split zoning that currently exists on Parcel A-3':'1A. The proposed rezoning eliminates the sliver of zoning that exists on Parcel A-3- 1 A. This sliver exists only due to the fact that it was part of the site to the south at the time the site was rezoned for a multi-family residential development. Rezoning this sliver, which is used as a drive aisle for the shopping center, will provide consistent zoning across the site of the shopping center. There was no one present at the Planning Commission's public hearing in opposition to this request. Daniel Blevins / Change of Zoning Page 2 of 2 . Recommendations: The Planning Commission placed this request on the Consent Agenda, passing 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 CityManage~ k . ~~ I I I II #10 February 11, 2009 Public Hearing APPLICANT: DANIEL BLEVINS PROPERTY OWNER: INDIAN RIVER LAND COMPANY, LLC STAFF PLANNER: Leslie Bonilla REQUEST: Chanae of Zonino (Conditional A-24 Apartment District to B-2 Community Business District) ADDRESS I DESCRIPTION: 880 S. Military Highway GPIN: Portion of 1456240389 ELECTION DISTRICT: SITE SIZE: CENTERVILLE 8167.7 square feet AICUZ: Less than 65 dB DNL SUMMARY OF REQUEST The applicant proposes to rezone the site, currently zoned Conditional A-24 Apartment District, to B-2 Community Business District for the purpose of combining the property with the adjoining property, which is already zoned B-2 Community Business. On November 25, 2008, a subdivision plat was recorded conveying the northern portion of Parcel A-3-2- 2, located at 920 South Military Highway (recently approved multi-family residential to south), to Parcel A- 3-1 located at 880 South Military Highway (shopping center). The newly created Parcel A-3-1A, located at 880 S. Military Highway, now consists of land that is zoned B-2 and Conditional A-24. The purpose of this request is to rezone 0.188 acres of land situated within the newly created Parcel A-3-1 A from Conditional A-24 to B-2 which will eliminate the split zoning that currently exists on Parcel A-3-1A. The piece of land proposed to be rezoned is used as a drive aisle for the shopping center located on the same parcel. DANIEL BLEVINS I INDIAN RIVER LAND Agenda Item 10 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Retail establishment with associated parking SURROUNDING LAND USE AND ZONING: North: · Retail and financial establishments I B-2 Community Business District · Multi-family dwellings are being constructed I A-24 Apartment Districts · Single-family dwellings I R-10 Residential District · Automotive sales and offices I B-2 Community Business District South: East: West: NATURAL RESOURCE AND CULTURAL FEATURES: There are no known significant natural resources or cultural features associated with this site. The site is fully developed. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN lMTP) I CAPITAL IMPROVEMENT PROGRAM lCIP): Military Highway 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 CIP projects are identified for this area. Providence Road 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 CIP projects are identified for this area. Old Providence Road is a two-lane undivided local street. No roadway CIP projects are identified for this area. TRAFFIC: The area being rezoned is used for a drive aisle to the shopping center and a subdivision plat has been recorded integrating the site into the shopping center. No traffic is generated as a result of this rezoning. Recommendation: Staff recommends approval of this request with the submitted proffers. The proffers are provided below. EVALUATION AND RECOMMENDATION DANIEL BLEVINS I INDIAN RIVER LAND Agenda Item 10 Page 2 Evaluation: Staff recommends approval of this request. The proposed rezoning eliminates the sliver of zoning that exists on Parcel A-3-1A. This sliver exists only due to the fact that it was part of the site to the south at the time the site was rezoned for a multi-family residential development. Rezoning this sliver, which is used as a drive aisle for the shopping center, will provide consistent zoning across the site of the shopping center. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. DANIEL BLEVINS I INDIAN RIVER LAND Agenda Item 10 Page 3 . ~.,\ 'j AERIAL OF SITE LOCATION DANIEL BLEVINS / INDIAN RIVER LAND Agenda Item 10 Page 4 I I I II /' 1> 'v.? ~.liGFI'S,:,/'[ :~';;',C EA.SE~!E-fy i C~~' ;"r'4;[' :::/~~" ((' V PC; '\).4 B[A:,:M, /' ....^~ /'q::;;,'\!A r-\ ..~. 2:: "~6\")~; 3'~" )8:'J,7([~ Pt.jj,"'f'"j c 45J;",V[,\r' T'Hz s.rHR'C;, \eA E~E.." Tt?""" ,4 PQWrF (;OMPANY -_.... '''':,.i''' i,.,J' \i,?;:'~~~''''' ('iED If I'{.JB ]34, ^"'. 44.2, E!{ J5~ D r r..:' 6 ! ~.J8' rRAr;-~c 3lCi\,A~ .r.-?A,;nc,\? tfi,SE!JElv"7 f'~5 3)18 "., .?4j PAl?CE~ A: v>>e} - 2 -- ;: Q/v=/!:.-VE{) r/"i!)JAl>r RIV/;-P , r ,,/, '" j t 67,7 S:: r:~ C/:; ') 1.t?P PARCCL A-3-2-1 N/F PING PING, LL C. (CPtN' f4S6- !4-{if68) (iNST NO 20080f0300001JJ90. (INsr NO C:PQPEPT>.:' ~ qiE ~EPt~B'r ..lA:;A rEf: PARCEL A-3-1A Cl:)d",' :45f~24 ["CD 5 SF C,p ! 2, ?J2 ACRES/ N/F PARCEL A -3- J INDIAN RIVER SHOPPING CENTER LAND COMPANY. LL C (GPfN' 1456-24-0J94) (555.926.4 SF OR 12.762 ACRES) (INsr NO 200605J100082J760. PLAT) (DOC NO, 2005011Joo075(0) P'N - - -- \l~~-.... ~fl::JA::P~PO=X:"Tr , r,r4T,,)," /Or S 60'11'38' W~ c;' 'c';';':~";'~'I' '"f~';"~;;:Z;:~' 1S,29' -' ",...,;,,,,$,-," v' >''-'' >"'>'( Y THE C~HESjj.PEA."KE Alv[) oOt:!VAC "E~E/>j;-iO;,\[ CQiVPAliY' " ,* ':;.56 -24 " ,)38':';',.,; ....v: 1889 P c-,. -- III ",...t.fH 0,., . j'" _ "l' ..." "~,/'1 .1'f>.... I! , f /t p.'/" -;'}' ,~~ t., ~V4>, ,."l...,;( t: /". ~/ .... ;\,t\ tt 'M It WtTOlAlID )r .. 1.", z.;~ :::66 \ /1_ //" t?8 ..,J'/ " ' :to ."tl ,.<{O. a."''' $\I"~" ........ ~..... PARCEL A-3-1A PIN t,2'",72 :; s.r t,p ! ry :: J {; A!.,~RE5/ IvYF A-,J-2-2 1652, ae (GPIN 1456-13-9559) (742.54 t:5 SF o.R 17046 ACRES) (INS r NO 20080 t O,JOOOO 1.J.J90, PLA T) (DOC NO. 20080205000134 .rJ0) REZONING PLAT DANIEL BLEVINS I INDIAN RIVER LAND Agenda Item 10 Page 5 # DATE DESCRIPTION ACTION 1 10-09-07 Zoning Change (B-2 to Conditional A-24) Granted 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 (oolf drivino ranoe, mini-Qolf, & Qame 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 Conditional Use Permit (church) Granted 5 11-26-96 Conditional Use Permit (automobile auction) Granted 6 11-14-06 Conditional Use Permit (motor vehicle sales) Granted ZONING HISTORY DANIEL BLEVINS / INDIAN RIVER LAND Agenda Item 10 Page 6 tJ!+ II DISCLOSURE STATEMENT " II APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. list the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Daniel Blevins 2. List all businesses that have a parent-subsidiary 1 or affiliated business entitl relationship with the applicant: (Attach list if necessary) a9- Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. list the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Indian River land Co. Earle W. Kazis, Managing Member 2. list all businesses that have a parent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ".I ~ ....;......< /" It-- o Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 1 & 2 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes _ No ./ If yes, what is the name of the official or employee and the nature of their interest? Rezoning Application Page 9 of 10 Revised 11/11/2006 z o I-If ~ U I-If ~ ~ ~ ~ Z I-If Z o N DANIEL BLEVINS I INDIAN RIVER LAND Agenda Item 10 Page 7 z o ....., ! ~I <I u ~ ri 4 ~ ~ ~ '-' Z t--t Z, Oi N '(_._~ ~.. __.____.._ ____ ..........___......".___. _~___..lo_..__...__ ___..__ _.....,1 :L. n_ DISCLOSURE STATEMEN! II ~..._., ._......._u_.._.__......nn.___......._.. .... ... ___.._ ._.~, ..n..... ....~~..~ . . ....m .m.... ... . . ...._.... .....................-.1 I AoomONAL mSCLOSURES i List all known Gon:racto~s 01 bus'ne$$es tha~ lit'l'Je or Wlil plc\I;dc s.(;'~Jlce3 wl!h f~Sp0;::l t' to the requester! property use, Inck:dm~ but GO.. hnl;!!:jd tv the f./io'Jlde:'$ of ar(;hjte~~urQ1 ! services, real estat€;> ~erv',~es, f'r)Q,,:.:~j::>.1 S€N:ces accounti:--:!1 f,er...k~r, a(ld !e\~ai : sa!ViC:~$' (Ati~(;h J!sllf necessalyj .'~ /' t'": ; . "P~r9nt.Si.lbsidi:ilrJ. relati:'m5h:p" me;)n~ "3 relat;~~:;;hip ~.h;;~ exists wh'3"l one ~or;:x>raii(.lr: dir~ctiy O( irjc!~er.~ly {W;r!!l; si1<l~e3 :)o~;;es:=';l1g rr:"fl" :~,;:sn ':oD perce~j \:>1 ~he v~i:'\g p:,\Wer I)~ :.:I"<J~h€:~ CO'p"r:;lt:o,..,' S~ S~i.~~u tJnd ~OC:,l G:')'/o1)~~:-n<?r:: C(lnt!~ct {1f ;ntete.';ts .~::::. '/~ Cede S 2.2.3~01 i "Affljlt\led ~uSi!'l~sS e<'llltv r~iaticI')Dhin' ~ea":! 'a f~:mlcn5M:p Qti1~f t!':::;n p<lre"t- su~sidier)' m~21tion5h!? 1!)~t e.>lisls 'NtiST' li'j ~~ b~li:ii~eS8 on:i!,. ~a~ a ;~Q;:trf;i1:;;g O,'liliHZ,hip ,,..te-rEist :'1 ~~ ~h"'t l)~:::;.n~&$ el:lity, (Ii:; a <.[J0.\1'0i1ITlg Q'NPW in 'Y.'~ ~rltii'i :f, ~iso :0 CN~~:i)l:ing ow~e~' i~1 ~"v~e. ~~tiiy. I)' ',Pi:, ~here is .::h!:tred m3n~gel1;E-!".t m ccn~r"i h~......een ~h{' IN$:neSlj enttt:&s fac!or$lh~t ;;hou:d o~ ';0r-si,-i;;n~.:i :r, ::tf:~p.~m!m~g the fJ)U:;!Of:e+-: of i':lll afiihl-ltej btlSlness ~nt\ty rolation~t'1i;') ::~clud~ th~llhe sgft,e :,)e:~on co $'JbstD:.,!1al!y the S3:'T'e pnrsor; QWf'. or manage the ~o ef'~rties tnar~ s~e C<.}I'n'~lOl': 01 cOl'fJmll"g:Gc iur:C!l or ~~.s<:::t~, t~e blJs:r:-8SS entitias 5nate the Wile of \h;.: sa(:')e O(f!<:SI; cr l'lmploy~~s or cthe1""'w>~ share a,:t:Yiti\:$, f&SOl.Jri:,eS Of p~~<>nr:e; ot; ~ j.e~;IJ:ar b?s,~; O~ there is (.\tl"le:wis~' :7 c!OSp. wor"il~9 rel.~lIonsh;p bmwool" t~a ~nti!jt'~ '. S~?l: Sti:\\i\ <i",rj Loc;.l: (.;o"ern"ii:<~; Conf!jf,t ~f lnt~,;r*~~s ~,:;~, \f;:l Code ~ 2.2-3101. CERTJflCA TION: ! :;~.-:J~ :1-:<:11 I~d ,';fU;;;'c,LV', C,Y:ci,{ t)J :.i~.ri-):r:;$ t~i,'" <l~~,! ~:'"I.r.>.k i ~~nd~rS':3nj :hnt. UP(W' :"c~~\r,;t of !1~~:t:c:a~.v~ {r=--.:'1::;h:;.:..r,.ji ~hCl~ ~h~ :;;)pj;caT (:11 :1,=,~' b~~~I.. SI."!":o(4~~~:~4Pt" ~Cli v:Jr.iic tl~P.r:.:~<.J. i <:'1m rellpc'1s:tle for otm'l:r.:'q <!M ;:>C\~~:n.~ [~~ :"';tl~I~'J 8:g1' o:~ !h~ ~;.ki-.;-c' ~rr:.;)(,~y .1:1 l\,::ast 30 <1a)'~ p!"i~r t{~ th~ :;....;t'\:eoL.:~d out-he hl~aflllq 7\cr~"'~~i~g ~) ~~~e '!'I~:r:jC~IC'~~ '1!1 ~tl:~ p.:~t:k.~g~ r~"~ '~nd!'f51g~'ec ~,S\: corl=Jer:ts :0 ~ntry '..If:.io;-,,; :"'i-J~ s'J~;u~..:t :';iOf:('rt:" Pi (~P'P:"''''€~'.:. (,~ ~he t)~-f,.a(~ma~~~ ~r Plani'tr.~ ~c chotogra;:>h and "'/~e:'li ;r~ ~~t;;- tcr J:..)!":j<,:'~,~~ j; p:'<...'"'t~$~H~tJ 3J~~ ~","~:~~llng :1):; (fr~P:F:'S~:O:1 I I ". . .-. "'. Ajt~\.~_:~;3_.~~~ ~~ ~, .~:.~:.~~.:~ -~;. .~.~. ...- !:I;;r~ N~~e ...&d!t"'-L= ((!:,..A~;Y~t:~ P,if'! N~n":s ...-.. ~ .....,.,.....--..-. ..... -......-..__. -.....-.......-.-..........,..---.... ~.' ..;..........,. .'. ..... :~~r ~\i'...; ;",::,':',\":~i~01 Od~'! ~f <;1" 'v !"(.l,,':':t'OoJ ::~,..'~ DANIEL BLEVINS / INDIAN RIVER LAND Agenda Item 10 Page 8 Item # 10 Daniel J. Blevins Change of Zoning District Classification 920 South Military Highway District 1 Centerville February 11, 2009 CONSENT Joseph Strange: The next item is item 10, an application of Daniel J. Blevins for a Change of Zoning District Classification from A-24 Apartment District to B-2 Community Business District on property located at 920 South Military Highway, District 1, Centerville. Shepelle Watkins-White: Again, Shepelle Watkins-White, 524 Johnstown Road, Chesapeake, and we are in agreement with the conditions. Joseph Strange: Thank you very much. I could have read them both at the same time. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Dave Redmond to review this item. David Redmond: The applicant proposes to rezone the site, currently zoned Conditional A- 24 Apartment District, to B-2 Community Business District for the purpose of combining the property with the adjoining property, which is already zoned B-2 Community Business. On November 25,2008, a subdivision plat was recorded conveying the northern portion of Parcel A-3-2-2, located at 920 South Military Highway to Parcel A-3-11ocated at 880 South Military Highway. The newly created parcel located at 880 South Military Highway now consists ofland that is zoned B-2 and Conditional A-24. The purpose of this request is to rezone 0.188 acres ofland situated within the newly created Parcel A-3-1A from Conditional A-24 to B-2 which will eliminate the a split zoning that currently exists on Parcel A-3-1A. The piece of land proposed to be rezoned is used as a drive aisle for the shopping center located on the same parcel. This proposed rezoning eliminates the sliver of zoning that exists on Parcel A-3-1A. Staff recommends approval of the application and the Commission concurs by consent. Thank you. Joseph Strange: Thank you Dave. Madame Chairman, I make a motion to approve item 10. Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. AYE 11 NAY 0 ABSO ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE Item #10 Daniel J. Blevins Page 2 KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved item 10 for consent. \- FLORI DAYS M@F7 Man Not to -Scele c~ 1\ q:aIIJ ...J I ..- , r:::!I r , n-. I~ c::::J '-'1DJr -. ~ rn........ 1 c::::J "'I~' or r..._, ...... ' I:c..- " LI _ 1lJ' t'"' "-' I"" ~ Ci~~. S::~ t:t:i= I ~~ ./ ~ j=;$ ) I- ~ _~._/ a, \5',' ~""'~G (<" ? IO~O "'~ ~ l- e b ~ /'xIDeJ ~04A i)VI 2 ~ o. ~[!J ~~G-,Tr:- n- ~ Florida/vs. LLC -= . I" " r iU ~ ..-. l.J l '11l I 'l'J ~ TI ~..~ M ..... III n -- 5~fap~ ~ ~ ~ ~ OCDO 0 ~ -~ ~ ~ 0 I, CJJlcrlii~ ~erag R-7.5 I .L 1~ ;- t r~ o )~~I(~? ~6 ~ =I~ ~ ) -n l ~970Z" r EaJ' L ul~ ~ClT ~ = g Q:~ B1l~llnr~ r=;= IT . 1--. I II ~ Conditional7.onil7g Change from R-7.5 to Condo ,4-24 Relevant Information: · Lynnhaven District · The applicant proposes to rezone the existing R-7.5 property to Conditional A-24 Apartment District in order to construct a 16-unit, townhome-style community on 1.54 acres at a density of 10.38 units to the acre. · The proffered building elevation drawings depict three-story units each with a single-car garage. · AICUZ is Less than 65. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (11-0). · Consent Agenda. · No opposition. d~~..,., .(~~~;1;..-...,.t..~, ~/.. ': \\\ (vi . . \~~ ~'.t . ' i-) "\,.:" 'i.) ~":"'" ~lj ~~~." CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: FLORIDAYS, L.L.C., Chanae of Zonina District Classification R-7.5 Resdential District to Conditional A-24 Apartment District. 4303 Bonney Road . L YNNHAVEN DISTRICT. MEETING DATE: March 24, 2009 . Background: The applicant proposes to rezone the site, zoned R-7.5 Residential, to Conditional A-24 Apartment District for the purpose of constructing a 16-unit, town home-style community. . Considerations: The applicant's proposal for 16 units on this 1.54-acre parcel results in a density of 10.38 units to the acre. The request for the A-24 District rather than the A-12 District is due to the proposed maximum lot coverage of 60 percent, as the A -12 District only allows up to 40 percent lot coverage. The dwellings are proposed as townhome-style, but ownership of the units will be condominium form. The Zoning Ordinance, therefore, views the proposed units as multi-family dwellings rather than fee-simple townhouses. The proffered building elevation drawings depict three-story units each with a single-car garage. The elevation drawings depict exterior building materials of vinyl with brick foundation skirts and asphalt shingle roofs. Since the location of the site is not directly opposite the Thalia Road intersection with Bonney Road to the north, the number of trips generated by any increase above the by-right zoning could contribute to an unsafe situation. If and when the almost two (2) acre parcel to the east is redeveloped, that site would be required to align its entrance directly across from Thalia Road to create a 4- legged intersection. However, the applicant's site is located so close to Thalia Road that the eastern parcel could not physically place their entrance across from Thalia Road. As a means to remedy this potentially unsafe situation, at least in the long term, the applicant has proffered coordination for a future ingress/egress with the property to the east so that a "final" entrance into the community would align with the right-ot-way across Bonney Road. The proffer requires the establishment of an escrow account to hold funds for the future reconfiguration ot the entrance. In addition, the proposed layout of the units and Floridays, L. L. C. Page 2 of 2 drive aisles sets up an opportunity for connectivity to the parcel to the east if and when that site is redeveloped. There was no one present at the Planning Commission's public hearing in opposition to this item. . Recommendations: The Planning Commission placed this item on the Consent Agenda, passing 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 CityManag~ ~~~ #26 February 11, 2009 Public Hearing APPLICANT I PROPERTY OWNER: FLORIDA YS, LLC STAFF PLANNER: Carolyn A. K. Smith REQUEST: Conditional ChanQe of Zoning (R-7.5 Residential District to Conditional A-24 Apartment District) ADDRESS I DESCRIPTION: 4303 Bonney Road GPIN: 14778299490000 ELECTION DISTRICT: L YNNHA VEN SITE SIZE: 1 .54 acres AICUZ: Less than 65 dB DNt SUMMARY OF REQUEST The applicant proposes to rezone the existing R-7.5 property to Conditional A-24 Apartment District in order to construct a 16-unit, townhome-style community on 1.54 acres at a density of 10.38 units to the acre. The request for the A-24 District rather than the A-18 District is due to the proposed maximum lot coverage of 60 percent. as the A -18 District allows up to 40 percent lot coverage. While the dwellings are proposed as town home-style, ownership of the units is to be as condominiums. The proffered building elevation drawings depict three-story units each with a single-car garage. The elevation depicts exterior building materials of vinyl with brick foundation skirts and asphalt shingle roofs. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Single-family dwelling SURROUNDING LAND North: · Bonney Road FLORIDA YS, LLC Agenda Item 26 Page 1 USE AND ZONING: South: East: West: . Single-family dwellings, duplex I R-5D Residential District . Single-family dwellings I R-7.5 Residential District . Single-family dwellings I R-7.5 Residential District . Single-family dwellings I R-7.5 Residential District NATURAL RESOURCE AND CULTURAL FEATURES: The site is within the Chesapeake Bay watershed. There are some significant, old growth trees on the site that will not be preserved and will be removed to accommodate the proposed structures. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Bonney Road is considered a four-lane undivided minor urban arterial. The MTP proposes an undivided roadway within a 70- foot wide right-of-way. The Pembroke Area Comprehensive Transportation Plan (CIP 2-238) is currently underway and involves a transportation study for the Central Business I Bonney Road District surrounding Town Center. This study will develop short-term, mid-term, and long-term alternatives for transportation needs in the area. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Bonney Road 17,200 ADT 1 25,100 ADT 1 (Level of Existing Land Use'" - 1 0 Service "e") ADT Existing Zoning 3 - 54 ADT Proposed Land Use 4 - 94 ADT , Average Daily Trips 2 as defined by one single-family dwelling 3 as defined by five single-family dwellings 4as defined bv 16 townhomes WATER: This site is already connected to City water. The existing meter must be upgraded to accommodate the proposed development. There is an existing eight (8) -inch City water line along Bonney Road. SEWER: This site is currently connected to City sanitary sewer. Analysis of Pump Station # 264 and the sanitary sewer collection system is required to ensure future flows can be accommodated. There is an existing 12-inch City gravity sanitary sewer main along Bonney Road. FIRE: The 18 foot section of roadway at the end of the street as shown is part of the required emergency vehicle turn-around. It is required to be marked as a fire lane along with some other areas. The final determination of all fire lanes will occur during the DSC final site plan review process. SCHOOLS: School Current Enrollment Capacity Generation 1 Change 2 FLORIDA YS, l-LC Agenda Item 26 Page 2 Thalia Elementary 636 680 2 1 Independence Middle 1324 165 1 0 Princess Anne High 1814 1611 1 0 "generation" represents the number of students that the development will add to the school 2 "change" represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be positive (additional students) or neaative (fewer students). Recommendation: Staff recommends approval of this request. EVALUATION AND RECOMMENDATION Comprehensive Plan: The Comprehensive Plan Map designates this area as a Primary Residential Area. The land use planning policies and principles for the Primary Residential Area focus strongly on preserving and protecting the overall character, economic value, and aesthetic quality of the stable neighborhoods located in this area. The established type, size, and relationship of land use, both residential and non-residential, in and around these neighborhoods should serve as a guide when considering future development. Evaluation: Since the original submission of this application, the applicant has worked closely with City Staff in an effort to meet all of the suggestions, requests, and requirements of the City while also attempting to retain their desire to have 20 dwelling units on the site. The revised plan now depicts a reduction of four (4) units for a total of 16 proposed townhouses. Staff understands that developing long narrow parcels like this is difficult, and as a result, Staff has consistently recommended to potential developers of this site or the adjacent site to the east that if a higher density residential project is to be successful at this location, the two sites should be combined. The Comprehensive Plan stresses the consolidation of parcels to provide sites of a large enough size and of adequate shape and configuration to result in projects of the highest quality. The situation presented by this rezoning request demonstrates why this recommendation of the Plan is so vital to the creation of a high quality of life for the residents of such communities. Particularly, when an applicant proposes to increase density, the site layout and quality become highly important. Staff suggested to the applicant that the adjacent parcel be sought. Unfortunately, the owner of that property is not currently willing to sell. The Comprehensive Plan's policies recognize that the Bonney Road corridor offers many opportunities for redevelopment and increased density, but this is so only when done in a well-sited, well-organized manner. This corridor comprises a mixture of moderate-to-high density residential and nonresidential land uses. Based on development trends along Bonney Road and multi family districts in the vicinity, Staff recognizes that it is not unreasonable to consider rezoning this parcel to a density allowing multifamily units; however, this site poses a challenge for good site design at the density the applicant is requesting. As the location of the site is not directly opposite the Thalia Road intersection with Bonney Road to the north, the number of trips generated by any increase above the by-right zoning could contribute to an unsafe situation. If and when the almost two (2) acre parcel to the east is redeveloped, that site would be required to align its entrance directly across from Thalia Road to create a 4-legged intersection. However, the applicant's site is located so close to Thalia Road that the eastern parcel could not physically place their entrance across from Thalia Road. As a means to remedy this potentially unsafe situation, at least FLORIDA YS, LLC Agenda Item 26 Page 3 in the long term, the applicant has proffered coordination for a future ingress/egress with the property to the east so that a "final" entrance into the community would align with the right-of-way across Bonney Road. The proffer requires the establishment of an escrow account to hold funds for the future reconfiguration of the entrance. In addition, the proposed layout of the units and drive aisles sets up an opportunity for connectivity to the parcel to the east if and when that site is redeveloped. At the request of Staff, the layout now contains nine (9) guest parking spaces, an increase of two (2) spaces from the previous plan and an increase of five (5) from the original plan. This is significant as there is no space for any other guest parking nor is there any off-site parking in the vicinity for this site. Visitors parking on one of the streets perpendicular to Bonney Road, such as on Fir or Thalia Roads, and then crossing Bonney Road on foot could be a dangerous proposition. The applicant has striven to respond to Staff's suggestions and to Code requirements. Setting up future access to the site to the east, providing a means for a future coordinated ingress/egress from Bonney Road, and reducing the number of units down to 16 led Staff to the conclusion that this layout, at this time and under the circumstances, is the most reasonable for this property without the benefit of utilizing the parcel to the east. 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," (9107(h)(1)). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When the Property is developed, it shall be as a residential condominium, substantially in accordance with the .CONCEPTUAL SITE LAYOUT BONNEY PLACE 4303 BONNEY ROAD VIRGINIA BEACH, VA", dated 04/29/08, prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the .Concept Plan"). PROFFER 2: When the Property is developed, vehicular Ingress and Egress to the Property shall be limited to one (1) entrance from Bonney Road as depicted on the Concept Plan. Should the parcel which adjoins the eastern boundary of the Property be rezoned and/or subdivided, access to Bonney Road shall be shared and shall be shifted to the east to align with Thalia Road. A cross access and shared maintenance easement shall be granted in favor of the adjoining parcel to the east, along the shared property line prior to Site Plan approval, in order to facilitate future shared access. Grantor shall, prior to issuance of the first occupancy permit for a condominium unit in Bonney Place, deposit the sum of $3,000 in a reserve for replacement account with the Condominium Association to fund the Association's future removal, re-grading and seeding of the portion of the drive aisle which will be eliminated when the access is combined with the adjoining parcel to the east and realigned. PROFFER 3: FLORIDA YS, LLC Agenda Item 26 Page 4 The total number of dwelling units permitted to be constructed on the Property shall not exceed sixteen (16). Each dwelling unit shall contain a minimum of 1,400 square feet of living area, and a one (1) car garage. PROFFER 4: The architectural design and exterior building materials of the residential buildings will be substantially as depicted on the Concept Plan. PROFFER 5: Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City Agencies and departments to meet all applicable City Code requirements. STAFF COMMENTS: The proffers listed above are acceptable as they limit the property to a development that is in substantial conformance to a site layout, building design, and density. The City Attorney's Office has reviewed the proffer agreement dated April 28, 2008, 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. FLORIDA YS, LLC Agenda Item 26 Page 5 AERIAL OF SITE LOCATION FLQRIDA YS.I..LC Agenda Item 26 Page 6 I I , flYl".} vi.... 'ljI! rrYl".1 fH BIOolt.ETENnON AREAS w <[ GUEST PAR (9 Sl"ACUI Q( ...-"""" L- ~.....;;;;,--~ '\/ I QT'" \"', 1) , lANOSCAPr - 8UflO!:R NO CURB AND ClJTTf:R TO THtS ?OiNT LANOSCAJ>Ec ~ eUffER 8' 8t:IGE VINYL PttJVACY fENCE ' BIQ.RETt:N'flON ! AREA } ,',' ..,""" 1_~__1:~CY r--- WRN MfA I ,I /' I _...---' r-~ 8' 9ElGt VlNYt.- PttlV,...cY fINCE ,LANDSCAPE 8UfHR t-'-- I II 15' CROSS ACCESS i' lfASeMf..NT TO Bf: ESTABU5HED TO Sa&I: AOJACENT PttOPERTY T() THE EAST $' BElGE VINn PRIVACY FENCl to' X 6' PArlO (TYP.) sr,"'-MPfD DRIVEWAYS (TYP.1 PROPOSED SITE PLAN FLORIDAYS,LLC Agenda Item, 26 Pa~e 7 Bonney Place 4303 Bonney Road Virginia Beach, VA / ~'$h~ (Typ,) ~VlrtyI~ Hm;llPl.mlil Sidln& €ttv>l Ylnyj. Sidln& (fyp,) eo....eepwal Elevadon B Conceptual Rear Elevation Conceptual Side Elevation ekwatfom ~ by: t.and PlaMlttg Solutfom, Svl'folk. VA Vl'!l1 PrivaCY.~~~~~I:?~~il I ~ I I j I I I I ~ '<( I I ! l~ i 1 I I I PROPOSED BUILDING ELEVATIONS FLQRIDA YS,lLC Agenda Item 26 Page 8 I I Moo A,!~r t!-lc81e ~I ] I .., I ;;;;J II<!! I II Floridavs. LLC r. 1 '-I 1 'I ~ r=J ~ I . ~l-T I II I I c::::J ['''''1 ill~ II.- r""WI c:::::J '-'!UJp ...-. C!!:J I r'lI '-' ~ c:::::J , ~~ .... n__, IJ:J I~- ,1-1 .- I U' ..., w.~ ~ L,~ Pi",1 ILU",/ '\.:J \Y' .~ TTr.:: _ ~~l I 1 I ./ ../'T j~ ~ J v- \-- V~../ ~q. ~,~ ~~ ~n~~ ~ [~ ~J~~'" : ~ t} b ~OD~ ~ O~ fJ~i Gl. V OA~~ 1 2 3 4 5 6 ( 02/26/08 08/28/99 03/10/98 04/29/97 OS/23/83 08/27/84 01/15/87 03/03/86 04/16/84 r;= II r'l; II ..... - ~ ~~ -n ~J~ L:~ ~ :- BONNBY ~~~~ [j']f~ <Q 0 0 -:: ~ 0 ) I I ~ l..d-,~ - 011 0 I~ O.t r . ft1 tIkJ It .,. ,IVI"O ~ R-tS [1L l~f; (:cR- o ~~ ') I~I I ~ ~6 : V/-il _ U r .I~ · \ -0 ( ...---/ L0 I~'? I \ l:/C! :02e:. I 438J L- r ~ ClIf - I \:;.. ~.: IL~~"~ 1nffr ~ Conditional7.oning Change from R-7.5 to Com!. A-24 CUP home occupation Change of Zoning (R-7.5 Residential to Conditional 0-1 Office) Change of Zoning (Conditional 0-1 Office to Conditional A-36 Apartment) Conditional Use Permit (Housing for the Elderl CUP nursin home ex ansion Change of Zoning(R-6 Residential to 0-1 Office) Change of Zoning (R-6 Residential to A-2 Apartment) Change of Zoning (R-6 Residential to 0-1 Office) CUP Fraternal Order of Police Lod e Change of Zoning (R-6 Residential to 0-1 Office Change of Zoning (R-6 Residential to 0-1 Office Granted Granted Granted Denied Withdrawn Denied Denied Withdrawn ZONING HISTORY FLORIDA YB, LLC Agenda Item 26 Page 9 . .. DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Floridays, LLC: Guy B. Liskey. Sole Member 2. list all businesses that have a parent-subsidiary 1 or affiliated business entity2 relationship with the applicant: (Attach list if necessary) o Check here if the applicant is NOT a corporation, partnership, firm, business. or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if properly owner is different from applicant. If the property owner is a corporation, partnership. firm, business, or other unincorporated organization, complete the following: 1. list the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2. List all businesses that have a parent-subsidiary 1 or affiliated business entit}l relationship with the applicant: (Attach list if necessary) o Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 1 & 2 See next page for footnotes Conditional Rezoning Application Page 11 of 12 Revised 9/1/2004 z o I I ~ U ~ ~ ~ c;..:, Z I I Z o N ga ~ o I I E--4 I I ~ Z o u FLORIDA YS, LLC Agenda Item 26 , Page 10 z o I I ~ U I I ~ r:Lt ~ t.:) Z I I Z o N ~ ~ o I I f-I I I c:::l Z o u I II "*"1'" II DISCLOSURE STATEMENT ~ ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Sykes, Bourdon, Ahern & Levy, P.C. MSA, P.C. 1 "Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act. Va. Code ~ 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent-subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities. resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act. Va. Code ~ 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. Fk>r~a~: ~ ~~ By: ........., Applicant's Signature Guy B. Liskey, Sole Member Print Name Property Owner's Signature (if different than applicant) Print Name Conditional Rezoning Application Page 12 of 12 Revilled 9/112004 FLORIDA YS,lLC Agenda Item 26 Page 11 Item #26 Floridays, L.L.c. Change of Zoning District Classification 4303 Bonney Road District 5 Lynnhaven February 11, 2009 CONSENT Joseph Strange: The next item is item 26, an application ofFloridays, L.L.C. for a Change of Zoning District Classification from R-7.5 Residential District to Conditional A-24 Apartment District on property located 4303 Bonney Road with five (5) proffers. Eddie Bourdon: Thank you Mr. Strange: Madame Chair, again for the record, I'm Eddie Bourdon, a Virginia Beach attorney representing the applicant who is in the chambers this afternoon. I want to thank the Commission for placing this matter on the consent agenda with the proffers that are before you. I specifically want to thank Carolyn Smith, Mr. Whitney, and Karen Lasley for all of their work on this application for the last few months. Thank you all. Joseph Strange: Thank you Eddie. Is there any opposition to this matter being placed on the consent agenda? The Chairman has asked Dave Redmond to review this item. ( David Redmond: Thank you Mr. Strange. The applicant Floridays, L.L.C. proposes to rezone the existing R-7.5 property tu Cunditiunal A-24 Apartment District in order to construct a 16 unit townhome style community of 1.5 acres at a density of 10.38 units to the acre. The request for the A-24 District rather than the A-18 District is due to the proposed maximum lot coverage of60 percent, as the A-I8 District allows up to 40 percent lot coverage. While the dwellings are proposed as townhome style, ownership of the units is to be as condominiums. Also, since the original submission of the application, the applicant has worked closely with City staff, in an effort to meet all the suggestions, requests and requirements the City has while attempting to retain their original number of 20 units. The revised plan now depicts a reduction of four (40) nits for a total of 16. At the request of staff, the layout now contains nine (9) guest parking spaces, an increase of two spaces from the previous plan and in an increase from five (5) from the original plan. This is significant as there is no space for any other guest parking nor is there any off-site parking in the vicinity of this site. The Commission considered this application last month. There was significant opposition and fair amount of discussion. We understand that the opposition has not gone away and will live to fight another day, that day being at City Council. Nonetheless, staff felt that the applicant had responded as best that it could to their concerns. They support this application and the Commission agrees and therefore, supports it by consent. Joseph Strange: Thank you Dave. Madame Chairman, I make a motion to approve item 26. \, Janice Anderson: We have a motion by Joe Strange and a second by Gene Crabtree. Item #26 Floridays, L.L.C. Page 2 ( AYE 11 NAY 0 ABSO ABSENT 0 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KA TSIAS AYE LIV AS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved item 26 for consent. Janice Anderson: Thank you very much. ( ", ( CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-709B DATE: March 13, 2009 FROM: Mark D. Stile~L" \~ B. Kay Wilso~- DEPT: City Attorney DEPT: City Attorney TO: RE: Conditional Zoning Application; Floridays, LLC - Rezoning The above-referenced conditional zoning application is scheduled to be heard by the City Council on March 24. 2009. I have reviewed the subject proffer agreement, dated April 29, 2008 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen / PREPARED BY: lIB SillS. ROURDON. WI AHrnN &. llVY. P.c. , I FLORIDAYS, LLC, a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 29th day of April, 2008, by and between FLORIDAYS, LLC, 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 parcel of property located in the Lynnhaven District of the City of Virginia Beach, containing approximately 1.54 acres which is more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference. Said parcel is hereinafter referred to as the "Property"; and WHEREAS, the Grantor has initiated a conditional amendment to the Zoning Map of the City of VIrginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from R-7.5 Residential District to Conditional A-24 Apartment District; and WHEREAS, the Grantee's policy is to provide only for the orderly development ofland for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes I incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's rezoning application gives rise; and GPIN: 1477-82-9949 1 PREPARED BY, IIIB SYK~S. ROURDON. .. AlIrnN & llVY. P.C WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the A-24 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives, assigns, grantee, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenant and agree that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantee, and other successors in interest or title: 1. When the Property is developed, it shall be as a residential condominium, substantially in accordance with the "CONCEPTUAL SITE LAYOUT BONNEY PLACE 4303 BONNEY ROAD VIRGINIA BEACH, VA", dated 04/29/08, prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Concept Plan"). 2. When the Property is developed, vehicular Ingress and Egress to the Property shall be limited to one (1) entrance from Bonney Road as depicted on the Concept Plan. Should the parcel which adjoins the eastern boundary of the Property be rezoned andlor subdivided, access to Bonney Road shall be shared and shall be shifted to the east to align with Thalia Road. A cross access and shared maintenance easement shall be granted in favor of the adjoining parcel to the east, along the shared property line prior to Site Plan approval, in order to facilitate future shared access. Grantor shall, prior to issuance of the first occupancy permit for a condominium unit in Bonney Place, deposit the sum of $3,000.00 in a reserve for replacement account with the Condominium Association to fund the Association's future removal, re-grading and seeding of the portion of the drive aisle which 2 PREPARED BY: mm SYns. BOURDON. m AlIrnN & lM. P.C will be eliminated when the access is combined with the adjoining parcel to the east and realigned. 3. The total number of dwelling units permitted to be constructed on the Property shall not exceed sixteen (16). Each dwelling unit shall contain a minimum of 1400 square feet of living area, and a one (1) car garage. 4. The architectural design and exterior building materials of the residential buildings will be substantially as depicted on the Concept Plan. 5. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, includin~ mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; 3 PREPARED BY: IISYll:S. DOURDON. AIIrnN & llVY. P.C (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the Grantor and the Grantee. 4 PREPARED BY: . syn:s. DOURDON. .. AIIrnN & llVY. P.C WITNESS the following signature and seal: Grantor: Floridays, LLC., a Virginia limited liability company By: (SEAL) ~ STATE OF VIRGINIA CTIY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 30th day of April, 2008, by Guy B. Liskey, Managing Member of Floridays, LLC, a Virginia limited liability company, Grantor. My Commission Expires: Notary Registration No.: August 31, 2010 192628 5 PREPARED BY: I SYns. ROURDON. AlImN & U:vv. P.c. EXHIBIT "A" LEGAL DESCRIPTION ALL THAT certain lot, piece or parcel of land situate, lying and being near Thalia, in the City of Virginia Beach, Virginia, (formerly in Princess Anne County, Virginia), and being more particularly described as follows: BEGINNING at a point in the southern side of Bonney Road (formerly Old London Bridge - Norfolk Road), which point of beginning is 227.92 feet easterly from the southeastern intersection of Andrew Avenue and Bonney Road, and from said point of beginning thence running along the southern line of Bonney Road South 880 55' E a distance of 50 feet to a point; thence turning and running South 60 45' W a distance of 596.5 feet to a point; thence turning and running North 870 11 W a distance of 150.7 feet t.o a point; thence turning and running North 80 55' E 413 feet to a point; thence turning and running South 880 55' E a distance of 84.8 feet; thence turning and running North 60 45' E a distance of 180 feet to the point of beginning. Said parcel being all of Lot "A" as shown on the plat entitled "Property of Andrew Land, located near Thalia, in Princess Anne County, Virginia", dated June 26, 1951, and duly of record in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 29, at Page 29 and all of the parcel shown on the plat entitled "Property of Andrew Land, located near Thalia, Princess Anne County, Virginia", dated October 15, 1952, duly of record in the Clerk's office aforesaid in Map Book 32, at Page 68. GPIN: 1477-82-9949 ConditionalRezoning/FloridaysjProffer 6 HARMONY INVESTMENTS Map D-7 M~p Not to Sc~le ~ I-I N R-10 Relevant Information: · Kempsville District · The request is for a Conditional Change of Zoning from 1-1 Light Industrial to A-36 Apartment District. · Applicant proposes a multifamily apartment development consisting of 224 units within three (3) four-story buildings. Density is 32 units per acre. Evaluation and Recommendation: · Planning Staff recommended approval · Planning Commission recommends approval (7-3). · There was opposition. ~~....~"'\- ,#~~I~~"'.Y.q,. fl{", . ,',\\) <u ' .~~ ~\'f""' ..iii '\:.""._~~:J' ~o;;.J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: HARMONY INVESTMENTS, INC., Chanae of Zonina District Classification, 1-1 Light Industrial District to Conditional A-36 Apartment District, 5321 Greenwich Road. KEMPSVILLE DISTRICT. MEETING DATE: March 24,2009 . Background: The applicant proposes to rezone the property, currently zoned 1-1 Light Industrial District to Conditional A-36 Apartment District for the purpose of developing the site with 224 multi-family dwellings, parking, landscaping, leasing office, clubhouse and pool. The proposal is part of a proposed development, Greenwich Village, which also will include offices and a hotel. The applicant owns this site and the sites on the north side of Greenwich Road and plans to develop the sites as a mixed-use project. The Comprehensive Plan designates this site as part of Strategic Growth Area 3 (Newtown SGA). Strategic Growth Areas are designated to absorb most of the city's future growth, both residential and non-residential and, as such, are planned for more intensive uses than most other areas of the city. Another common characteristic is the practice of integrating, not separating, a diverse cluster of land uses. These result in a compact, yet compatible mix of uses. They include office, retail, service, hotel and, where appropriate, residential uses, (Pages 57-58, Policy Document). . Considerations: The submitted conceptual plan shows three (3) four-story buildings containing a total of 224 multi-family dwelling units for a density of 32 units per acre. The proposed buildings are arranged in a courtyard style with the proposed amenities, the clubhouse, pool, and fitness room, in the courtyard. The proposed buildings are situated 3D-feet from Greenwich Road, 75-feet from the western property line, 130-feet from the eastern property line, and 75-feet from the southern property line. Parking is dispersed along the western, eastern, and southern areas of the site and in the courtyard. Street frontage, interior parking lot, foundation, and perimeter landscaping are also shown on the plan. The proposed architecture of the buildings is contemporary in design with traditional elements. The applicant is using several types of building materials to provide architectural interest, help break up the mass of the building walls, and Harmony Investments, Inc. Page 2 of 2 provide a more human scale to the buildings. Building materials include Hardieplank@ smooth siding accent bands at the roof line and the gable ends, vinyl lap siding, shingle panel siding, brick, and cast stone for the water table element. Proposed roofing materials are CertainTeed@architectural shingles. There was opposition to this request. . Recommendations: The Planning Commission passed a motion by a recorded vote of 7-3 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 Manage~ k ,d3~ Map D-7 Map Not t.o Scale +. I-I N R.lO #18 March 11, 2009 Public Hearing APPLICANT I PROPERTY OWNER: HARMONY INVESTMENTS STAFF PLANNER: Faith Christie REQUEST: Conditional Chanqe of Zonina (1-1 Light Industrial district to Conditional A-36 Apartment district) ADDRESS I DESCRIPTION: 5321 Greenwich Road GPIN: 14675462280000 ELECTION DISTRICT: 2 - KEMPSVILLE SITE SIZE: 6.97 acres AICUZ: Less than 65 dB DNL APPLICATION HISTORY: This application was deferred by the Planning Commission on February 11, 2009 to provide an opportunity for the Point 0' View neighborhood and the applicant to discuss several issues raised by the community at that public hearing. The applicant proposes to rezone the property, currently zoned SUMMARY OF REQUEST 1-1 Light Industrial District to Conditional A-36 Apartment District and to develop the site with 224 multi-family dwellings, parking, landscaping, leasing office, clubhouse and pool. The proposal is part of a proposed development, Greenwich Village, which also will include offices and a hotel. The applicant has secured this site as well as sites on the north side of Greenwich Road and plans to develop the sites as a mixed-use project. The submitted conceptual plan shows three (3) four-story buildings containing a total of 224 multi-family dwelling units. The proposed buildings are arranged in a courtyard style with the proposed amenities, the clubhouse, pool, and fitness room, in the courtyard. The proposed buildings are situated 30-feet from Greenwich Road, 75-feet from the western property line, 130-feet from the eastern property line, and 75- feet from the southern property line. Parking is dispersed along the western, eastern, and southern areas of the site and in the courtyard. Street frontage, interior parking lot, foundation, and perimeter landscaping are also shown on the plan. HARMONY INVESTMENTS, INC. Agenda Item 18 Page 1 The proposed architecture of the buildings is contemporary in design with traditional elements. The applicant is using several types of building materials to provide architectural interest, help break up the mass of the building walls, and provide a more human scale to the buildings. Building materials include Hardieplank@ smooth siding accent bands at the roof line and the gable ends, vinyl lap siding, shingle panel siding, brick, and cast stone for the water table element. Proposed roofing materials are Certain T eed@ architectural shingles. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Undeveloped site SURROUNDING LAND USE AND ZONING: North: South: . Greenwich Road and Interstate '-264 . Norfolk and Southern Railway right-of-way . Across the N & S R.O.W. is the Point O'View subdivision / R-10 Residential . Offices 11-1 Light Industrial . Newspaper plant 11-1 Light Industrial East: West: NATURAL RESOURCE AND CULTURAL FEATURES: The site is partially wooded. There are no significant natural resources on the site. There are no cultural features associated with the site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Greenwich Road is a two-lane undivided collector street. The Virginia Department of Transportation (VDOT) has a project in the vicinity of this development. The 1-264 Witchduck Road project is for the construction of collector- distributor roads from westbound 1-64 to eastbound 1-264 and roadway improvements at the Newtown Road and Witchduck Road interchanges. As part of the interchange improvements, a flyover is proposed over 1-264 from Greenwich Road to Cleveland Street. At this point, the f1yover does not appear to directly impact this application; however, the alignment has not been finalized. There may be indirect impacts to this site, such as a cul-de-sac on Greenwich Road east of the site and the connection to the f1yover, which would redirect all the site traffic west rather than split between the east and west directions. Public Works I Traffic Enaineerina: . The proposed development does not meet the criteria that trigger a Traffic Impact Analysis under VDOT Section 527. . A left turn lane is required on Greenwich Road for the eastern (main) entrance to the site. This left turn lane meets the requirements of Section 3.11 within the City ot Virginia Beach Public Works Specifications and Standards and must be designed accordingly. . Right-ot-way improvements such as pavement widening, sidewalk, curb and gutter, streetlights, and HARMONY INVESTMENTS. INC. Agenda Item 18 Page 2 drainage will be required along Greenwich Road. · A Traffic Signal Bond may be required for a potential signal at Greenwich Road and the future f1yover. Since the status of the f1yover project could change by the time this plan, if approved, undergoes Site Plan review, the bond requirement for necessity and amount will be evaluated at that time. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Greenwich Road 6,526 ADT 9,900 ADT 1 Existing Land Use --z - 530 ADT Proposed Land Use 3 - 1,505 ADT (22 Morning Peak Hour Vehicles / 90 Afternoon Peak Hour Vehicles) ,.- Average Daily Trips 2 as defined by 6.97 of 1-1 Light Industrial zoning 3 as defined bv 224 multi.familv dwellina units WATER: This site must connect to City water. There is a 48-inch City water main along the southern portion of the site within a 3D-foot portion of a HRSD easement, and there is a 30-inch raw water line along the eastern portion of the site within a 57-foot utility, drainage, and access easement. A stub for an eight-inch City water main is located within the southern portion of the Norfolk Southern right-of-way coming in from South Parliament Drive. SEWER: City sanitary sewer is not available to the site. The applicant must extend the gravity sanitary sewer from Greenwich Road. The applicant must also provide sanitary sewer and pump station analysis of Pump Station #355 to ensure future flows can be accommodated. There is a 25-inch HRSD force main along the southern portion of the property within a 30-foot HRSD easement, and an eight-inch City gravity sanitary sewer main along the southern portion of the Norfolk Southern right-of-way. SCHOOLS: School Current Capacity Generation 1 Change 2 Enrollment Point O'View Elementary 404 599 25 25 Larkspur Middle 1,574 1,552 10 10 Kempsville High 1,819 1,826 11 11 .. " generation represents the number of students that the development WIll add to the school 2 "change" represents the difference between generated students under the existing zoning and under the proposed zoning. The number can be positive (additional students) or negative (fewer students). POLICE: A lighting plan should be submitted during site plan review. The plan should include the height of poles located in the parking lot along with the location of all pole-mounted and building-mounted lighting fixtures. The plan should also list the lamp type, wattage and type of fixture. It is recommended that full cut-off fixtures be used for parking lot lighting. HARMONY INVESTMENTS, INC. Agenda Itent 18 , Page 3 To ensure the ability of emergency responders to quickly locate dwellings, numerical addresses (building numbers and unit numbers) are to be displayed as required by the City Code. The color of numbers should be in stark contrast to the background color of the building surface and be clearly visible from the parking lot. Recommendation: Staff recommends approval of this request with the submitted proffers. The proffers are provided below. EVALUATION AND RECOMMENDATION Comprehensive Plan: The Comprehensive Plan designates this site to be within Strategic Growth Area 3 (Newtown SGA). Strategic Growth Areas are designated to absorb most of the city's future growth, both residential and non-residential and, as such, are planned for more intensive uses than most other areas of the city. Another common characteristic is the practice of integrating, not separating, a diverse cluster of land uses. These result in a compact, yet compatible mix of uses. They include office, retail, service, hotel and, where appropriate, residential uses. (Pages 57-58) Where opportunities present themselves, development in Strategic Growth Area 3 should include mix of mid to high-rise office buildings as well as lower intensity light industrial and other non-residential uses. Some added retail uses scaled to support the local employment base may be appropriate. Evaluation: The request to rezone this site from 1-1 Light Industrial District to Conditional A-36 Apartment District for the purpose of developing the site with 224 multi-family dwellings, parking, landscaping, leasing office, clubhouse and pool is acceptable. The proposed development, considered by itself, does not comply in every respect with the recommendations of the Comprehensive Plan for Strategic Growth Area 3; however, the proposed overall project of offices, hotel, and multi-family dwellings will provide a mixture of uses consistent with the recommendations of the plan. As previously noted in this report, the applicant has secured this site as well as the sites north of Greenwich Road adjacent to Interstate 1-264 and plans to develop those sites with offices and a hotel. The proposed 1-264 f1yover connecting Greenwich Road with Cleveland Street, north of 1-264, is planned to the west of this site. When the f1yover is developed, a cul-de-sac will be developed on Greenwich Road east of the site, terminating any through traffic from Witchduck Road to Newtown Road. The applicant's proposed Greenwich Village will then be a truly integrated development, as Greenwich Road at this location will have no through traffic. It must also be noted that the Light Rail Transit (LRT) from downtown Norfolk to the Norfolk / Virginia Beach border will terminate at Newtown Road, less than a mile from this site. The applicant proposes to market to young professionals who will work in the future offices across Greenwich Road or utilize the light-rail system as means of travel to and from work in Norfolk. PROFFERS The following are proffers submitted by the applicant as part of a Conditional Zoning Agreement (CZA). The HARMONY INVESTMENTS,INC. Agenda Item 18 Page 4 applicant, consistent with Section 107(h) of the City Zoning Ordinance, has voluntarily submitted these proffers in an attempt to .offset identified problems to the extent that the proposed rezoning is acceptable," (~107(h)(1 )). Should this application be approved, the proffers will be recorded at the Circuit Court and serve as conditions restricting the use of the property as proposed with this change of zoning. PROFFER 1: When developed, Grantor shall develop the dwelling units upon the Property in substantial conformity with the conceptual site plan prepared by MSA, P.C., dated October 31,2008, and titled .Conceptual Site Layout and Landscape Plan of Greenwich Village, Greenwich Road, Virginia Beach, VA" (the .Conceptual Plan"), a copy of which is on file with the Department of Planning and has been exhibited to the City Council. PROFFER 2: When developed, the structures shown on the Conceptual Plan shall be developed using architectural designs and building materials shown on the rendering by Cox, Kliewer & Company P.C. dated October 31, 2008 and titled .Conceptual Apartment Building Front Elevation; Greenwich Village; Virginia Beach, VA," a copy of which is on file with the Department of Planning and has been exhibited to the City Council. PROFFER 3: Further conditions lawfully imposed by applicable development ordinances may be required by the grantee during detailed site plan and I or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. STAFF COMMENTS: The proffers listed above are acceptable as they dictate the level of quality of the project. The City Attorney's Office has reviewed the proffer agreement dated October 31, 2008, 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 Po/ice Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. HARMONY INVESTMENTS, fNC. Agenda Item 18 Page 5 AERIAL OF SITE LOCATION HARMONY INVESTMENTS. ,I'1C. ,Agenda 1te"l18 RaQe 6 I I o c: OJ ll)() ! ,~ i'j- 1> "'.J:. ... U. 5 ... ~ .- II ~1 ~ ~ c: ~ -5 ~. ,. \ ;; ~,'. :: "" "'~ :e I OJ ~ !! v s... $ J: ~Oal~ " ,'l; '- I.i '" :> z ~ t N .., E ~ '11:: ~1 >( ~ q,'; }< .? ,*"",1<,;'; +t~":"\.H'>;l tt co" Ie !i ~.~ lhi} tn! ",oSA. t ~ ~ ~. ;:- ~' ~, r, B .. \''''l "If ... ,-.., ~ ~~ ~lr~ 51- ': ill Ells ~ ::1j!lt '? U');~ >> '~~ l '-;1l. ~ 11 ~ o..! ~ t! : - - .~ .,'''',..,'.. ~.. . r % ;;Z .$ ~~ ~ e.c h ~ ;:;~ II$! t-i", Ei. ""- Ei 1 1 :Ii ,l;: '1l .1I'l) ::: '$ ~ l'ii~ ' ~.I~~! ~ l w8) Cd:~ c C::;~,~'" v fC~~'" ~ ..tt.:~ ~ --.;::~~"~ 01' i ~ r ,C ,0 , ., 1\ v.' 'ii ' I II :1 I~ .i t' lif III l~ ,. ill f $ . J PROPOSED S,JTE PLAN HARMONY INVESTMENTS, INC. Agenda Itet;r!.18 Page 7 ? "': : ~'t~: ! ~ ~. ii~ \ I I t '$,' ,~ ,..,.,.t:.~. ~.......,... ~!'...'............... . ;t w ~ '. ~ ~ ; ~ ~~:e"$f~ "t. !.; :it''' 'i~~S.! ~ ~~ ",- PROPOSED SITE PLAN _ ENLARGED HARMONY INVESTMENTS, INC. Agenda Item 18 Page 8 I I 8 " 0. Vl .,,81i elf '0 ClO!: E... E ut:VI ... "00 .... 0.00 CO<OIll: m'<l'O&l'l NNON -IINM_ Gi ftli, VI ~! :J lU'n;"O 0: CI CI ..~< ~ W' 0. .1:; J! P II); Vi Ii: VI ~ 8 u " " 0. 0. Vl VI &1'1 ..... o 0 '<l' '<l' II 0 C In ~s~ ~ In'" ful~ft e1<ll:i ~].E:a ii ~ .....:J W V)j'~~~ ~ bClGI'~ e c;lll:ell ~ ._i co ~U') co ~! ,S 0.1n .S ftli~VI": ~ 0.; ~~:: :. .. VI 8 8 III III 0. 0. VI VI N ..0 - "" - - .... ... -....--- I II :j; <~" ~, ~ ~ ~ ~ u u " " 0. 0. Vl Vl In ..0 N '<l' .... .... ] o !: i:l i:l e!..:.:. GI '5 :: :2 g';3 ~ Ill:~ c: atU at c" C ~~ ~ :.~ a! 41 U If o 'i:i..:.:. i:l e'ti -8 '~R .~ GIN c; Ill:~ c.. atV ell .!ill c -l! Vl ~ :. =., 0.. . I i l If' !if It J t 1 I t1li ~ hitl ~ P'II (5 dliJ t ~ iHtr ~ lid! r- 'lid ~ · )t l ~ ~ ~- r I / F ~ Q) ....., C Q) I U .f=. J: r- U 1. .- ~ ~ "0 !.r ... " .s: 0 c: 0 Ill: U c: Q) <II <II .J:: GI K: v III .. Q) '~ l'lI .L ~ ~ c: '2 GI .~ ftI (J GI .. ~ 0 :> HARMONY INVESTMENTS,ltJC. Agenda Item 18 R21ge 9 PROPOSED BUILDING ELEVATION HARMONY INVESTMENTS. INC. Agenda Item 18 Page 10 I I I II Map D-7 Mop Not to Scole Investments Inc. + 1-) N &>, R-10 03-26-1984 10-23-1989 Granted Granted ZONING HISTORY HARMONY INVESIMENTS, INC. Agenda Itefl, 18 Page 11 .. I DISCLOSURE STATEMENT .. I APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers. members, trustees, partners, etc. below: (Attach list if necessary) SEE ATTACHED LIST 2. List all businesses that have a parent-subsidiary1 or affiliated business entiti relationship with the applicant: (Attach list if necessary) SEE ATTACHED LIST D Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) SEE ATTACHED LIST 2. List all businesses that have a parent-subsidiary 1 or affiliated business entiti relationship with the applicant: (Attach list if necessary) SEE ATTACHED LIST o Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 1 & 2 See next page for footnotes z <=> I I ! N ga ~ <=> I I f--4 I I ~ Z <=> u Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes CL No 0 If yes, what is the name of the official or employee and the nature of their interest? Conditional Rezoning Application Page 11 0'12 Revised 11/1612006 HARMONY INVESTMENTS, INC. Agenda Item 18 Page 12 I I z o I I ~ U I I t-.:i =-- ea c;.:, z I I Z o N ga ~ o I I f--4 I I ~ Z o u I II DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) Harmony Investments, Inc. SA,P.C. Cox Kliewer & Company, P.C. illcox & Savage, P.C. wneBank oodman and Company, P.C. Waverly , .Parent-subsidiary relationship" means "a relationship that ex ists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code ~ 2.2-3101. 2 "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity. (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in deter mining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code ~ 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled publiC hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. / 5.?~'" _ Applicant's nature ~c~ ~~~~"" Print Name Property Owner's Signature (if different than applicant) Print Name Conditional Rezoning Application Page 12 of12 Revised 7/3/2007 HARMONY INVESTMENTS, INC. Agenda Item 18 , Pag~ 13 Item I: PROPERTY OWNER DISCLOSURE J 1 0 Eut Street, LLC o Mark F. Garcea o Page S. Johnson, II Item 2: Manufacturing Properties: M & G Electronics Corporation 889 Seahawk Circle Virginia Beach, Virginia Commercial Properties: Northampton Executive Center 1300 Diamond Springs Road Virginia Beach, Virginia Greenbrier Executive Center 1413-17 Battlefield Boulevard Chesapeake, Virginia 58'" Street Warehouse, LLC 17 Acres - Greenwich Road Virginia Beach, Virginia Retail Shoppillg Properties: Kristal Lake Shores. Inc. 5300 Shore Drive Virginia Beach, Virginia Guest Service Properties: Ramada Limited 3108 Atlantic Avenue Virginia Beach, Virginia Hamplon Inn 701 Woodlake Drive Chesapeake, Virginia Four Points by Sheraton 351 York Street Williamsburg, Virginia DoubleTree Hotel 1900 Pavilion Virginia Beach. Virginia Hampton Inn & Suites Norfolk Airport 1511 USAA Drive Norfolk, Virginia Marine & Industrial Plastics. Inc. Highway 17 N Pollocksville, North Carolina Branch Executive Quarters 4012-16 Raintree Road Chesapeake. Virginia Crossway Center 1435 Crossway Boulevard Chesapeake, Virginia 3 10 East Street, LLC 6.98 Acres - Greenwich Road Virginia Beach, Virginia Woods Comer Shopping Center 1920 Centerville Turnpike Virginia Beach, Virginia Super 8 2604 Atlantic A venue Virginia Beach. Virginia Wyndham Virginia Beach Oceanfronl Oceanfront & s.,u. Street Virginia Beach. Virginia Hilton Norfolk Airport 1500 N. Military Hwy Norfolk. Virginia Ramada Inn 1776 725 ByPass Road Williamsburg. Virginia Hampton Inn & Suites 1421 Battlefield Blvd Chesapeake, Virginia DISCLOSURE STATEMENT HARMONY INVESTMENTS, INC. Agenda Item 18 Page 14 Item #18 Harmony Investments, Inc. Change of Zoning District Classification 5321 Greenwich Road District 2 Kempsville March 11, 2009 REGULAR Donald Horsley: The next item is item 18, Harmony Investments, Inc. An application of Harmony Investments for a Change in Zoning District Classification from I-I Light Industrial District to Conditional A-36 Apartment District on property located at 5321 Greenwich Road, District 2, Kempsville. Warren Tisdale: Good afternoon. My name is Warren Tisdale. I'm an attorney. My office is at One Commercial Place, in Norfolk. We also have offices at Town Center. I'm pleased today to be here to represent Harmony Investments, which is the applicant. Harmony is represented today by Brooks Johnson. I also have with Bob Miller and Mike Perry, both of MSA. When I was here before you last time, and I won't repeat all of my comments again, but try to stress two things. One was quality. I told you about the team that had been put together to come up with a conceptual plan for this property, and the team that came up with the elevation. We created the kind of team that knew what they were doing, and they put together a quality product. The construction costs for this proposal are in the neighborhood of $28 million dollars, so it warranted that kind of treatment. What you did not have before you last time and what you now have, and I understand the booklet was circulated at the informal meeting this morning, were some illustrations, which sometimes when you look at things like this they seem to be a little sterile. You don't get a feel for what they look like at street level. The material you saw this morning gave you some perspective that really gives you an idea ofthe quality of the materials and the quality of the design that is going to go into this. The qualities and materials, again, they are all focused towards creating the kind of environment that attracts young professionals. There is a pool. There is a workout room. These are amenities that we think would make this attractive to that demographic and the kind of people that we would like to see live there. You saw in the materials also that in terms the spread on the types of apartments, I think there are 96 singles, 122 doubles, 2 bedrooms and then 6 three bedrooms. Again, that spread, and the rents running from $1,100 to $1,700 projected, all fits our plan, and backs up with what it is we tell you that we want to do there. Other than quality, what I stressed was location. I stressed that the location was in Strategic Grown Area 3, and again that needs repeating. It is in a Strategic Growth Area. As you all know too well, those are areas that are designated by the policymakers as appropriate for more intensive development with the idea to concentrate development along certain arteries or certain gateways so that you can get a handle on the sprawl that otherwise would affect you. If you look at the Comprehensive Plan, the Strategic Growth Plan, I think as the staff report noted, what we're proposing when considered in the context of Greenwich Center as a whole in addition to the apartments that are planned here does fit within the Comprehensive Plan. A couple of other things about location is that it is on 1-264. Item #18 Harmony Investments, Inc. Page 2 Unfortunately, while some of the things that I'm going to talk about later to get this away from the automobile to a great extent of getting around Hampton Roads involves getting to one of the main highways like 1-264 or getting on the interstate system. Having this many residents close to that highway says they are not spending a lot of time on neighborhood streets getting to the main roads to go to other towns or other cities or other locations in Hampton Roads makes a lot of sense. Another thing about the location that makes good sense is that it is very close to Town Center. Again, I don't have to speak to this group about the critical mass that the city is seeking there. This many units very close to Town Center creates the kind of demographic that hopefully will tend to congregate around Town Center to use the facilities, to use the amenities, the restaurants that are available now, and are going to be available there in the future. Finally, looking towards the future and looking away from the automobile, this location is only a mile away from what is going to be the Newtown Station for the Light Rail. Right now, that only gives you a perspective westward. Hopefully, in the future, we might be able to look eastward, but now, for somebody who lives in those apartments, it will be a short bicycle ride or a short jaunt to get on the Light Rail if they were to choose to live in Norfolk. That is another reason, again it sort of ducktails nicely with this City's designation of Strategic Growth Areas. Now, Strategic Growth Area 3, when it was created, it was acknowledged there is a neighborhood, Point 0' View there, of course, which is R-I 0 district. And, the line had to be drawn somewhere and it was drawn, I think in a manner where again, the policy makers and the planners decided that it could be drawn with the least impact on single-family neighborhood. And, the natural or the existing barrier that exists there of course is the railroad tracks, the railroad tracks, in which the Light Rail would run, ifit doesn't continue eastward. Now, the railroad tracks essentially seal off any vehicular access between this development and the neighborhood to the south. Greenwich Road runs from Newtown Road to Witchduck, and really there is no connection between to get back into these neighborhoods. You saw in the staff report the trip generation information on how many trips would be created for purposes of getting on Greenwich Road. It would be an interesting to say how many vehicles are gong to come from this project into the neighborhood in Point 0' View along Parliament and Academy. And the answer would be zero because there is no way to get there. The only reason for them to go to the neighborhood is if they had a friend or an acquaintance there who they wanted to visit. So, that is why the railroad tracks and the traffic situation provide a good buffer for what otherwise is encouraged by the Strategic Growth Area. It's true that there are about 10 houses, I guess along Academy or Parliament who backup to the railroad lines now. Their backyards are right on the railroad line. The railroad property is 66 feet deep, and then, the first building is 75 feet beyond that. So, there is some separation. We can't do much about the visual impact. But the fact of the matter is if these works are going to have neighbors they do not have before. Everybody likes the idea of comparing to what you propose to what is there now, which is nothing but of course the correct analysis is what might otherwise be developed there, and you can't always rely on that property being vacant. So, what we're proposing now, as I understand was also circulated at the informal meeting is to provide a six-foot high privacy fence along the south side of the subject property. We propose the following plantings on the outside of the fence, large deciduous shade trees, evergreen shrubs, and ornamental flowering shrubs with the purpose being to provide screening for the adjacent neighborhood. You can see this perspective is somewhat from the Item #18 Harmony Investments, Inc. Page 3 neighborhood looking up to where you can see the tracks, the fence with the landscaping on this side. I think there was a comment at the information meeting about sort of the stalk appearance of the fence looking at it from the inside. We also propose to put not the same level oflandscaping but some evergreen type shrubs on the inside of the fence also, again, with the idea of trying to provide some visual shield from the perceived impacts of the apartments on the neighborhood. Again, I think we got a quality project. I think we got a good location. I know the people in Point 0' View would rather we did something else. We met with a group of them at the direction of the Planning Commission on February 23,2009. They had a group of very well-prepared people who had done their homework. We sat down and had a very respectful direct meeting. As might have been expected, there wasn't much room for compromise, I don't think on either side. But we did, I think, certainly in a civil fashion, discuss the issues. We did let them know what our approach was, and they were certainly articulate in expressing their comments on that, but we did meet with them, I think, under very good circumstances. Janice Anderson: Thank you for meeting with them Mr. Tisdale. Thank you. I got a question. What is the height of the fence you're proposing? Warren Tisdale: Six feet. Janice Anderson: Are there any other questions? Ronald Ripley: I got a question. I appreciate the additional elevations that you provided. They don't clarify some things. As you can see on the previous ones submitted, and they show quality, with the brick and the rock cast and different materials but a couple of other questions. These are just details. Railings and your proposed columns, and what kind of. material would this be made out of? Warren Tisdale: Bob Miller is here and he might the right person to address that to since I don't know the answer. Ronald Ripley: Is it fiberglass columns. The reason why I bring it up is we want material that will last. Robert Miller: I am Bob Miller with MSA, and the architect was here Henry. I am sure he was. He's gone. Henry Livas: Okay. Robert Miller: I apologize. But yes it will be vinyl and or acrylic type finishes so they are maintenance-free. But I am not an architect. David Redmond: That is what you keep saying. Item #18 Harmony Investments, Inc. Page 4 Robert Miller: No. I kind of remind them, because we had a nice discussion a couple of weeks ago about this. Ronald Ripley: Thank you sir. Janice Anderson: Are there any other questions for Mr. Tisdale at this time? Thank you. Warren Tisdale: Thank you. Donald Horsley: The first speaker in opposition is John Settle. Janice Anderson: Welcome sir. Please state your name for the record. John Settle: Madame Chairman, Vice Chairman, Commission Members, and staff. Good afternoon. My name is John Settle and I live at 5201 Academy Court. Before we get started, if we could see these secret documents for the first time, and that would be great. If we could move them to where we could see the Commission members as well? There are a lot of people who are blocked. Janice Anderson: Mr. Tisdale do you mind? Have these seen these elevations yet? John Settle: We have not seen these at all. I want to thank you for the 30 day deferral that you allowed for the applicant, Harmony Investments, to meet with Point 0' View to come to an agreement. I wish I could report a positive outcome from that meeting. As their representative related, there was no compromise. Not from our side. We came there willing to think completely out of the box and I will just tell you right now, they would not come off of A-36 period. But let me get into what I wanted to tell you. A delegation of five Point 0' View residents met with Harmony Investments and their representatives, me being one of them. We went to this meeting with an open mind and a willingness to work together to reach a fair and equitable solution. In our meeting, we asked if there were any other uses that Harmony might consider other than A-36. Completely off the chart, we were asking for anything such as assisted living or any lower-density residential use. Harmony's response was that A-36 was the one and only option that was on the table for discussion. In this meeting, we inquired if they would provide any protection to the Point 0' View neighborhood from the high density apartments, and initially, a wooden fence, but now I understand it is a plastic fence, shrubs, and a redirection of the light. We attended this meeting in good faith and to show due diligence, but the applicant was adamant in the A-36. There was no compromise. No amount of buffers can overcome the shear size and scope of this proposed structure. I do want to point out to the Planning Commission that this property is located in Strategic Growth Area 3. Everybody wants to keep dropping the numbers. Three is Newtown. It is not Pembroke. It is not Strategic Growth Area 4. The map on the Comprehensive Plan clearly shows on page 66 that we are in 3 and not 4. And also the recommendations on page 67 of the Comprehensive Plan and I quote, " where opportunities present themselves development in this area should include a mix of mid to high rise buildings as well as lower intensity light industrial and other non-residential uses. "That is .1 Item #18 Harmony Investments, Inc. Page 5 the contract that we have with the City of Virginia Beach. We are here to ask the Planning Commission to uphold the recommendations of the Comprehensive Plan, the Strategic Growth Area document, and to protect our homes from this multi-family intrusion by voting no to this rezoning request. We have made the largest investment of our lives in our homes knowing that we live adjacent to 1-1 Light Industrial zoned land without question for all of these years, some of them over 33 years. Our industrial neighbors have been good neighbors in the past. Greenwich Road is mostly complete with industrial and offices such as Hoffman Beverage, the Virginian-Pilot, ECPI, and other high quality businesses. We are not asking for the character of this area to be changed but to leave it as it is presently zoned and have the applicant redevelop it under these guidelines. We do not object to development. We just want this property to remain light industrial, as all other property along Greenwich Road. We definitely need the light industrial for the much needed jobs in this economy. I am representing the neighborhood and have presented a petition with over 200 signatures. If I could have those people stand up now please for the circulation. And I might add that is a 98 percent signing. The two percent are the people that are retired and in Florida or are deployed in the military. We have several military families in our area. I thank you for your time and concern over this request. I'm available for any questions, and as you can see by the turn out, we're very passionate about this topic. Thank you. Janice Anderson: Thank you very much Mr. Settle. I thank everyone for coming down. Are . there any questions of Mr. Settle? Go ahead. Eugene Crabtree: I got one question. You said that when you met with the developer that they were unwilling to give whatsoever in their compromise. It appears to me that neither side was willing to give. Am I true with that statement? John Settle: No sir. I think and I can rephrase this back to you. What would you think would be a fair compromise, fifty percent of thirty-six? Eugene Crabtree: I'm just saying. You said they wouldn't compromise. You also have indicated that you did not want to compromise; so, the meeting did not come to any fruition right? John Settle: We offered less than A-36, whether that is A-24, A-18, which is a fifty percent, which is a compromise. And they said we could stop right there. We're not coming off of A- 36. Eugene Crabtree: Okay. Janice Anderson: Are there any other questions? Kathy Katsias: So, if we were going to ask you today, what would you compromise A-24? What were you going to suggest to them if there was a compromise? Item #18 Harmony Investments, Inc. Page 6 John Settle: I think that this late in the game for us to try to circumvent the Planning Commission's documents and the Strategic Growth Area, I don't think it is fair for us. I think the Planning Commission is the organization that says that we should stick to Strategic Growth Area 3. We feel A-24 is the maximum we would even consider much less what the neighborhood says. Obviously, I think A-24 height limitation would be far more palatable than an A-36. Now, am I going to say that I'm gong to agree to that? We would have to look at the elevations and things of that nature. Again, as we alluded earlier, there was more outside of the code that's inside the code. I can't tell you let's go A-24 without acknowledging that if you live by the sword, you die by the sword. We have lived by that document as well. Janice Anderson: Thank you. Go ahead AI. Al Henley: Mr. Settle, and I've spoken to a number of people in your community, there seems to be a lot of opposition because of the height of this huge structure that is proposed, which are four stories. Would reducing it to three stories, would that appease your neighborhood to some degree? John Settle: I think it would be very much in the right direction. Yes sir. Al Henley: Or would you see across the street. I know that across the street from Greenwich Road, there are some professional buildings and offices. If this plan was flipped-flopped, how would the community feel about that? John Settle: I think the community would embrace it even greatly. That was one ofthe ideas that we brought to the table. Could we slide the apartment complex on the other side of the street? Maybe move some of the offices over here. We also asked them in that same line of thought is can we do these developments at the same time. We seem to be putting the cart in front of the horse, and we just felt there were other motives for sticking to their A-36. Yes, I totally agree. We would really rather have the light industrial on this side, which is currently zoned with and have those buffers than have that tall structure of four floors,. Al Henley: Okay. Thank you. John Settle: Yes sir. Janice Anderson: Are there any other questions? Thank you. John Settle: Thank you ma'am. Donald Horsley: Our next speaker is Marcellus Heath. Janice Anderson: Welcome sir. Marcellus Heath: Good afternoon, Madame Chairman and Commission members. My name Item #18 Harmony Investments, Inc. Page 7 is Marcellus Heath. My wife and I have lived at 116 S. Parliament Drive for 28 years. We raised our daughter at this address, and from the first grade up through college. In 1980, when we were thinking of purchasing another home, we contacted a real estate agent and told her we were looking for a quiet neighborhood in a very stable area, preferably in the Kempsville section of Virginia Beach. She came back to us in a couple of weeks and told my wife that she had found a perfect house for us. I was out of town at the time so my wife called me, and she was so excited that I could hardly wait to get back. When I returned, and we both visited the property, we immediately decided that it was the home and the neighborhood for us. Through the years I have come to realize that most of the families still living in the area were original occupants or builders of the homes, which they presently occupy. And a number of instances when homes have been sold, the sons and daughters who were raised in the neighborhood are now occupying them. This is evidence of the stability that we have witnessed in this neighborhood. My wife and I, now in our retirement years, are looking forward to remaining in our home as long as health permits. Weare therefore opposed to the introduction of multi-family dwellings in the area, both from an aesthetic point of view and we are concerned with the possible financial effect on our property and the lowering of values. Therefore, we, along with an overwhelming majority of our neighbors, who you have seen stand here, are asking that you recommend denial of the request to rezone the property under consideration from 1-1 to A-36. We thank you for your indulgence and for your consideration. Janice Anderson: Thank you Mr. Heath. Are there any questions for Mr. Heath? Thank you. Donald Horsley: Our next speaker is William Dudley. William Dudley: Madame Chairman, Commission and staff. My name is William Dudley, and I live at 521 Executive Boulevard in Point 0' View. I've lived in the Point 0' View neighborhood for 17 years, although I look very youthful. You never knew that. And, I'm also the president of the Point 0' View Civic League. When we were meeting with the neighbors talking about this proposed project, and walking door to door, and talking with them, by a large margin, the number one question that came up time and time and time again was how is this going to affect the security of our neighborhood? Now, crime in a high- densely populated area is no secret. It goes up. And by putting a highly-dense development right at the foot, congruent to our neighborhood, can only do one thing if it follows trends and that is increase the crime rate. Walk through crime rate and things of that nature. Actually, I went on to the Virginia Beach website, the Police Department and the crime report from January 1,2009 through March 9,2009, reports significantly more crimes in an adjacent, highly densely populated neighborhood that is adjacent to our neighborhood. It is across the other side of Parliament. But, over twice the crime, the walkthrough crime, as it relates to walk through crime through our neighborhood that goes back to that other highly densely populated neighborhood is referenced there. They can build fences. They can build berms. They can plant shrubs. But none of that is going to stop walk-through traffic, crime, and that is going to be associated with a dramatic increase in population. So, the question that our neighbors have for you is, are you all willing to help protect us on this issue? Thank you. Item #18 Harmony Investments, Inc. Page 8 Janice Anderson: Thank you very much Mr. Dudley. Donald Horsley: Our next speaker is Gail Settle. Janice Anderson: Welcome. Gail Settle: Thank you. Madame Chairman, Commission members, staff, ladies and gentleman. My name is Gail Settle. I live at 5201 Academy Court in Virginia Beach. In the staff evaluation, the applicant's request, it states and I quote, "the proposed development considered by itself does not comply in every respect with the recommendations of the Comprehensive Plan" or Strategic Growth Area 3. If the Comprehensive Plan means anything please vote against this proposed rezoning. The Strategic Growth Areas focuses on a higher density development that will allow retail commercial and residential uses in a more compacted geographical area. That is the model. The goal is, I believe, what the City wants to see is that we have people live, work and shop within easy walking distance. I want to specifically address the live part of this triad, as it relates to this rezoning request. I would not feel safe. Let me back up a minute. There was some discussion at the previous Planning Commission meeting about how the apartment complex as going to be connecting to the proposed office building and the hotel across the street using walkways and crossways. I would not feel safe even if there are crossings or walkways on Greenwich Road connecting . these two properties. If the proposed flyover is built, a pedestrian would feel even less secure due to the influx of traffic. My point is that this area is not pedestrian friendly. The plan review addresses an increase in traffic, and it make sense that traffic will increase with this residential complex, but if I were a parent or a young professional out for a jog, I would be concerned about the traffic, but not only that but concerned about the type ofvehic1es traveling up and down Greenwich Road. I'm still continuing with the live part of the triad. Noise would be a concern and greatly impacts the quality oflife, and I hear the interstate actually everyday from my home. And this complex would be even closer to the interstate than my home is. When and if we get Light Rail, I see this complex as being subjected to noise from all sides regardless of how each of the three buildings are positioned on the property. Amenities are not very many. Down the street there is a Ruby Tuesday and a Denny's. What about necessities? A grocery store or a laundrymat are definitely now within walking distance? My point is that the complex is not suitable to the City's model oflive, work, and play. To summarize, I think viable planning supports growth and tax revenue. The City knows this. That is why we have guidelines such as the Comprehensive Plan. This is a stand-alone community. It is out of place. It's an elephant in the room. It's a spaceship. Point 0' View is a stable beacon oflight. By approving this zoning change you will dim this light forever. Thank you. Janice Anderson: Thank you Ms. Settle. Are there any questions? Thank you ma'am. Donald Horsley: That's all the speakers. Janice Anderson: Mr. Tisdale? I I I II Item #18 Harmony Investments, Inc. Page 9 Warren Tisdale: Thank you. Jay Bernas: Jan? Janice Anderson: Yes. Jay Bernas: Is it appropriate for me to ask staff a question now before we go to rebuttal? Janice Anderson: Yes. Jay Bernas: Can I ask Mr. Whitney a question? Jack Whitney: Of course. Jay Bernas: This is related to the Strategic Growth Areas. I guess my concern is that where we're at with the Strategic Growth Area 3, is that we haven't started any of the Charettes or anything like that yet, and looking at what we have in the Comprehensive Plan, you know, is says where appropriate residential uses. And part of the Strategic Growth Area processes, you get the public involved. You have these Charettes. With the number of people here, my concern is that once we get to that Charette part, they're not going want residential in this area. So, the thought that they're appropriate to have residential uses, you know, in getting the public input. I mean it's like they're almost all here. I guess my concern from a Strategic Growth Area standpoint, what do you think could come out of this? Because Newtown is a little bit different. It is different than Pembroke. This one sounds like it is more non- residential and residential where appropriate. Can you talk a little bit about Newtown in general? Jack Whitney: The good news about that is that we have identified funding and are getting ready to publish and advertise a request for proposals to begin that process, public involvement in more detail in planning, and up to date future considerations, that this Strategic Growth Area can play given today's realities. We've got for example 12 to 13, kind of if you include the Resort Area current Strategic Growth Areas. Less than half of them would have as a compatible use residential development due to AICUZ impacts. This would be one of those that residential would not be ruled out given that consideration. It buts up against Strategic Growth Area 4, Pembroke, and that same process is well underway right now in Pembroke, and it is going quite well. We would anticipate that the Newtown Strategic Growth Area process, which would include these kinds of Charettes that you mentioned, including all of the residents and all the other stakeholders that care to participate will begin, hopefully in late Spring, and that process would take 4 to 6 months. It is what our experience has been in other Strategic Growth Areas. We would look at a number of different options and scenarios, which mayor may not include residential development. We know that it is a heavily industrially zoned corridor. There is almost no residential development in the Strategic Growth Area as it is current configured. Not saying that we might make some changes to what we find geographically as the Strategic Growth Area. We're really excited about getting to that detail work. It has been a real pleasure where we Item #18 Harmony Investments, Inc. Page 10 have done it in the other Strategic Growth Areas. The possibility of Light Rail running through this corridor is a possibility. No decisions have been made officially yet, but we are in negotiations as everyone is aware to acquire the right-of-way along this property from Norfolk Southern Corporation. We also know that improvements to 1-264 including a flyover at Greenwich Road, is a very high priority project. Unfortunately, the funding for that is unclear at this point. Also unclear is when exactly those improvements could be made given the economic situation we all find ourselves in. Those plans include the cul-de-sacing of Greenwich Road. The role that Greenwich Road plays now is to be dramatically different if, and when, that project is built. It will be cul-de-sac. It will be a gateway between this Strategic Growth Area and the Pembroke Strategic Growth Area. The traffic will flow down Cleveland Street. You can see it up in the comer (pointing to PowerPoint). So the dynamics of the area will change. I'm not sure exactly what the timetable would be in all that. We've discussed all that. The applicant is well aware of all of those issues converging in this part of the city. We have encouraged mixed-use development as a planning principal in our Strategic Growth Areas. They are designed and intended to accommodate tremendous amount of future growth and redevelopment in the City. They were designed for that purpose. And where it is appropriate and on the basis of a lot of public input, there might be higher densities and different mixes of uses, including lots of trails and connectivity as part of the outcome of that process. We've encouraged the applicant, who also is involved in the properties on the other side of Greenwich Road, to look at planning and design concepts that would allow for more future integration of the parcels and opportunities for bike paths and other kinds of ways for people to connect and flow through this Strategic Growth Area. So there is a lot getting ready to happen right now. We feel at this point, in viewing this particular proposal, the concept of mixed-use and tying it together is consistent with the approach that the Comprehensive Plan has taken up until now, speaking of which, we are also heavily involved in the updating of that plan. The Comprehensive Plan was prepared, as you well know, in 2003. There has been a lot of changes in the community since then, and we've got to rethink a lot of the recommendations that the 2003 Comprehensive Plan included and our revision of that. So, there is a lot going on: Strategic Growth Areas, Comprehensive Plan update, major road and mass transit improvements. So, we're trying to take all of that into account. One of things that we are particularly proud of is the intensive degree of public involvement. As we move forward both on the Comprehensive Plan and the details of the Strategic Growth Area work, we certainly hope the folks here will, regardless of what happens with this particular application, join us and come together in a forum like this, and try to arrive at a community consensus for how we evaluate proposals like this and others in the future. Janice Anderson: Mr. Tisdale? Thank you. Warren Tisdale. Just a few points. The number of units that we have requested is 224. It is A-36. That is what we're asking for. What we're asking for is ten percent below what we would be entitled to under A-36. So it is not like were trying to cram as many units in there as we can. I'm not sure what the height is of the Virginian-Pilot manufacturing facility, but in terms of scope and scale and looking at things, it is has been there for a number of years I think it is approximately the same height as what we would be building. Certainly, the Item #18 Harmony Investments, Inc. Page 11 comments ofthe residents are well taken. But I'm especially interested in the comments of those who are actually right by the railroad. Certainly, if anybody has a reason to come up to tell you what they think about it, it's those ten houses. The rest of the neighborhood, and I know they have a great turnout here today, but the rest of the neighborhood, I think geometrically as you move away from it, certainly the scale argument loses a lot force. In the office buildings that we would put there in any kind of perceived switch would also be very high. They would have to be six stories. We have always assumed or least we can work with either plan, the Greenwich Road is cul-de-sac. That is okay. If it is not, that is okay. That really doesn't effect what we think we could do there to create this really great apartment of development, again to sort of hit on this response to various things that we've brought up. Thank you. Janice Anderson: Thank you. I have a question for Faith if! could? What's the height restriction for A-36 and what is the height on I-I? Faith Christie: It is double the distance of the building to the centerline of the road. Janice Anderson: Run that by me again? Faith Christie: Double the distance of the building to the centerline of the road. Janice Anderson: Okay. Faith Christie: So, if you're 60 feet from the centerline in the road, 120 foot in height. Janice Anderson: Okay. Karen Lasley: In the industrial, there is no rear line setback back there because it's the railroad right-of-way. Janice Anderson: So, they can build right up to their property line, and then, it could be a rather large structure there? Karen Lasley: Yes. Janice Anderson: Yes. Faith Christie: And the height for A-36 is 120 feet. Janice Anderson: 120. Kathy Katsias: Industrial is the same. Faith Christie: It could be more than that depending on how far they set their building back. Item #18 Harmony Investments, Inc. Page 12 Janice Anderson: Okay. Thank you. I'll open it up for discussion. Go ahead Henry? Henry Livas: I have a question. If we lowered it down to three stories, does that impact a lot on the rent and make it not economically feasible? How would that affect you? Warren Tisdale: Certainly, I don't know ifit would impact the rents, but taking it down to three keeps you from getting the units that we need to make it work. We lose a quarter of the units. David Redmond: Ms. Christie? Let me ask you something. A number of speakers made reference to this, which is the application is not in every way conforming to the Comprehensive Plan. Can you give us a thumbnail sketch of the ways in which it does not? Is that easier than Jan's question? I thought Jan's question was hard. Faith Christie: No. Actually the application as a stand-alone application does not comply with the Comprehensive Plan. David Redmond: It's the mixed use of it. Faith Christie: It's the mixed used of the proposed overall development for the property to the north of the offices and the hotel that makes it comply with the Comprehensive Plan. David Redmond: Okay. My view, Mr. Ripley mentioned this morning and I sort of agree with him, I view this as a stand-alone site. If you look at the two together, they are about as funny as the point at the end of that property, and that kind of activity is going to be extraordinary in terms of making them function as one integral unit. But that is a challenge. It is not a death sentence in my view. I will say this though. And I'm still struggling with this and I'm struggling with it for a couple of reasons. For reason number one is because there is an awful lot of people who oppose it. But, with all that said, this is an area where we intended for growth to occur. It is a Strategic Growth Area. As we get into the Strategic Growth Area process, and it begins to work out over not just this spring, but over years, we are going to run into some places we have not been before. And, this is a little bit different. I will say this to the folks who oppose it. I don't see frankly, the enormous attraction to 1-1 Light Industrial. There are a lot of things in I-I that are not all that much fun. This building to me looks an awful lot more attractive than does the Virginian-Pilot plant. Traffic that would be involved with it will be at least residential as opposed to newspaper trucks at 5:00 in the morning. My father built an office on Greenwich Road probably about 40 years ago. I've been up and down it my entire life before he died. So, I'm well familiar with it. I frankly think that the addition of more diverse uses other than simply light industrial would probably be good thing. And, I do think that what we have seen today is better than what we saw a month ago. I am concerned, and I don't know what my answer is but [would not wed myself to 1-1 Light Industrial. There are plenty of things there can turn out badly and turn out ugly and turnout undesirable. It is not going to remain as it is today. It is not simply going to be a vacant property so, with that. II Item #18 Harmony Investments, Inc. Page 13 Janice Anderson: Thank you Dave. Jay? Jay Bernas: Initially, I thought that the plan was fine. It had mixed-use. It was higher density. That is what we wanted in the Strategic Growth Areas, but after seeing the significant turnout, from the adjacent neighborhood, my bigger concern is how does this development fit in the big picture of Strategic Growth Area 3? My biggest concern is that since we haven't gotten started with that strategic planning, and we haven't had these Charettes. In those Charettes, you're in there hands-on trying to help shape their community. And, I'm just concerned that we're just looking at this small piece of the puzzle and the big puzzle and the big picture ofthe Strategic Growth Area, and that if we were a little bit further along. Ifwe had the Charette process, but I'm guessing they want 1-1. I wouldn't be comfortable living next to 1-1 honestly, but that is what they say they want. We've got to listen to the community. That is what we are here to do. For me, initially like I said, I thought it was a decent plan, but now taking a step back and looking at the big picture, listening to the citizens, I'm not sure I can support it. Janice Anderson: Thank you Jay. Ron, then AI. Ronald Ripley: A couple of things, and I'll echo what Dave said about the Strategic Growth Area. The purpose of the Strategic Growth Area is to find an area that we can actually grow as a city, and not grow out into the neighborhoods. You run into clashes, as this is what we have here, or right abutting a neighborhood. And, I think that brings up a point that, and it is a valid point too, but it is a point that was addressed in the Pembroke Implementation Plan that we have just been working on, where there were concern when we were looking at the Strategic Growth Area and any area that is adjacent to a residential area, the concerns were exactly this. They try to buffer proper so there is a good relationship between the neighborhood and the increasing Strategic Growth Area growth, if you will. I think the applicant has attempted to address this by providing the fencing and the landscaping that will eventually grow to be a substantial buffer. I think in the process of the light rail, and we are going to be going through that process, that part of it ought to be the consideration of a buffer on the other side of the right-of-way that buffers their property as well. In fact, that could be part of the overall infrastructure. And, I just don't bring this neighborhood up. It is the neighborhood that we're talking about right now. But that is actually the case along the light rail, and the Charettes that we have just been through. Those were the discussions. That was very important. Those kinds of buffers could be developed to help ensure the quality of the neighborhood. There is going to be this clashing, and when you get the light rail running up and down there that is going to be a noise element. There is a noise element from the road, and I know that because we own property near the roads too. You do get this elevated noise level coming off the expressway. A positive thing, and I know the height seems to be negative, but a positive thing is a massing of the building, which helps insulate the sound to the neighborhood. That is a very positive thing. I'm telling you that anytime you raise the level of the road, and that expressway is a raised elevated road, you get a higher level of noise coming off of it. And this will help buffer those noises as would an industrial building too. I'm not overlooking that. I'm just saying that one of the benefits of the height of this building is the buffering of noise. I think the application is, and I'm going to support the Item #18 Harmony Investments, Inc. Page 14 application. I think they have addressed the needs, and I think they have tried to address the concerns of the residents the best they could do, and I will be supporting it. Janice Anderson: Thank you Ron. AI? Al Henley: I try to keep an open mind on everything that comes before the Planning Commission, and I have given this a lot of thought. I've spoken to the applicant a number of times. I greatly respect him, and have known him for a very many years. But, I think the key element here is. Let me back up a little bit. The City of Virginia Beach in the early history has been criticized greatly for its poor planning and for not allowing to spot development and whatever comes out of that it is, what we thought at that particular time was a great opportunity for the City and the citizens go live in, and we learned from that poor planning is that those neighborhoods are those strip shopping centers today because of the aging and because there is a lot of recent spoil 0 that. Those things do not fit properly in a residential neighborhood or even a business district. We, the City, said we need to do some hard work. We need to involve our citizens more. How many times have we heard City of Virginia Beach, please include us? Weare the taxpaying citizens and we need to be heard. We need to please listen to us, and working together we can develop a plan that hopefully will be a win-win situation. Right now the City of Virginia Beach, again the Planning Commissioners and the staff, have been wonderful to work with, is going through the City's Comprehensive Plan. We've had public meetings. We've had numerous positive comments from our citizens. And the Planning Commission says well, and we sit down, if you will around the roundtable, and we see what is good. What is bad? What's maybe? And we may jumble it up and we took away from things. We put strong points here. We take away the weak points. And hopefully with the Comprehensive Plan we're going to develop very soon, is going to be the shining star in the City's Crown and it is going to be the best we've ever had. I think, really, there is nothing wrong with strategic growth, but I think before strategic growth moves along, we need to have strategic planning, and that means, as Jack has indicated, that when that develops the neighborhoods throughout the cities, regardless what strategic area your in, those areas neighborhoods will come out and a lot of good comments will come out of that. And, it will be fed back, and those are wonderful ideas, just like we said about the Comprehensive Plan. I think that is the most important thing. I think I'm not really sure what is good for this neighborhood. I really don't know. I haven't seen a strategic plan. Virginia Beach is very excited about its growth. But I, for one, and I know that everyone in this room who lives here and works here, has a great deal of pride in the City of Virginia Beach, and I do in particular myself. But, when we begin to lose pride is when we begin to lose faith in our City leaders. We don't want to do that. We want our citizens to have faith in our leaders, from our Council people, our Planning Commissioners and to our staff, and if we don't listen to those people, we're not doing our job, in my personal opinion. With the light rail coming on, and I attended a half day and I was unable to attend some of the others, such as the Pembroke Revitalization Plan. And there were a lot of good leaders there. A lot of city folks. It was a long range planning. It was a 50 year plan. I don't think I'm going to be here in 50 years, but that is not the point. The point of it is that we're doing some strategic planning on what the Pembroke area Town Center will be, and what hopefully what the Greenwich Road area, and what Pungo will be, and all of these other areas, because II Item #18 Harmony Investments, Inc. Page 15 we're all one giant community. We're so diverse. That is what makes Virginia Beach so attractive to so many people. So, I love to see development in the City, but this particular one, and as one lady said, it appears to be a white elephant into an area that I don't really think at this particular time of the game, that we're ready to massage. Another point is this, and Ron Ripley brought a good point, is that the raised elevation of 1-264, and you do get a lot of noise, and I'm sure the resident hear some of that. Keep in mind that any kind of structure, whether it's this structure or whether it is a manufacturing plant, it is going to be hard barrier between you and the railroad. And, if that railroad comes through, the noise that is generated from that light rail is going to be reflected into your neighborhood. So, keeping in mind in this strategic planning is that they put sound barriers on the interstate. That might be something you might want to consider and keep this in the back of your mind. Is this going to be necessary? Is it a good idea? Is it a bad idea? Is it going to be unattractive? So, just keep that in mind as well. That is all. Thank you. Janice Anderson: Thank you AI. Go ahead Don. Donald Horsley: Jack, I got one question. How long have these Strategic Growth Areas been in affect? Jack Whitney: Since 2003. Donald Horsley: Okay. Do you feel that this development is still premature for the Strategic Growth Areas? Do you think that we are just not quite far enough along yet? Jack Whitney: I had offered this as an option to the applicant to consider whether or not they would entertain a deferral for the purpose of vetting this through that process. But it is ultimately the applicant's choice to move forward or request a deferral of the Planning Commission and Council's ultimate action. I would feel more comfortable about it ifit were more an outgrowth of the community is vision for that strategic growth on the other end of that process. Donald Horsley: Because you know, I am like Ron. I like the project. I think it is a very good project. But I think it just may be a little bit before its time. I don't know how far away we are from it, but 2003, I don't know how many years it takes to get plans implemented, but this is going into the 6th year, and I'm just a little bit concerned about shooting a little bit early on this deal and not getting it not like it really needs to be, because back in 2002 when it was decided to have these growth areas, it kind of made a decision that we were running out ofland outside, and we needed places to grow, and we designated these growth areas as places to grow, and now were getting people ready to do it, and we're going to hold them back. Jack Whitney: When they were identified, they were identified. But no detail planning was embarked upon, so they pretty much sort of sat there dormant in action. In the past year or so, we have become much more aggressive in funding and developing detailed plans in those areas as part of the Comprehensive Plan process. And in response to Mr. Bernas' question Item #18 Harmony Investments, Inc. Page 16 earlier, this particular SGA is the next one in line. We've got the money to do it. We're getting ready to advertise for RFPs, and I would anticipate by the fall of this year, that process will be complete, and we will be ready to come back to you and the City Council with a detailed recommended plan for SGA 3. Donald Horsley: For this area regardless? Okay. Janice Anderson: My concern about this was we asked and the applicant came last time. It looked like a good plan. And we asked him to meet with the neighbors to try to clear up issues with the neighbors. Unfortunately, that wasn't all solved, but there was something that came out of it. There was a fence separating the properties, which they had requested and some screening. My problem is holding the applicant up again. The SGA's have been around since 2003. I think it follows our plan actually. It asks for mixed-use residential with offices and hotel, and that is what you have now. Now, I know that people can move things around. I don't think it is proper to move the residents to the top portion, which they also own because you're going to have the flyover there. So, where they place the residential housing, and I think it is proper, and that is good planning. The other issue is that it is a rezoning to something I think is less intense. It is an 1-1 zoning right now. And, as we know that the height of these buildings, industrial can be much higher than that. So, the statement is it is going to be different than it looks like now. It is going to be tall buildings stuck there. Of course, industrial could be a tall building stuck there too as it is currently zoned. It is just going to be developed now. I think they have done a good job on the elevations. It is a nice quality. It is not a wall. They have features on it. It doesn't connect to the neighborhood, which I listened to their concerns. Their concerns, and at first we heard was the crime is going to come across the light rail. And, they put the fence up there. A six foot fence. I don't think people are going to be climbing six foot fence to get over. You can't stop all crime. You fear a lot of things but I just don't see it here. They separated the neighborhood. The access to this parcel is through Greenwich Road? It doesn't come through the neighborhood. So, you're not going to have actual traffic, which e hear a lot of times when you're adding on residential that there is going to be more traffic through my neighborhood. That is not what it is going to be. If we look at reduced property values that was concern they had. I don't see that being an issue here. It is a different product here. And this is what we always wanted in the Comprehensive Plan. You wanted heavily zoned, more condense housing. SGA's and most of them around Oceana you can not put any residential there, so this is where we are earmarking it to be heavier. I do think it is appropriate. I think there is a big buffer there. I'm sorry that the neighbors don't like the proposal. I think it is better than what we have as industrial zoning. Let's see? The other thing is with the office space and the hotel? It is my understanding is that they don't have to come back for a rezoning or anything. They can build it as it. And so far as connectivity, I believe there will be connectivity. The plans, if you look down the future probably will be a light rail that will go behind there. And also there will probably be a cul-de-sac of Greenwich Rod. So, you are not going to have this traffic going through. It will be cul-de-sac. People going to this residential here or they are going to the office space next door. There will not be much through traffic. I think it would be appropriate to have a cross over connectivity there, so actually I like the proposal and I'm in support of it. II I Item #18 Harmony Investments, Inc. Page 17 Eugene Crabtree: Jan? Janice Anderson: Yes. Eugene Crabtree: Everybody else has spoken. I incline to agree with you that it is not going to have through traffic. That it is going to be a cul-de-sac. The light rail is going to block the other side of it when light rail goes through they are going to put up structures to protect their property and separate the two. This property from the neighborhood is going to be totally separate. This is a very high end project, and this is on more to our north end of the city going toward Newtown Road that eventually is going to connect the things that we have got started in Town Center, and we're beginning to move down through that corridor along Town Center along Cleveland Street, and everything, and what's going to come in on the other side ofthe interstate. And eventually there is going to be along the light rail tracks in that area connectivity all the way from Town Center down to this area, and going to eventually going to move down to Newtown Road to where the Norfolk Light Rail and the Virginia Beach Light Rail will connect. We're talking about 50 years or so in the future. And Al says, we may not be around to see it. But it is going to come about eventually. So, why penalize this high end project for doing something that is going to connect these things eventually. And everybody is the old adage. Not in my backyard. Everybody wants to see improvement in the City. They want to see high end quality things but don't do it in my backyard. Go some place else and do it and into somebody else's neighborhood. I lived in this city for over 50 years, and I have seen it happened time and time again in my neighborhood. And, from my standpoint of view, I sympathize because I'm going to be in the same situation along that light rail with the neighborhood when they start building things. I live about from two blocks from where that light rail is going to go though. If that ever happens, I am going to be right in the same situation these folks are in. But I'm going to . have to live with it. Consequently, it is a high end project. I just think its' a start of getting something done in that entire corridor. Janice Anderson: Thanks Gene. Henry? Henry Livas: Yes. I wanted to weigh in and say that I still support the project. I did support it last month, and I haven't heard anything differently. Unfortunately, there hasn't been a lot of compromise. However, the applicant did put the fence up, and I think that is going to help a lot. Some of the concern about crime, I just don't think that is going to materialize that much. Whatever development goes over there, I don't think it is going to make crime more preventable. Also, you got the light rail coming in. Eventually, I think later on when that comes in you're going to see this is a very minor event compared with the light rail. I am impressed with the group that came out here. Some of which I know, but I think I have to look at what is good for the city in general, and we certainly need housing. And as Jack mentioned, there are a lot of areas we are not be able to put housing in because of the restrictions with the Navy_ So, this applicant has complied with everything that we have asked him to do so far. The flyover is not a problem. It was mentioned that it was a problem before. I think we have cleaned up the architecture and the quality of the structure problem. Item #18 Harmony Investments, Inc. Page 18 It is a quality project as some of colleagues have just mentioned. So, I would support the application. I'm ready for a motion unless someone else wants to talk? Janice Anderson: Thank you Henry. Are there any more comments? Do I have a motion? Henry Livas: I move that we approve the conditional change of zoning from Light Industrial to Conditional A-36 Apartment District. Janice Anderson: A motion by Henry Livas. Is there a second? Ronald Ripley: I'll second it. Janice Anderson: A second by Ron Ripley. ANDERSON BERNAS CRABTREE HENLEY HORSLEY KA TSIAS LIVAS REDMOND RIPLEY RUSSO STRANGE AYE 7 NAY 3 ABSO ABSENT 1 AYE NAY AYE NAY AYE AYE AYE AYE AYE NAY ABSENT Ed Weeden: By a vote of7-3, the Board has approved the application of Harmony Investments, Inc. Janice Anderson: Thank you all for coming down today. We appreciate it. Is there any further business? Donald Horsley: No further business. Janice Anderson: The meeting is adjourned. , II Item I: APPLICANT DISCLOSURE Harmony Investments, Inc. o Mark F. Garcea o Page S. Johnson, II Item 1: Manufacturing Properties: M & G Electronics Corporation 889 Seahawk Circle Virginia Beach, Virginia Commercial Properties: Northampton Executive Center 1300 Diamond Springs Road Virginia Beach, Virginia Greenbrier Executive Center 1413-17 Battlefield Boulevard Chesapeake, Virginia S81ll Street Warehouse, LLC 17 Acres - Greenwich Road Virginia Beach. Virginia Retail Shopping Properties: Kristal Lake Shores, Inc. 5300 Shore Drive Virginia Beach, Virginia Guest Service Properties: Ramada Limited 3108 Atlantic Avenue Virginia Beach. Virginia Hampton Inn 701 Woodlake Drive Chesapeake, Virginia Four Points by Sheraton 351 York Street Williamsburg, Virginia DoubleTree Hotel 1900 Pavilion Virginia Beach, Virginia Hampton Inn & Suites Norfolk Airport 1511 USAA Drive Norfolk. Virginia Marine & Industrial Plastics. Inc. Highway 17 N Pollocksville, North Carolina Branch Executive Quarters 4012- 16 Raintree Road Chesapeake. Virginia Crossway Center 1435 Crossway Boulevard Chesapeake, Virginia 3 10 East Street, LLC 6.98 Acres - Greenwich Road Virginia Beach. Virginia Woods Comer Shopping Center 1920 Centerville Turnpike Virginia Beach, Virginia Super 8 2604 Atlantic A venue Virginia Beach, Virginia Wyndham Virginia Beach Oceanfront Oceanfront & 57'h Street Virginia Beach, Virginia Hilton Norfolk Airport 1500 N. Military Hwy Norfolk, Virginia Ramada Inn 1776 725 ByPass Road Williamsburg, Virginia Hampton Inn & Suites 142 r Battlefield Blvd Chesapeake. Virginia DISCLOSURE STATEMENT HARMONY INVESTMENTS, INC. Agenda Item 18 Page 15 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7299 DATE: March 13, 2009 TO: FROM: Mark D. Stiles.i~ B. Kay Wilso~ DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Harmony Investments, Inc. - Conditional Rezoning The above-referenced conditional zoning application is scheduled to be heard by the City Council on March 24, 2009. I have reviewed the subject proffer agreement, dated March 12,2009 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen./ III Prepared by Warren L. Tisdale Willcox & Savage, P.C. One Commercial Place, Suite 1800 Norfolk, VA 23510-2197 AGREEMENT Tms AGREEMENT (the "Agreement") is made as of this 12th day of March, 2009, by and between 310 EAST STREET, LLC, a Virginia limited liability company, the current owner of that certain property located on Greenwich Road, in Virginia Beach, Virginia, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"), HARMONY INVESTMENTS, INe., a Virginia corporation, the proposed developer of the Property (310 East Street, LLC and Harmony Investments, Inc. are hereinafter referred to collectively as the "Grantor"), and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the property from 1-1 to Conditional A-36; 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 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 A-36 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 A-36 zoning districts by the existing City's Zoning Ordinance ("CZO"), the following reasonable conditions related to the physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and GPIN NO.: 1467-54-6228 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 the ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2-2204, which said ordinance or resolution shall be' recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantor, for itself, its successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby. covenant and agree that these proffers (collectively, the "Proffers") shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. When developed, Grantor shall develop the dwelling units upon the Property in substantial conformity with the conceptual site plan prepared by MSA, P.C., dated March 11, 2009, and titled "Conceptual Site Layout and Landscape Plan of Greenwich Village, Greenwich Road, Virginia Beach, VA" (the "Conceptual Plan"), a copy of which is on file with the Department of Planning and has been exhibited to the City Council. 2. When developed, the structures shown on the Conceptual Plan shall be developed using architectural designs and building materials shown on the rendering by Cox, Kliewer & 2 1-868075.1 II I Company, P .C. dated October 31, 2008 and titled "Conceptual Apartment Building Front Elevation; Greenwich Village; Greenwich Road; Virginia Beach, VA," a copy of which is on file with the Department of Planning and has been exhibited to the City Council. 3. 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 CZO, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantor covenants and agrees that (a) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, 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; (b) 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; (c) 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 review thereof prior to instituting proceedings in court; and (d) 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 Department of Planning and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. [SIGNATURE PAGE FOLLOWS] 3 1-868075.1 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: 310 EAST STREET, LLC, a Virginia limited liability company By. ~ Page S. Johrison, II, Authorized Member of 310 East Street, LLC HARMONY INVESTMENTS, INC., a Virginia corporation By. ~ Page S. Jo son, II, Vice-President COMMONWEALlH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was sworn to and acknowledged before me this I;).... day of _~ ,2009, by Page S. Johnson, II, who is personally known to me or has produced identification, and who signed in his capacity as Authorized Member of 310 East Street, LLC, and in his capacity as Vice-President of Harmony Investments, Inc. My Commission Expires: (h~.. Registration Number: Notary PUbliC Commonwealth of Virginia My CommlnlOn Expires Mav 31. 2010 4 1-868075.1 II EXHIBIT A ALL THAT certain tract of land with the improvements thereon and appurtenances thereunto belonging situate in Bayside Borough in the City of Virginia Beach, Virginia, and designated PARCEL "2" on that certain plat entitled "AMENDED RESUBDIVISION OF PARCEL 'A-I' AND PARCEL 'C', 'SURVEY OF PROPERTY FOR LANDMARK COMMUNICATIONS, INC.' (MB 78, PG 31), VIRGINIA BEACH, VIRGINIA", made by MSA, P.C., dated April 17, 2008, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument No. 20080430000501660. IT BEING a portion of the same property conveyed to Landmark Communications, Inc., a Virginia corporation, by deed from E.V. Williams Company, Inc., a Virginia corporation, dated December 27, 1968 and recorded December 27, 1968 in the Clerk's Office of the Circuit Court of the City ofVirgin~a Beach, Virginia in Deed Book 1091 at page 239. 1-868075.1 II L. UNFINISHED BUSINESS 'II M. NEW BUSINESS N. ADJOURNMENT PROPOSED RESOURCE MANAGEMENT PLAN FY 2010 BUDGET WORKSHOPS April 7 April 14 April 21 April 23 April 28 May 5 May 12 Workshop Workshop Workshop Public Hearing (changed from April 16) Workshop and Public Hearing Reconciliation Workshop Public Hearing for Adoption Council Conference Room Council Conference Room Council Conference Room Green Run High School- 6 p.m. Council Chamber - 6 p.m. Council Conference Room Council Chamber - 6 p.m. ********* 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 0312412009.afb www.vbl!ov.com "I CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V I DATE: 03/10/2009 L D S L PAGE: I E D H E A W D S I E J S U N I AGENDA A T E 0 N 0 S H U L W ITEM # SUBJECT MOTION VOTE V E Z Y L N 0 R E S 0 I P E E E E M I V 0 0 S H L R Y S S N A N D I/A CITY COUNCIL BRIEFING: STRNING FOR EXCELLENCE James K. Spore, City Manager II/III/IV N / CERTIFICATION OF CLOSED CERTIFIED 9-0 Y A Y A Y Y Y Y Y Y Y VIlE SESSION VI/F MINUTES APPROVED 9-0 Y A Y A Y Y Y Y Y Y Y InfonnallFonnal Sessions 2/24/09 GfHll PUBLIC HEARINGS: SALE OF EXCESS CITY PROPERTY No Speakers a. 212 Gatewood Avenue, et al b. I \3 Middle Lane, et al CAPITAL BUDGET AMENDMENT FOR No Speakers FY 2007-08 Communications Technology Grant I/J/l Resolutions REFERRING to Plann Comm ADOPTED. BY 9-0 Y A Y A Y Y Y Y Y Y Y Ord to AMEND Sect 20 I of CZO re CONSENT setbacks: a. front porcheslhandicapped ramps b. enclosed piers 2 Ords re City Code: a. AMEND Sect 21-230 re traffic ADOPTED. BY 9-0 Y A Y A Y Y Y Y Y Y Y calming in Bayc:liflLakeview Park elf CONSENT Januarv 27, 2009 b. UPDA TE/CORRECT Sect 2-1931 ADOPTED. BY 9-0 Y A Y A Y Y Y Y Y Y Y 2-232/2-237/2-474 re Government CONSENT Admin 3 Resolutions to APPOINT: ADOPTED, BY 9-0 Y A Y A Y Y Y Y Y Y Y CONSENT a. Christopher S. Boynton, Deputy City Attorney . b. Michael A. Beverlyffeny L. Jenkins, ADOPTED, BY 9-0 Y A Y A Y Y Y Y Y Y Y Associate City Attorneys CONSENT . CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V I DATE: 03/10/2009 L D S L PAGE: 2 E D H E A W D S I E J S U N I AGENDA A T E D N 0 S H U L W ITEM # SUBJECT MOTION VOTE V E Z Y L N 0 R E S 0 I P E E E E M I V 0 0 S H L R Y S S N A N D 4 Ordinances to DECLARE EXCESS City ADOPTED, BY 8-0 Y A Y A Y Y A Y Y Y Y property/AUTHORIZE sale: CONSENT B S a. Ocean Bay Homes, Inc. for $320.500: T A 212 Gatewood Ave 308 N. Oceana Blvd I 1512 New York Ave 2248 London St N 1520 New York Ave 2216 Reuben St E 1516 New York Ave 2217 Reuben St D 1548 Ohio Ave b. Murray Homes, Inc. for $110,000: ADOPTED. BY 9-0 Y A Y A Y Y Y Y Y Y Y CONSENT 113 Middle Lane 224 Middle Lane 1545 Ohio Avenue 5 Ord to AUTHORIZE Management ADOPTED. BY 7-1 Y A Y A N Y A Y Y Y Y Agreements for SportsplexlUS Field CONSENT B Hockey/ Ground Lease/Option S Agreement for retail T A I N E D 6 Ord to AUTHORIZE encroachments into ADOPTED, BY 8-0 Y A Y A Y Y Y A Y Y Y portion of City-owned property (Rudee CONSENT B Inlet) for HOME ASSOC OF VA, INC. re S wooden piers at 232/236/240 Indian T Avenue. DISTRICT 6 - BEACH A 1 N E D 7 Ord to AUTHORIZE REDUCE FY ADOPTED. BY 9-0 Y A Y A Y Y Y Y Y Y Y 2008-09 operating budgets/reallocate CONSENT fundiDl~ re enel'2yrrax Relief 8 Ord to APPROPRIATE $600,000 ADOPTED, BY 9-0 Y A Y A Y Y Y Y Y Y Y AUTHORIZE Agreement with Biznet, CONSENT Inc. re independent living bousing. 9 Ord to APPROPRIATE $285,107 re ADOPTED, BY 9-0 Y A Y A Y Y Y Y Y Y Y Juvenile offenderslMR disabilities CONSENT 10 Ord to ACCEPT/APPROPRIATE ADOPTED, BY 9-0 Y A Y A Y Y Y Y Y Y Y $67,563 cash in-lieu-of park CONSENT reservation KlI JACK GLASER Nonconforming Use at ALLOWED 9-0 Y A Y A Y Y Y Y Y Y Y 3751 DuPont Circle. DISTRICT 4 - WITHDRAWAL. BA YSIDE BY CONSENT "I CITY OF VIRGINIA BEACH SUMMARY OF COUNCUACnONS V I DATE: 03/10/2009 L D S L PAGE: 3 E D H E A W D S I E J S U N I AGENDA A T E D N 0 S H U L W ITEM # SUBJECT MOTION VOTE V E Z Y L N 0 R E S 0 I P E E E E M I V 0 0 S H L R Y S S N A N D 2 BEVERLY W. ARMSTRONG DEFERRED 9-0 Y A Y A Y Y Y Y Y Y Y Noncoriforming Use at 7300 73nl Street. INDEFINITELY, DISTRICT 5 - L YNNHA VEN BY CONSENT 3 ASSOC FOR RESEARCH! APPROVED/ 8-0 Y A Y A Y Y A Y Y Y Y ENLIGHTENMENT, INC. (A.R.E.) CONDITIONED, B Noncoriforming Use at 215 6'f' re new BY CONSENT S edueational building/parking lot/two (DELETED T eotrances from 671h St. DISTRICT 5 - CONDITION A LYNNHAVEN NO.5) I . N E - D 4 DAVID W. KOEHLER- MODIFIED 9-0 Y A Y A Y Y Y Y Y Y Y PFOTENHAUER at 2180 McComas Way: PROFFER! APPROVED a. Modification of Proffer No.8 re a skate CUP AS park CONDITIONED, BY CONSENT b. CUP re iodoor recreatiooal facility DISTRICT 7 - PRINCESS ANNE 5 OLIVIA DANIELS CUP private APPROVED/ 9-0 Y A Y A Y Y Y Y Y Y Y scboolldaycare at 3108 Macdonald Road. CONDITIONED. DISTRICT 2 - KEMPSVILLE BY CONSENT 6 ALEXIS HOLDINGS L.L.C. CUP re APPROVED/ 9-0 Y A Y A Y Y Y Y Y Y Y vehicle sales/reotaJ/service at 3962 CONDITIONED. Bonney Road. DISTRICT 3 - ROSE HALL BY CONSENT 7 PONTIAC ARMS APARTMENTS, APPROVED/ 9-0 Y A Y A Y Y Y Y Y Y Y INC. CUP re commercial parkiog lot at CONDITIONED. 40221" Street. DISTRICT 6 - BEACH BY CONSENT 8 WOWII, L.L.C. CUPermit college or APPROVED/ 9-0 Y A Y A Y Y Y Y Y Y Y university/beauty salon-spa at 170111707 CONDITIONED, Will 0' Wisp Drive. BY CONSENT DISTRICT 5 - L YNNHA VEN 9 THUMMEL ASSOCIATES, L.C. CUP APPROVED/ 9-0 Y A Y A Y Y Y Y Y Y Y re vehicle sales/service/bulk storage at CONDITIONED, 1752 Virginia Beach Blvd. BY CONSENT DJSTRlCT 5 - BEACH 10 1250 CENTERVlLLE, L.L.c. at 2120 APPROVED/ 9-0 Y A Y A Y Y Y Y Y Y Y Centerville Turnpike: PROFFERED/ CONDITIONED, a. C02 from 8- to Conditional A-24 BY CONSENT b. CUP re fuel sales/convenience storel multi-family dwellings DISTRICT I - CENTERVILLE II CITY re CZO: DEFERRED 9-0 Y A Y A Y Y Y Y Y Y Y INDEFINITELY. a. DELETE Section 201(b) re setbac:ks BY CONSENT CITY or VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS V I DATE: 03/10/2009 L D S L PAGE: 4 E D H E A W D S I E J S U N I AGENDA A T E D N 0 S H U L W ITEM # SUBJECT MOTION VOTE V E Z Y L N 0 R E S 0 , 1 P E E E E M I V 0 0 S. ,H L R Y S S N A N D b. AMEND Sect 211/230 re sigDage (or APPROVED, BY 9-0 Y A Y A Y Y Y Y Y Y Y religious uses CONSENT L APPOINTMENTS: DEFERRED COMPENSA nON BOARD Appointed 9-0 Y A Y A Y Y Y Y Y Y Y Councilman James 1. "Jim" Wood-no term HUMAN RIGHTS COMMISSION Appointed 9-0 Y A Y A Y Y Y Y Y Y Y William A. Hearst 3 year term 04/01/2009- 03/31/2012 M/N/O ADJOURNMENT 6:15PM PUBLIC COMMENTS 6:16PM- NOD-AgeDda Items 7:37 PM 4 subjects/IS soeakers PROPOSED RESOURCE MANAGEMENT PLAN FY 2010 BUDGET WORKSHOPS March 24 City Manager's Presentation of Budget and CIP to City Council Council Chamber - 6 p.m. April 7 April 14 April 16 April 21 April 28 MayS May 12 Workshop Workshop Public Hearing Workshop Workshop and Public Hearing Reconciliation Workshop Public Hearing for Adoption Council Conference Room Council Conference Room Green Run High School - 6 p.m. Council Conference Room Council Chamber - 6 p.m. Council Conference Room Council Chamber - 6 p.m.